Opinion
No. 40007.
April 2, 1956.
1. Homicide — murder conviction sustained.
Murder conviction was sustained by the evidence as against defendant's plea of self-defense.
2. Evidence — irrelevant — entirely separate circumstance.
In murder prosecution, it was not error to exclude testimony that decedent had cursed witness about thirty minutes before killing and that he must have been drunk, judging from words he directed at witness, who was a white man, where witness could not testify of his own knowledge that deceased was drunk.
3. Courts — extending term of court — discretion of trial judge — review.
Extension vel non of term of court is within discretion of judge, and Supreme Court will not inquire into whether or not that discretion was abused. Sec. 1647, Code 1942.
4. Criminal law — verdict — sentence — where record fails to show presence of defendant in court — no reversal where question not raised by special exception.
Failure of record to affirmatively show that defendant had been in court at time when jury's verdict was returned or when judgment and sentence was pronounced against him would not entitle defendant to reversal, where record failed to disclose that question had been raised in court below by special exception as required by applicable statute. Sec. 1987, Code 1942.
Headnotes as approved by Ethridge, J.
APPEAL from the Circuit Court of Jasper County; HOMER CURRIE, Judge.
J. Larry Thompson, Bay Springs, for appellant.
I. It is mandatory and imperative in this jurisdiction that upon a trial for murder it must be committed with "malice aforethought." It must be "willful"; it must be committed with "deliberate design" — "premeditation", without which, when done, the homicide is never murder. If it may be said that malice aforethought could be presumed from the use of a deadly weapon, then of course this presumption is met and confronted with the presumption of innocence of accused throughout the trial and eliminates the proof of malice aforethought beyond a reasonable doubt; then, in such case, where is the existence of the reasonable doubt? Where there is reasonable doubt of the existence of malice aforethought in murder charge, then there is no murder, and accused is entitled to the benefit of the doubt. Burnett v. State, 92 Miss. 826, 46 So. 248.
II. That presumption of malice from use of deadly weapon will not support a conviction of murder, as against evidence of justification. Patty v. State, 126 Miss. 94, 88 So. 498; Hawthorn v. State, 58 Miss. 778.
III. Evidence that accused killed deceased in heat of passion or self-defense is not sufficient to sustain murder conviction. Right v. State, 107 Miss. 552, 65 So. 583.
IV. That one on trial for murder is presumed to be innocent until the contrary is made to appear. But if it be shown that he killed deceased with a deadly weapon, the general presumption yields to the specific proof, and the law infers that the killing, if unexplained, is malicious, and therefore murder; but if the attendant circumstances and facts be shown in evidence, the character of the killing is determined by considering them. The lawfulness or unlawfulness of the killing are to be judged from the facts; and the presumption of malice from the use of a deadly weapon yields to the evidence and will not support a conviction of murder against the facts showing justification. Hawthorn v. State, supra; Patty v. State, supra.
V. From the testimony and evidence in the case at bar, there could not be sufficient evidence generated from the testimony in the case or accumulated therefrom to be believed beyond a reasonable doubt to convict appellant of murder. May we be permitted to submit a table of cases on this point? Knight v. State, 74 Miss. 140, 20 So. 860; Hammond v. State, 74 Miss. 214, 21 So. 149; Strother v. State, 74 Miss. 447, 21 So. 147; Hunter v. State, 74 Miss. 515, 21 So. 305; King v. State, 74 Miss. 576, 21 So. 235; Jeffries v. State, 74 Miss. 675, 21 So. 526, and 77 Miss. 757, 28 So. 948; Powers v. State, 74 Miss. 777, 21 So. 657; Herman v. State, 75 Miss. 340, 22 So. 873; Lipscomb v. State, 75 Miss. 559, 23 So. 210; Gibson v. State, 76 Miss. 136, 23 So. 582; Klyce v. State, 78 Miss. 493, 28 So. 827; Francis v. State, 87 Miss. 493, 39 So. 897; Ellerbe v. State, 79 Miss. 10, 30 So. 57; Shaw v. State, 79 Miss. 21, 30 So. 42; Matthis v. State, 80 Miss. 491, 32 So. 6; Gamblin v. State, 82 Miss. 73, 33 So. 724; Thompson v. State, 83 Miss. 287, 35 So. 689; Butler v. State, 83 Miss. 437, 35 So. 569; Jones v. State, 84 Miss. 194, 36 So. 243; Fugate v. State, 85 Miss. 86, 37 So. 557; Moore v. State, 86 Miss. 160, 38 So. 504; Ammons v. State, 89 Miss. 369, 42 So. 165; Regan v. State, 81 Miss. 422, 39 So. 1002; Taylor v. State, 89 Miss. 671, 42 So. 608; Bell v. State, 89 Miss. 810, 42 So. 542; Windham v. State, 91 Miss. 845, 45 So. 861.
