Opinion
No. 32257.
October 12, 1936.
1. CRIMINAL LAW.
Where conviction of manslaughter under indictment for murder is reversed on application of accused, cause stands for trial de novo on original indictment, and accused may again be tried for murder (Const. 1890, sec. 22).
2. HOMICIDE.
Where evidence made both issues of murder and manslaughter, court properly submitted both issues to jury.
3. HOMICIDE. Instruction setting out the evidence state relied on for conviction and telling jury that, if they believed it beyond a reasonable doubt, they should find defendant guilty of murder, held reversible error for omitting the phrase "malice aforethought" or its equivalent and for failure to inform jury that, if killing took place in heat of passion and without malice aforethought, verdict should be for manslaughter and not murder.
"Malice aforethought" is the distinguishing feature between murder and manslaughter. There can be no murder without malice aforethought, and a homicide without it and in the heat of passion is not "murder" but may be "manslaughter."
4. CRIMINAL LAW.
Error in instruction in murder prosecution which failed to require malice aforethought for conviction for murder held not cured by other instructions properly defining both murder and manslaughter, since erroneous instruction was in irreconcilable conflict with other instructions.
5. CRIMINAL LAW.
In murder prosecution, instruction that jury were sole judges of weight of evidence and credibility of witnesses, and that, if they believed any witness had intentionally and corruptly sworn falsely to material issue, they could disregard such witness' entire testimony, held erroneous for failure to inform jury that their belief had to be based upon the evidence.
6. CRIMINAL LAW.
In murder prosecution, instruction that jury were sole judges of weight of evidence and credibility of witnesses held not erroneous because of use of word "intentionally" instead of word "knowingly" in informing jury that they could disregard testimony of witnesses jury believed intentionally swore falsely.
7. HOMICIDE.
In murder prosecution, error, if any, in instructions which in defining the crime left out requirement that act was committed "without authority of law," held harmless, where no claim was made that homicide was committed by authority of law.
APPEAL from circuit court of Alcorn county. HON. THOS. H. JOHNSTON, Judge.
Orma R. Smith, of Corinth, for appellant.
Where a defendant is indicted for murder and on a trial thereof is found guilty of manslaughter, prosecutes an appeal to the Supreme Court and secures a new trial of said cause; on the second hearing thereof the prosecution must be limited to the crime of manslaughter, as the verdict of the jury in the first instance, in finding him guilty of manslaughter, was an acquittal of the crime of murder and the said verdict of the jury constitutes former jeopardy as to the crime of murder.
Morris v. State, 8 S. M. 762; Walker v. State, 123 Miss. 517, 86 So. 337; Hurt v. State, 25 Miss. 378; Rolls v. State, 52 Miss. 391; Powers v. State, 83 Miss. 691, 36 So. 6; 13 R.C.L. 886, secs. 189, 190; 8 R.C.L. 160; 16 C.J. 260, 261; Brantley v. State of Ga., 16 Am. Eng. Ann. Cas. 1206, 22 L.R.A. (N.S.) 959; Trono v. U.S., 4 Am. Eng. Ann. Cas. 778; State of S. Carolina v. Gillis, 5 L.R.A. (N.S.) 571; Jones v. State, 59 L.R.A. 1160; People v. Newman, 195 N.E. 645; People v. Liddell, 187 N.E. 174; State v. Lewis, 160 So. 485; State v. Harvell, 130 So. 348; State v. Elmore, 155 So. 896; Russell v. State, 165 So. 255; Presnal v. State, 129 So. 480; Culifer v. State, 79 So. 143; Roberson v. State, 62 So. 837; 7 So. Digest, page 185, cases under sec. 193 1/2, "Criminal Law."
The appellant, in urging this proposition upon this court, recognizes the fact that this court has ruled adversely to his contention in the case of Jones v. State, 59 A.L.R. 1146, 109 So. 265, 144 Miss. 52, 71 L.Ed. 817, which was decided by this court on June 21, 1926, and that this rule has been followed in Bell v. State, 115 So. 896, 149 Miss. 745.
