Summary
In Smith the instruction directed the jury to find the defendant guilty of murder if Smith willfully and deliberately killed the deceased without authority of law.
Summary of this case from Tran v. StateOpinion
February 14, 1949.
1. Criminal law — homicide — shooting in a crowded room, killing by-stander.
Where the defendant fired his pistol in a room crowded with people, killing an inoffensive bystander, and the only defense was the disproved excuse by defendant that he shot to forestall an expected attack by a stranger in the crowd, a conviction of murder will be sustained under Sec. 2215, Code 1942, without regard to whether clause (a) or clause (b) of the section is to be applied.
2. Criminal procedure — malice in murder implied as an element from deliberate use of deadly weapon.
Malice is an essential element of murder and as an element is implied as a matter of law from the deliberate use of a deadly weapon; and while it is true that when all the facts are in evidence, an instruction to the jury that malice will be implied from the deliberate use of a deadly weapon will not be given, the court is entitled, nevertheless, to consider the law on that question in determining whether or not the issue of murder should be submitted to the jury at all.
3. Trial — instructions not requested.
It is not the duty of the court to give any instructions not requested, and this is true even in a trial for murder.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Humphreys County; ARTHUR JORDAN, Special J.
James T. Bridges, for appellant.
An instruction in a criminal case based upon facts not in evidence is erroneous. Oliver v. State, 39 Miss. 362; Cothran v. State, 39 Miss. 541. An instruction not supported by any evidence was improperly given on behalf of the State. Smith v. State, 161 Miss. 430, 137 So. 96.
Instruction number one for the State in the present case reads as follows: "The court instructs the jury for the State that the unlawful killing of a human being, without the authority of law and not in necessary self defense, is murder, when done with the deliberate design to effect the death of the person killed, or of any human being." While this instruction is in the words of the statute defining murder, and is perfectly correct as an abstract principle of law, it was error for the court to grant this instruction under the evidence in the present case. There was no evidence introduced by the State that the shooting of the deceased was anything but an accident. There is no evidence in the whole of the testimony on which the State may base the claim that the shooting was done with deliberate design to affect the death of any person. From the record in this case it is clear that the State did not attempt to prove that the killing was done with any deliberate design to affect the death of any person. Nor did the State attempt to prove that the shooting was done intentionally. The testimony of the appellant was that it was accidental; that he was showing the weapon in self defense in order to get out of the negro "joint" where he had been attacked when the weapon went off. Inasmuch as the State did not attempt to prove that the shooting was done with a deliberate design to affect the death of the person killed, or of any human being, it was prejudicial to the appellant for the trial court to grant the State the instruction that it was murder if the shooting was done with deliberate design. Instructions which are not supported by some evidence on which the jury may base its decision are highly misleading to the jury.
Since no attempt was made by the State to introduce evidence of deliberate design, intent, premeditation or malice, it was error for the trial court to grant any instruction to the State to the effect that the appellant was guilty of murder. Malice is an essential element of murder, and must be proved the same as any other essential element of the crime. Malice, or its legal equivalent, is the very core of the crime of murder. When no malice, deliberate design, intent, or premeditation is attempted to be proved by the State, the trial court is not justified in granting any instruction on murder since the appellant cannot be guilty of murder unless the very essential element, malice, is proved. The State bears the burden of proof as to each essential element of a crime, and unless it proves malice, premeditation, deliberate design or intent, or the legal equivalent of malice, the State has not made out its case of murder.
Where all the facts of a homicide are in evidence, malice cannot be presumed but must be proved by the evidence. Raines v. State (1902), 81 Miss. 489, 33 So. 19; Smith v. State (1931) 161 Miss. 430, 137 So. 96; Godwin v. State (1896) 73 Miss. 873, 19 So. 712; Hawthorne v. State (1881) 58 Miss. 778; Hansford v. State (1891) 11 So. 106 (not in State Reports); Batiste v. State (1933) 165 Miss. 161, 147 So. 318; Walker v. State (1927) 146 Miss. 510, 112 So. 673; Cumberland v. State (1916) 110 Miss. 521, 70 So. 695; Winchester v. State (1932) 163 Miss. 462, 142 So. 454; Carter v. State (1927) 147 Miss. 171, 113 So. 177; Holmes v. State (1928) 151 Miss. 702, 118 So. 431.
