Opinion
No. 27117.
June 11, 1928.
CRIMINAL LAW. Instruction authorizing conviction for "manslaughter," if the jury believed the evidence, held not to take from jury right to determine whether deadly weapon was used.
Instruction in prosecution for murder, defining manslaughter as killing without authority of law by use of deadly weapon without malice aforethought with a deadly weapon, and authorizing conviction "if the jury believe from the evidence beyond a reasonable doubt," etc., held not erroneous as taking away from jury the right to determine from the evidence if jack handle used in killing was a deadly weapon; the remainder of instruction requiring proof beyond reasonable doubt that defendant so killed deceased.
APPEAL from circuit court of Lafayette county; HON.C.P. LONG, Judge.
J.W.T. Falkner and Creekmore Creekmore, for appellant.
The instrument with which the deceased was struck is not per se a deadly weapon. A weapon capable of producing death is not necessarily deadly, but the manner of its use will determine whether it is. 5 C.J. 737. The means and force employed must be such as are calculated to and likely to cause death before the weapon can be found by the jury to be deadly, and the jury must always be permitted to determine for itself whether the instrument used is a deadly weapon. The court did not submit to the jury the question of whether the jack handle was a deadly weapon, but instructed the jury on manslaughter and defined manslaughter as the killing of the human being without authority of law, not in necessary self-defense, by the use of a deadly weapon, without malice aforethought and in the heat of sudden passion, and further instructed the jury that if they believed the defendant so killed the deceased, they should find him guilty of manslaughter. The vice in this instruction is that it assumes the use of a deadly weapon when it should have defined deadly weapons for the jury and left them to decide whether the jack handle was a deadly weapon. Unless the instrument is described by law as a deadly weapon, it should appear to the jury from the proof to be one; and whether it be one or not must be determined by the proof of which the jury are the judges. State v. Sims, 80 Miss. 386; Porter v. State, 57 Miss. 300.
James W. Cassedy, Jr., Assistant Attorney-General, for the state.
It is well settled in this state that the appellant cannot complain of the failure of the court to instruct the jury where neither the state nor the appellant made a request for such an instruction. In Dalton v. State, 141 Miss. 841, 105 So. 784, it was held that a defendant tried for murder and convicted of manslaughter cannot complain of the failure of the court to define manslaughter, if he did not ask for such an instruction. 30 C.J. 352, sec. 605C. In accordance with the general rule taken from Corpus Juris and in accordance with the decisions of our court it is certainly no error that the court failed to instruct the jury as to what constitutes a deadly or dangerous weapon, and even though the general rule announced in Corpus Juris were followed in this state, I submit that it was not material in this case for the jury to be instructed as to what constituted a deadly or dangerous weapon.
Counsel for the appellant set forth in their brief that the vice in this instruction given for the state is that it assumes the use of a deadly weapon. I can see no merit to this contention. Sec. 1017 of Hemingway's 1927 Code (sec. 968, Hemingway's 1917 Code).
In Golding v. State, 144 Miss. 298, 109 So. 731, the court held that the phrase, "if you believe from the evidence beyond a reasonable doubt," modified all following phrases in the instruction so that it did not assume facts. In the instruction in the case at bar the jury are told that if they believe from the evidence beyond a reasonable doubt that the defendant killed the deceased by the use of a deadly weapon (other elements of manslaughter stated) that they should find the defendant guilty of manslaughter. It is apparent, therefore, that this instruction does not assume the use of a deadly weapon, but, on the other hand, requires the jury to believe beyond a reasonable doubt from the evidence that a deadly weapon was used. In answer to the authorities cited by counsel for the appellant, I respectfully submit that they have no application to the question here involved.
The appellant was tried upon a charge of murder, resulting in a conviction of manslaughter, and sentenced to serve a term of ten years in the state penitentiary. From this conviction and sentence, he prosecutes this appeal.
The deceased, Elton Stewart, and appellant were both young white boys about fifteen years of ago. They were attending a night service of a revival meeting at a neighborhood church. The congregation was assembled in the church, but these two boys, the deceased and the appellant, remained on the outside with a number of other boys. While there, an altercation arose between them, in which appellant threatened to cut Stewart's head off with a razor. A friendly bystander took the razor away from appellant, who then went to an automobile, and procured therefrom a "jack handle," and placed the same under his belt. This jack handle was from fifteen to eighteen inches long, with a bend or crook at one end, and about an inch wide and one-fourth of an inch in thickness. It was a handle in ordinary use for automobile jacks. A crowd of young men, including the participants in this unfortunate tragedy, went to a farmhouse some three hundred yards from the church to get water. The altercation was there renewed, and, according to the state's proof, deceased asked appellant if he (appellant) had called him a "s____ of ____ a b____," and appellant replied, "I damn sure did." Deceased then said that appellant would have him to whip. Whereupon appellant, who at that moment was standing on the porch, and the deceased on the ground, pulled out the iron jack handle, and threw it at deceased with such force that the end thereof penetrated into his skull five inches, requiring the efforts of two men to pull it out. Deceased fell mortally wounded, from which wound he died shortly thereafter without regaining consciousness.
A number of witnesses for the state testified that deceased had no weapon of any kind at the time of the fatal blow. The testimony for the defense tended to show that deceased struck appellant with a stick resembling a hoe handle, breaking the stick as he struck, and that appellant threw the jack handle as the deceased was about to strike the second blow.
The only assignment of error goes to the instruction given the State in these words:
"The court charges the jury for the state that manslaughter is the killing of a human being without authority of law, not in necessary self defense, by the use of a deadly weapon, without malice aforethought, and in the heat of sudden passion, and, if the jury believe from the evidence in this case beyond a reasonable doubt that the defendant, H.C. Starnes, so killed the deceased, Elton Stewart, it is the sworn duty of the jury to find the defendant guilty of manslaughter, and the form of your verdict will be: We, the jury, find the defendant guilty of manslaughter."
Contention is made that the jack handle is per se a deadly weapon, and that the effect of this instruction was to take away from the jury the right to determine from the evidence if it was a deadly weapon. In other words, the instruction, as contended by appellant, assumes the use of a deadly weapon when it should have merely defined deadly weapons, leaving it for the jury to decide whether the handle used was a deadly weapon. We do not think the instruction subject to the criticism made by appellant. The first part of the instruction follows the statutory definition of manslaughter. Then follows: ". . . If the jury believe from the evidence beyond reasonable doubt . . . that defendant . . . so killed the deceased . . .," etc. The phrases "from the evidence" and "so killed" modify the preceding part of the instruction. Adopting the language employed by this court in Golding v. State, 144 Miss. 298, 109 So. 731, "we think that the instruction, construed, according to the rules of grammar, as well as according to common understanding, means that the jury could not convict, unless the evidence showed, beyond reasonable doubt, each of the necessary elements of the crime."
The court committed no error in granting this instruction; consequently the judgment and sentence of the court below must be affirmed.
Affirmed.