However, the appellant is convinced that the decision in the Jones case as to this matter should be overruled. Since its earliest day until the ruling in the Jones case, supra, our Supreme Court has followed this proposition of law as stated by the appellant. The appellant contends that the Constitution of 1890, section 22, did not justify the overruling of this line of decision and the establishment of the rule of law as set forth in the Jones case. With all due respect to this court in the matter, the appellant respectfully submits that the ruling in the Jones case is not justified by the previous rulings of this court, and that the same should be overruled.
The appellant contends that the first, second, third, and fourth instructions granted the state are erroneous for the reason that they fail to inform the jury that a reasonable doubt can arise from the lack of evidence as well as from the evidence.
An instruction which fails to inform the jury that a reasonable doubt can arise out of the want or lack of evidence as well as from the evidence is erroneous.
Howell v. State, 53 So. 954, 96 Miss. 439; Hale v. State, 16 So. 389, 72 Miss. 140; Knight v. State, 20 So. 860, 14 Miss. 140; Kelley v. State, 72 So. 928, 112 Miss. 245.
The appellant also complains of the third instruction for the state for the reason that it does not require the jury to believe that the cutting and killing was done "without authority of law" before they can convict him of a crime of murder.
An instruction which instructs the jury that they can convict a defendant of murder without requiring them to first believe that the cutting and killing was done "without authority of law" is erroneous.
Motley v. State, 165 So. 296; Earl v. State, 151 So. 172; Rutherford v. State, 57 So. 225, 100 Miss. 832; Ivey v. State, 36 So. 265.
The appellant contends and avers that instruction No. 5 is erroneous in three particulars, to-wit: First, the last part of the instruction authorizes and instructs the jury to find the defendant guilty as charged, that is, guilty of the crime of murder, if the jury believes beyond a reasonable doubt that the appellant cut and killed the deceased, not necessarily in self-defense, and at a time when he was not in any danger of any great bodily harm, real or apparent, at the hands of the deceased, and omits, as a part of the crime, the necessary ingredient of malice aforethought; and second, the first part of the instruction cuts off the defendant's entire right of self-defense, and is too abstract; and third, it does not inform the jury that the killing must have been done without authority of law.
An instruction which authorizes the conviction of a defendant, in a case of a homicide, of the crime of murder without first requiring that the jury believe beyond a reasonable doubt that the defendant killed the deceased with malice aforethought is fatally erroneous.
McDonald v. State, 29 So. 171, 78 Miss. 369; Gamblin v. State, 29 So. 764; Brett v. State, 47 So. 781, 94 Miss. 669; Burnett v. State, 46 So. 248, 92 Miss. 826; Caffey v. State, 24 So. 315; Herring v. State, 99 So. 270, 134 Miss. 505; Kearney v. State, 68 Miss. 233, 8 So. 292; Hunter v. State, 21 So. 305, 74 Miss. 515; Beasley v. State, 8 So. 234, 64 Miss. 518; 13 R.C.L. 931, 932; Jeff v. State, 37 Miss. 321; Earl v. State, 151 So. 172, 168 Miss. 124; Lott v. State, 93 So. 481, 130 Miss. 119; Smith v. State, 91 So. 41.
That malice aforethought is one of the essential ingredients of the crime of murder, is not open to question.
The rule on conflicting instructions is: the instructions taken as a whole must be consistent and harmonious, and where instructions contain inconsistent propositions and are conflicting, the case should be reversed for the reason that the court is unable to tell which the jury follows and which they ignore. Where two instructions are given on the same point, and one requires one thing and another the other, before a conviction can be had, they are conflicting, irreconcilable, and misleading, and this error is not cured by other instructions correctly announcing the law.
Russell v. Williams, 168 Miss. 181, 150 Miss. 528; Lauderback v. Stien, 113 Miss. 475, 74 So. 327; Y. M.V.R.R. Co. v. Hawkins, 132 So. 742, 159 Miss. 775; Ellis v. Ellis, 134 So. 150, 160 Miss. 345; L. N.R.R. Co. v. Cuevas, 139 So. 397, 162 Miss. 521; Enghlin v. Pittsburgh County R.R. Co., 94 A.L.R. 1180; 14 R.C.L. 775, 776, 777, 813; 17 C.J. 343, 347; Marx v. Berry, 168 So. 61; Burke v. State, 72 Miss. 408, 16 So. 342; Pollard v. State, 53 Miss. 410; Southern Ry. Co. v. Kendrick, 40 Miss. 375; Kenton v. State, 31 Miss. 504; I.C.R.R. Co. v. Minor, 69 Miss. 710, 11 So. 101; Harper v. State, 35 So. 572, 83 Miss. 402; Murphy v. State, 42 So. 877, 89 Miss. 827; Hawthorne v. State, 58 Miss. 778; Josephine v. State, 39 Miss. 647.