Malice is an essential element of the crime of murder. 40 C.J.S. 858. Manslaughter is distinguished from murder by the absence of malice. Malice may be inferred from the deliberate use of a deadly weapon. Carter v. State, supra. Where there are eyewitnesses to a homicide and such witnesses are called for the State or for the defense, the jury must base its conclusions upon the testimony of such witnesses and the other testimony in the case. In such a case malice must be proved by the State just as any other element of the crime. Where all the facts of a homicide were in evidence, presumption of malice arising from the use of a deadly weapon disappeared, and instruction relating to such presumption was improperly given. Smith v. State, supra. Where all the circumstances attending a shooting were fully shown by the testimony, an instruction that the "use of a deadly weapon is a presumption of malice" was not justified. Godwin v. State, supra; Hawthorne v. State, supra; Hansford v. State, supra. Where all the facts and circumstances surrounding a homicide, or an alleged assault and battery with intent to kill and murder, are fully disclosed by the evidence, it is error to instruct that the law presumes malice from the deliberate use of a deadly weapon. Batiste v. State, supra; Walker v. State, supra; Cumberland v. State, supra; Smith v. State, supra; Winchester v. State, supra. The appellant would respectfully show unto the court that in all the cases cited under this point the court uses the language that "the law presumes malice from the deliberate or intentional use of a deadly weapon". Appellant respectfully represents that if such deliberate or intentional use were shown, malice could be inferred from such proof. In the present case, however, no such proof was offered. The above cases hold that it is erroneous to instruct that the law presumes malice from intentional or deliberate use of a deadly weapon, but that instead, when all the facts are shown by eyewitnesses, malice must be shown by proof. Even more so should this court hold that just the fact that a firearm was used is not sufficient grounds to infer malice. Particularly when all the facts appear in evidence by the testimony of eyewitnesses. If this were held to be true, all the State would have to prove in order to convict of murder would be that a person died from a gunshot wound. While no instruction was given the jury on the question of malice in the present case, the jury would be justified in drawing the inference that they could find malice from the instructions given which ignored the question of malice. The State did not instruct the jury on the question of malice; nor could it do so until it had introduced some evidence tending to prove malice or its legal equivalent. From the language used by this court in the above cited cases, there must be sufficient evidence to support the verdict of the jury in those cases where there were eyewitnesses and there must be sufficient evidence to support the inference of malice before the jury can rightfully draw such an inference. In the present case there was absolutely no evidence of such malice, and the appellant respectfully represents that the State failed to bear the burden of the very essential element of malice in the present case.
Malice may be implied from the deliberate or intentional use of a deadly weapon, but to imply such malice the state must prove the intentional or deliberate use of such weapon. Carter v. State, 147 Miss. 171, 113 So. 177; Holmes v. State, 151 Miss. 702, 118 So. 431; Walker v. State, 146 Miss. 510, 112 So. 673. The defense being accidental homicide, the instruction that malice may be inferred from the use of a deadly weapon was erroneous as it is only the deliberate killing by the use of a deadly weapon which imports malice. Raines v. State, 81 Miss. 489, 33 So. 19. Malice is implied from any intentional killing which the law does not make justifiable or excusable. Carter v. State, supra. Malice may be inferred from the deliberate use of a deadly weapon. Holmes v. State, supra. Instruction, in prosecution for assault and battery with intent to kill and murder, to the effect that malice may be inferred by use of deadly weapon held erroneous, since in order for use of deadly weapon to carry with it inference of malice, its use must be deliberate. Walker v. State, supra. In order that an implication of malice may arise from the use of a deadly weapon, it must appear that its use was wilful or intentional, deliberate or wanton. 40 C.J.S., pages 876, 878.
In all of the above cited cases the court speaks of the deliberate or intentional use of a deadly weapon. It is not the use of the deadly weapon itself that infers malice, it is the deliberateness or intentional use thereof. Since this court has so often declared the law on this point and used the words deliberate and intentional in speaking of the inference of malice from the use of a deadly weapon, it is only natural to infer that the unintentional or accidental use of a deadly weapon does not infer malice. To allow the jury to draw the inference of malice from the use of the deadly weapon, the State must prove the deliberate use of such weapon, the intent, or wilfulness of such use. In the present case there was no testimony introduced from which such inference could be drawn.
The appellant respectfully represents that the granting of the instructions complained of in points one and two are not sided by any presumption of malice from the use of a deadly weapon because the State did not show the deliberateness or intent or wilfulness of such use. The testimony of the appellant that the gun went off accidentally was not refuted by any testimony. The fact that it was intentional was not shown by any testimony by the State. No motive or intent was shown. Under the law as so often pronounced by this court, no malice could be presumed from the use of the pistol under the testimony given in this case.