VI. Malice must be proved beyond a reasonable doubt. Glass v. State, 201 Ala. 441, 78 So. 819; State v. Adams, 6 Penn. (Del.) 178, 65 A. 510; State v. McKay, 150 N.C. 813, 63 S.E. 1059.
VII. Under our statute, the difference between murder and manslaughter is clearly and precisely set forth and may be distinguished by the presence of intent, malice, premeditation, design and deliberation as elements, essentials and component parts and requisites in a homicide case. In a case of murder, these necessary elements must prevail without fail; on the contrary, as a general rule, where the homicide appears to have been committed in the heat of blood or passion in the absence of the elements and essentials necessary to constitute murder as above set out, the homicide is reduced to manslaughter only.
VIII. To constitute murder, there must be not only a killing, but it must be done with malice. McDaniel v. State, 16 Miss. 401, 8 Sm. M. 401, 1 Mor. St. Cas. 336, 47 Am. Dec. 93.
IX. While one may intentionally kill another in a struggle in the heat of passion, and the killing be unlawful, and may yet be only manslaughter. Jackson v. State, 79 Miss. 42, 30 So. 39.
X. Without deliberation, at the very time of the killing, malice cannot exist. Walker v. State, 146 Miss. 510, 112 So. 673.
XI. In the absence of some proof of intent, malice, deliberation or premeditation fully shown by the testimony in a homicide case, beyond a reasonable doubt, there can be no murder finding; and this seems to be generally a universal holding and rule at home and abroad.
XII. If one has felonious design to kill and kill in the heat of passion, the killing is manslaughter and not murder. Dye v. State, 127 Miss. 492, 90 So. 180; Smith v. State (Ala.), 6 So. 551; State v. Hocket, 73 Iowa 442; 9 Criminal Law Magazine, p. 208.
XIII. To constitute voluntary manslaughter, the killing must be done when the reason is disturbed or obscured by passion to such an extent which might render ordinary persons liable to act rashly without reflection and from passion rather than judgment; there must be an adequate provocation for the passion, and the killing must be without previous malice. Long v. State, 52 Miss. 23; Green v. State, 28 Miss. 687.
XIV. Where an instruction undertakes to make a concrete application of the law to the facts of the case, directing a designated verdict if the jury believe the facts to be as stated in the instruction, and the facts stated will not legally sustain the verdict directed, the error is a reversible one and cannot be cured by other instructions. Harper v. State, 83 Miss. 402, 35 So. 572.
XV. An instruction authorizing a conviction upon mere proof of killing in a murder case is erroneous, and verdict cannot stand. Hunter v. State, 74 Miss. 515, 21 So. 305; McDonald v. State, 78 Miss. 369, 29 So. 171; Kelly v. State, 68 Miss. 343, 8 So. 745; Douglas v. State, 2 Miss. Dec. 220; Cannon v. State, 57 Miss. 147; Head v. State, 44 Miss. 731, 2 Mor. St. Cas. 1700; Jefferson v. State, 52 Miss. 767; Aldrige v. State, 59 Miss. 250; Prine v. State, 73 Miss. 838, 19 So. 711; Williams v. State (Miss.), 98 So. 242; Bedwell v. State, 130 Miss. 427, 94 So. 220.
XVI. It is always competent in a murder trial to show the conduct and actions and general maneuvers and demeanor of not only the appellant, but also the deceased, characterizing the subsequent acts of the parties at the time of the killing immediately subsequently thereto; and if not too remote, this kind of testimony should always be admissible in a homicide case to show motive, feeling and conduct, which ordinarily might go to and form a part of the res gestea of the homicide.
