Opinion
No. 36378.
March 10, 1947.
1. CRIMINAL LAW.
Refusal to continue case on account of absence of defendant's witness was not reversible error, where all that absent witness knew was that deceased was aggressor and such fact was proved by other witnesses and evidently believed by jury.
2. CRIMINAL LAW.
When all instructions granted at defendant's request were read together with those granted for State, jury would not be held to have been misled to prejudice of defendant, especially considering fact that verdict was of manslaughter and not of murder.
3. CRIMINAL LAW.
An assignment that verdict was against weight of evidence would not be entertained on appeal, in absence of a motion for new trial without a showing that such point was waived by Attorney General.
APPEAL from the circuit court of Yazoo county. HON. H.B. GILLESPIE, J.
Henry Barbour, of Yazoo City, for appellant.
The appellant, James Holmes, was indicted in October 1945 for the murder of Sam Ingram, convicted of manslaughter in the circuit court of Yazoo County, Mississippi, at the April 1946 term, sentenced to four year imprisonment, and he appeals. His defense was self-defense and the testimony shows without dispute that at the time of the killing the defendant, James Holmes, had left the deceased, Sam Ingram, and two companions, Nathaniel Moore and Claiborne Haymer, after an argument at Ace White's Cafe and had gone five blocks away to Mose Fox's Cafe. When he came out of Mose Fox's, the three boys, Sam Ingram, Claiborne Haymer and Nathaniel Moore, all armed with bricks, were waiting for him at the door of the cafe. In the altercation which followed Sam Ingram was shot and killed by the defendant, acting in self-defense. Marie Ross, the most material witness, left unexpectedly for Detroit the day Court opened, two days before the defendant was forced to trial. Her testimony in the preliminary trial, taken by the court stenographer, proved that the deceased was the aggressor, and defendant could not make the proof by any other witness. She had been subpoenaed by the State and not excused, but had left when the sheriff attempted to serve subpoena for defendant. Motion for continuance was overrule and defendant forced immediately to trial on first day of the criminal docket and his motion to have read to the jury testimony of this witness taken at the preliminary trial under cross-examination, by the attorney prosecuting this case, Hon. T.H. Campbell, Jr., was denied.
The circuit court erred in overruling appellant's motion for a continuance.
Busby v. State, 177 Miss. 68, 170 So. 140; Cruthirds v. State, 190 Miss. 892, 2 So.2d 145; Dobbs v. State, 96 Miss. 786, 51 So. 915; Watts v. State, 90 Miss. 757, 44 So. 36; Cade v. State, 96 Miss. 434, 50 So. 554; Coker v. State (Fla.), 89 So. 222.
The circuit court erred in granting State's instruction No. 2, which is as follows: ". . . And in this case, if you believe from the evidence beyond a reasonable doubt, that the defendant, James Holmes, fired the fatal shot which killed Sam Ingram at a time when James Holmes was not in any immediate danger, real or apparent, of losing his life or suffering great bodily harm at the hands of Sam Ingram, then the defendant, James Holmes, is guilty either of murder or manslaughter; murder if he acted of his malice aforethought, and manslaughter if he acted without malice."
Ross v. State, 185 Miss. 438, 188 So. 295; Busby v. State, supra.
The circuit court committed reversible error in granting State's instruction No. 3, which is as follows: "The court charges the jury for the State that murder is the felonious killing of a human being with malice aforethough, and with the premeditated design to take the life of the party killed; and that manslaughter is the felonious killing of a human being in the heat of passion and in sudden combat and without malice aforethought and without the deliberate design to take the life of the party killed."
Ivy v. State, 84 Miss. 264, 36 So. 265; Rutherford v. State, 100 Miss. 832, 57 So. 224; Smith v. State, 167 Miss. 85, 147 So. 482, 483; Busby v. State, supra.
The verdict of the jury was contrary to the overwhelming weight of the testimony.
Moore v. State (Miss.), 20 So.2d 96.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
The circuit court committed no error in overruling the motion for continuance. The motion for continuance appears and alleges the absence of two witnesses, Will Evans, Jr., and Marie Ross. The witness Will Evans, Jr., was present and testified in behalf of the appellant on the merits. The witness Marie Ross did not appear; however, a reading of the motion shows that the two witnesses would have testified to the same facts. Furthermore, practically all of the witnesses who testified in the cause testified that the deceased had two bricks in his hands at the time, or near the time, of the fatal difficulty. Furthermore, there was no showing of diligence, as these witnesses had not been summoned by the defendant.
See Hinton v. State, 175 Miss. 308, 166 So. 762.
A denial of continuance shall not be ground for reversal unless the Supreme Court shall be satisfied that injustice resulted therefrom.
Sistrunk v. State, 200 Miss. 437, 27 So.2d 606.
The court granted appellant several instructions on the law and the facts in detail, none of them inconsistent, but all of them in harmony with the instruction of which complaint is here made, and setting up the plea of necessary self-defense. We think that the court gave appellant's contentions, taking all the instructions together, a full and clear presentation to the jury, and that the evidence amply sustains the verdict.
MeGehee et al. v. State, 138 Miss. 822, 104 So. 150; Holmes v. State, 199 Miss. 137, 24 So.2d 90; Williams v. State, (Miss.), 14 So.2d 216; Gregory v. State, 152 Miss. 133, 118 So. 906; Winston v. State, 127 Miss. 477, 90 So. 177; Dye v. State, 127 Miss. 492, 90 So. 180; Wiggins v. State, 199 Miss. 114, 23 So.2d 691.
An assignment that the verdict is against the weight of evidence cannot be entertained by the Supreme Court in the absence of a motion for a new trial in the trial court.
Justice et al. v. State, 170 Miss. 96, 154 So. 265.
Looking to the completed record we are of the opinion that there was no reversible error in the refusal of the court to continue the case on account of the absence of the witness Ross. All that this witness knew was that the deceased armed himself with brick bats and followed appellant, — in short that deceased was the aggressor; but this was proved by other witnesses, including some of those for the State. And evidently the jury believed this to be a fact, else the verdict would in all probability have been of murder instead of manslaughter.
And when all the instructions granted at the request of the defendant are read together with those granted for the State, we think there was no reasonable possibility that the jury could have been misled to the prejudice of appellant, considering the further fact that the verdict was of manslaughter and not of murder.
Appellant insists that the verdict is contrary to the great weight of the evidence, but the State makes the point that there was no motion for a new trial and relies on Justice v. State, 170 Miss. 96, 154 So. 265, which has been followed by a long line of cases to the same effect, to wit, that an assignment that the verdict was against the weight of the evidence will not be entertained on appeal in the absence of a motion for a new trial.
Appellant replies that the Court has not always followed the rule laid down in the Justice case and cites the recent case of Moore v. State (Miss.), 20 So.2d 96, wherein there was no motion for a new trial and yet the verdict was reversed because against the great weight of the evidence. In that case the State did not raise the point, but joined in the argument. This has happened also in two or three other cases. We have considered that it is within the province of the Attorney General to waive the point and when he has done so we have not deemed it obligatory on us to raise it ourselves.
Affirmed.