The trial court erred in not setting aside the verdict and granting a new trial to the defendant. 29 C.J. 1098, 1099; Godwin v. State, supra; Ross v. State, 158 Miss. 827, 131 So. 367; Justice v. State, 170 Miss. 96, 154 So. 265. The verdict of the jury was against the great weight of the evidence. There was no evidence whatever from which the jury might have reached the conclusion that the killing was done with malice or deliberate design to effect the death of some human being. Where all the circumstances of the transaction are shown on the trial the existence or non existence of malice aforethought is to be determined from those circumstances, and there is no room for inferences and implications from the use of a deadly weapon or from the commission of the act itself. 29 C.J. 1098, 1099, Godwin v. State, supra, and other cases cited, supra. Since the State did not attempt to prove deliberate design, intent, malice aforethought, or premeditation, and did not introduce any evidence from which the jury could come to the conclusion that there was malice or its legal equivalent, it is clearly evident that the verdict of the jury is not based upon facts in evidence and is not supported by the evidence, and should have been set aside and a new trial granted to the appellant. On a motion for a new trial on the ground verdict is contrary to the evidence, the trial court should look over entire testimony and if the verdict is against the overwhelming weight of the evidence or clearly against the preponderance of evidence, the trial court should grant a new trial. Justice v. State, supra.
Geo. H. Ethridge, Assistant Attorney General, for appellee.
Section 2215, Code of 1942, provides, in defining murder: "The killing of a human being, without the authority of law, by any means or in any manner, shall be murder in the following cases: (a) When done with deliberate design to effect the death of the person killed, or of any human being; (b) When done in the commission of an act eminently dangerous to others, and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual. . . . . . . ."
It appears to me that the evidence clearly indicated that clause (b) was brought into play in the trial of the case and it is not necessary to allege specifically under which clause of Section 2215 the killing occurred and proof could be introduced and a conviction had on any set of facts that might be set out in case of murder under the statute. If it was related to clause (a) a person using a deadly weapon and firing in the crowd and hitting a particular person in that crowd could be convicted of the deliberate design to effect the death of the person killed or of some other human being. A person is presumed in law to intend the circumstances which follow from the use of a deadly weapon where he is not acting in defense of himself or of some other person or is resisting a felony on himself or some other person. There is a great deal of argument in appellant's brief ignoring clause (b) of the above statute and making rather fantastic arguments and presumptions that the burden was on the State to show intentional killing and specific malice or ill will on the part of the person who did the killing. It does not matter what the secret mental intention may be. The intent is judged from the act and the circumstances surrounding the act and unless the facts negative the intention to kill or justify the act, the law will attribute to the person doing the killing the intention to bring about the consequences which follow from such dangerous act.
Point 1 mentioned in the brief for appellant that an instruction in a criminal case based upon facts not in evidence is erroneous, is not supported by any evidence, and was improperly given on behalf of the State, is, I submit, not correct. It is true that instructions must be based on the facts in evidence but the jury may draw reasonable deductions on the facts and proof and do not specifically have to prove directly an intention which may exist in the mind of the defendant. If a person does an act deliberately and uses a deadly weapon in carrying the act into effect, his intention may be deduced from the using of the weapon in the circumstances disclosed if the facts are such as would lead naturally to proving an unlawful intent. Hatred and ill will do not have to exist to constitute malice. The facts and circumstances in this case show beyond reasonable doubt that the appellant recklessly and deliberately drew his pistol and shot the deceased. Whether he intended to shoot Pete or some other person is not material for it was unknown and is immaterial so far as malice as defined by law exists in the case. I do not deem it necessary to comment at large upon the many cases which are cited in appellant's brief for none of them are pertinent to the facts here although they were pertinent to the cases in which the opinions were rendered. It has been said that facts make the lawsuit and the announcement of the law in a case by the Supreme Court of the state shows that the facts justified the invoking of the principles announced in those particular cases. They are not necessarily the law as applied to a different set of facts. It seems to me that any person reading the testimony in the present case would be driven to the conclusion that the jury reached the right conclusion in applying the facts and the law.
The second point in the brief of appellant is that where all the facts of a homicide are in evidence malice cannot be presumed but must be proven by the evidence. The evidence in this case proves malice and malice is supplied when a deliberate and wilful act that is inherently dangerous to others evidencing a disregard for human life and social duty and fatally bent on mischief.
The third point made by appellant is that malice may be applied for the deliberate use or intentional use of a deadly weapon but to apply such malice the State must prove the intentional or deliberate use of such weapon. If the proof shows an intentional use of a deadly weapon and death results and no other facts are proven, then the law presumes malice from the use of a deadly weapon. If all the facts appear in evidence it then devolves upon the jury to determine the facts and the intent constituting a crime from the evidence. This is the jury's function alone, and the evidence in this case authorized the jury to do what it did and to draw the inference of malice from the acts as shown in the testimony.