XVII. A defendant pleading self-defense in a homicide case should certainly have the right upon his trial to show fully the conduct of deceased as to sobriety, temperament, profanity and his general condition that would give the jury some idea of his mood or manner just before the difficulty that resulted in his death. Certainly this should be an important factor in the trial and admissible, and for a Trial judge to refuse the admissibility of testimony of this character in a murder case would be nothing more than prejudicial and fatal error. Moseley v. State, 89 Miss. 802, 41 So. 384.
XVIII. But where the calling of a special term or an extended term would react and rebound to the injury and damage and work a hardship or evil upon one charged with a capital case or an injustice upon him in any way, then such a law and rule should be guarded with care and caution and prevented if possible. Perry v. State, 154 Miss. 459, 122 So. 744; Beard v. McLain, 117 Miss. 316, 78 So. 184; Magness v. State, 103 Miss. 30, 60 So. 8; Johnson v. State, 223 Miss. 167, 77 So.2d 824; Sec. 1647, Code 1942.
XIX. The motion for a continuance should have been granted, and the Trial Court abused its discretion in not so doing, and appellant's right to prepare for his defense was hampered and annihilated.
XX. The accused is not shown to have been in the presence of the Court when the verdict of the jury was returned; neither when the judgment and sentence were pronounced against him in open Court. Shapoonmash v. United States, 1 Wn. Tr. 219; Kelly v. State, 11 Miss. 518, 3 Sm. M. 518, 1 Mor. St. Cas. 235; Dyson v. State, 26 Miss. 362, 1 Mor. St. Cas. 710; Stubbs v. State, 49 Miss. 716; Scaggs v. State, 16 Miss. 722, 8 Sm. M. 722, 1 Mor. St. Cas. 384.
XXI. Statements of a witness had and procured in the absence of the accused, purporting to be the facts for State in the case and upon which the State relied, could not be introduced in evidence against the accused. Art. VI, U.S. Constitution; Sec. 26, Constitution 1890.
J.R. Griffin, Asst. Atty. Gen., Jackson, for appellee.
I. There was no error in the State's instructions. Alexander's Miss. Jury Instructions, Secs. 2461, 2517 p. 589.
II. The appellant in the trial of the case did not rely upon a possible verdict of manslaughter, but his sole defense is under Section 2218(f), Code of 1942, which provides that: "The killing of a human being . . ., shall be justifiable. . . . when committed in the lawful defense of one's own person . . ., where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished."
III. The State's evidence, which the jury had a right to believe, presents a case of a deliberate killing of the deceased by the appellant, with no provocation or justification whatever for so doing.
IV. The evidence presented a clear-cut issue of fact that was properly submitted to the jury for its determination of the guilt or innocence of the appellant. Robinson v. State (Miss.), 49 So.2d 413.
V. Exclusion of testimony concerning previous conduct of deceased. Self v. State, 178 Miss. 560, 174 So. 44.
VI. The extension vel non of a court term is within the discretion of the Trial Judge, and the Supreme Court will not inquire into whether that discretion was abused. Hughes v. State, 188 Miss. 554, 195 So. 311; Sec. 1647, Code 1942.
VII. The Court committed no error in overruling appellant's motion for a continuance. Sec. 1520, Code 1942.
VIII. Section 1987, Code of 1942, declares that a judgment shall not be reversed because the record does not show "that the prisoner was present in Court during the trial or any part of it, or that the Court asked him if he had anything to say why judgment should not be pronounced against him upon the verdict" unless the error complained of, if not jurisdictional, was made ground for special exception in the Lower Court. Buchanan v. State, 225 Miss. 399, 83 So.2d 627.
IX. In cross-examining the State's witness, "Kiss" Vaughn, the appellant attempted to bring out that the witness had made statements other than the one he had just made on direct examination by the State's attorney, and then on redirect examination the State's attorney asked the witness if he had not signed a statement on the day of the funeral of deceased, which statement was held by the prosecuting attorney, and the witness admitted that he did sign the statement. The statement contained the same matters that had been given by the witness on direct examination and on cross-examination, and was not any additional evidence other than that which the witness gave in open Court, subject to cross-examination. The appellant contends here that the admission of this evidence was error. In answer to his contention, we would first point out to the Court that no objection was made to the introduction of the evidence by the appellant in the Court below, and we do not believe this matter can be raised now because of the failure to object to its introduction at the proper time. Further, it is not shown that the statement was read to the jury or heard by them and, therefore, had no probative value in the jury's determination of the facts involved in the case. We might concede that should the statement contain evidence other than that given by the witness, and had there been a timely objection, that its introduction would be error, but under the facts in this case we cannot see how the introduction of the statement was error, and positively assert that to our notion there was no harm to the appellant's case.
Appellant, Arthur "Tampa" Jones, was convicted in the Circuit Court of the First Judicial District of Jasper County, of the murder of Willie T. Plummer, Jr., in March 1955. There is no merit in appellant's contentions that he was entitled to a peremptory instruction and the verdict is against the great weight of the evidence. On the contrary, his conviction is supported by the great weight of the evidence. The affray which resulted in Plummer's death occurred in a small negro cafe in the Town of Heidelberg. All of the persons in the cafe at the time of the killing, other than appellant and his wife, who was jointly indicted with him, testified that without any provocation appellant knocked Plummer against the wall, pulled out a knife and inflicted the fatal wound; that Plummer had no weapon in his possession, and that he had done nothing whatever to support appellant's claim that appellant acted in necessary self-defense. Jones did not testify, but his wife claimed that Plummer molested her, then hit appellant on the head and pulled out a knife, and that while appellant was defending himself he cut Plummer with his knife.
Willie B. Millsaps testified for defendant that late in the afternoon of the day the incident occurred, he and Plummer had drunk some intoxicating liquor, that he was drunk, but that he did not know whether Plummer was intoxicated. The seven witnesses who testified for the State all said that Plummer acted quietly prior to the incident. (Hn 1) The overwhelming testimony of the seven witnesses for the State, as contrasted with the appellant's defense evidenced only by his wife and Millsaps, certainly warranted the jury in finding appellant guilty of murder and in fixing the punishment at life imprisonment.
(Hn 2) The defendant offered as a witness B.L. White, a white man, who would testify that about thirty minutes before the killing he drove by Plummer, who was walking down the street, and that Plummer cursed him, claimed that White was going to run over him, and then ran into the cafe. White said that Plummer must have been drunk because of the words he directed toward him, but that he was not close to Plummer and could not say that he was intoxicated. The trial court held that White's offered testimony as to what Plummer said to him thirty minutes before the killing was incompetent and inadmissible. The court also sustained a similar objection to testimony offered by Millsaps, who was with Plummer thirty minutes before the killing when Plummer allegedly cursed White, as being irrelevant on the issue of self-defense, but permitted Millsaps to testify that he had drunk liquor with Plummer late that afternoon, although he did not know whether Plummer was intoxicated. There was no error in these actions of the trial court. White could not testify on his own knowledge that deceased was drunk, and the fact that he had allegedly cursed White thirty minutes before the killing was an entirely separate circumstance which was not relevant to defendant's plea of self-defense.
(Hn 3) The term of circuit court was for a period of one week. As authorized by Code of 1942, Sec. 1647, the circuit judge entered an order extending the term for an additional week. It was during this second week of the term that appellant was tried. He contends that the court improperly extended the term of court. But it is established that the extension vel non of a term is within the discretion of the judge, and this Court will not inquire into whether or not that discretion was abused. Hughes v. State, 188 Miss. 554, 195 So. 311 (1940).
(Hn 4) Appellant also complains that the record does not affirmatively show that he was in court at the time the jury's verdict was returned or when the judgment and sentence were pronounced against him. The record reflects that appellant personally entered a plea of not guilty. Nowhere in the record did appellant's counsel raise this question. Code Sec. 1987 provides that a judgment shall not be reversed on the ground that the transcript does not show that the prisoner was present in court during the trial or any part of it, "except where the errors or omissions are jurisdictional in their character, unless the record show that the errors complained of were made ground of special exception in that court." Appellant made no ground of special exception in the trial court in this respect, so under Section 1987 he is precluded from now raising this issue. Buchanan v. State, 83 So.2d 627, 631 (Miss. 1955).
We have considered and find no merit in the other assignments of error.
Affirmed.
Roberds, P.J., and Hall, Lee, and Holmes, JJ., concur.