Point four of the appellant's brief is that the court erred in not setting aside the verdict and granting a new trial to the defendant. It is only necessary for the court to read the evidence and recognize the jury as the instrumentality of deciding facts when in conflict and in drawing conclusions from the facts where more than one reasonable theory can be drawn from the facts and this has been the law throughout the life of the State of Mississippi. When the evidence is read and studied the court will be convinced that where there was no justification for the shooting and that it did not fall within the classes of justifiable or excusable homicide mentioned in the statutes.
The defendant was convicted under an indictment charging him with the murder of one Wardine Pope, a fifteen year old girl, who received a bullet wound as an innocent bystander when the defendant fired his pistol. The proof on behalf of the State disclosed that the shooting occurred late at night in a room or cafe when more than twenty persons were present; that there had been no quarrel or controversy so far as any of the witnesses knew between the defendant and the deceased, or between the defendant and a stranger known as Pete who jumped out of the way and got behind another person when the defendant drew his pistol from his pocket and fired toward the stranger.
The uncorroborated testimony of the defendant was to the effect that he had started toward the kitchen to get a sandwich when someone threw a bottle and struck him on the back of his leg; that he inquired as to who had thrown the bottle and received no response; that thereupon he heard someone exclaim "Don't do that Pete" and that he looked and saw Pete with something in his hand, which was down by his side, and that the latter was advancing toward him; that he then drew his pistol so as to show it to Pete but that in his excitement he accidentally pulled the trigger of the pistol and it fired. In other words, the defense is that in drawing and presenting his pistol the defendant was acting in self-defense but that he accidentally fired it without intending to shoot anyone.
However, the several witnesses on behalf of the State testified that Pete did not have a bottle or anything else in his hand but was talking and laughing until the shot was fired; that there had been no quarrel or words spoken between the defendant and Pete, and the witnesses had not heard anyone say "Don't do that Pete" before or at the time the shot was fired.
No one knew the surname of the witness Pete or what became of him, except that he left the scene of the shooting and has not been seen or heard of since that time.
Section 2215, Code of 1942, defines the crime of murder as being: "The killing of a human being, without the authority of law, by any means or in any manner . . . (a) When done with deliberate design to effect the death of the person killed, or of any human being; (b) When done in the commission of an act eminently dangerous to others, and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual; . . ."
(Hn 1) We are of the opinion that under the usual and customary indictment, such as the one here involved, wherein the crime of murder is charged, there is sufficient evidence in this record to warrant the jury in convicting the defendant of murder without regard to whether clause (a) or clause (b) of the statute hereinabove quoted is the applicable one.
(Hn 2) It is true that malice is an essential element of murder, but it was held in the case of Criss v. State, Miss., 30 So.2d 613, that actual malice is not a necessary ingredient of murder. As a matter of law the element of malice is implied from the deliberate use of a deadly weapon. Cases are cited by appellant to the effect that where all of the facts are in evidence an instruction for the State that malice will be implied from the deliberate use of a deadly weapon is not proper. However, the State did not obtain such an instruction in the instant case. The Court, however, was entitled to consider the law on the question in determining whether or not the issue of murder should be submitted to the jury at all.
Moreover, in the instant case the defendant did not ask for an instruction submitting the issue to the jury as to whether or not the killing was accidental, but, on the contrary, the instructions for the defendant presented for the consideration of the jury only the issue of whether or not the killing was done in necessary self-defense. Neither did the defendant request an instruction which would have submitted to the jury the issue of whether or not the killing was done as a result of culpable negligence on the part of the accused, and which issue may have entitled the jury to convict the defendant of only the crime of manslaughter if the jury had found that the killing was done merely through culpable negligence.
The State obtained an instruction which afforded the jury the opportunity of convicting the defendant of the crime of manslaughter in the event the jury should have believed beyond a reasonable doubt that the killing was done "by the use of a deadly weapon, without malice, in the heat of passion, without authority of law, and not in necessary self defense," but there was no proof that the shot was fired in the heat of passion; or at least the jury did not so find from all the facts and circumstances. Nor do we think that the verdict is so contrary to the weight of the evidence as to warrant the granting of a new trial.
We are of the opinion that no error was committed by the trial court against the defendant by the granting or refusal of any of the instructions, and that since (Hn 3) it was not the duty of the court to grant any instructions not requested in the case there was no reversible error committed on the trial, and the judgment of the trial court in sentencing the defendant to life imprisonment under the verdict of the jury must be affirmed.
Affirmed.