The appellant complains of the sixth instruction given to the state, which instruction is as follows: "The court charges the jury for the state that they are the sole judges of the weight of the evidence and the credibility of the witnesses, and that if they believe any witness has intentionally and corruptly sworn falsely to any material fact in the case, then they may disregard the entire testimony of such witness."
The appellant contends that this instruction is erroneous for these reasons: First, that this instruction does not require the jury to believe that any witness has willingly, knowingly, and corruptly sworn falsely to any material facts in the case "from the evidence," before they have a right to disregard the testimony of such witnesses; second, the instruction does not require this belief to be beyond a reasonable doubt; and third, the instruction does not require the jury to believe that the witness has willingly, knowingly, and corruptly sworn falsely to a material fact.
The belief of the jury that any witness has wilfully, knowingly, and corruptly sworn falsely to a material fact in the case must arise from the evidence or from the lack of evidence. It cannot arise from just any source whatsoever, and an instruction that merely instructs the jury that if they believe this fact without stating that they must believe same from the evidence is erroneous.
Powers v. State, 151 So. 174; Butler v. State, 35 So. 569, 83 Miss. 437; Warren v. State, 146 So. 449, 166 Miss. 284.
An instruction as to the credibility of witnesses which does not tell the jury that they must believe from the evidence beyond a reasonable doubt that the witness has wilfully, knowingly, and corruptly sworn falsely to a material fact is erroneous.
W.T. Farley v. Smith, 130 So. 478, 158 Miss. 404: McClure v. State, 128 So. 764, 157 Miss. 800; Shelton v. State, 126 So. 390, 156 Miss. 612; Wood v. State, 165 So. 123.
An error committed in this type of instruction is highly prejudicial to the appellant, and this court has gone so far as to hold that an error in this type of instruction requires a reversal for this error alone.
Wood v. State, 165 So. 123; McClure v. State, 128 So. 764, 157 Miss. 800.
Webb M. Mize, Assistant Attorney-General, for the state.
After this case was reversed and remanded by this court the appellant filed a plea of autrefois acquit, or plead former jeopardy. He set up in this plea that on the first trial for murder he was convicted of manslaughter and that the conviction of manslaughter was an acquittal of the crime of murder and that he could be tried only under the indictment for manslaughter. To this plea a demurrer was filed, which was sustained by the court below. Appellant complains of the court's action in sustaining this demurrer in his first assignment of error as appellant was convicted of murder on the second trial.
The rule of law in this state for a long number of years was in accord with what appellant says here on this proposition, but for the last number of years the decisions of the Mississippi Supreme Court have held contrary to his contention and all the Mississippi cases which he cites supporting his views have either been expressly or impliedly overruled.
Jones v. State, 144 Miss. 52, 109 So. 265.
The Jones case held that, under the circumstances there, the case had to be tried de novo on the original indictment and that the accused could be convicted of murder.
Harris v. State, 158 Miss. 439, 130 So. 697; Smith v. State, 158 Miss. 355, 128 So. 891; Maxey v. State, 158 Miss. 444, 130 So. 692.
Appellant assigns as error the giving of all instructions for the State, being instructions 1 to 6. The bulk of the argument on the objections to the first four instructions is that they do not inform the jury that a reasonable doubt can arise from the lack of evidence as well as from the evidence. The guilt of the accused must be demonstrated from the evidence on the trial and not from a lack of evidence. It is true that a reasonable doubt may arise from the lack of evidence, but guilt must be ascertained from the evidence that is produced. The appellant cites a number of cases in support of his contention, but these cases are all earlier than the case of Carter v. State, 140 Miss. 265, 105 So. 514.
The same objection was made to the instruction in the Carter case as is made here and the court decided adversely to the appellant in the Carter case.
Appellant further objects to instruction No. 4 given for the State because that instruction tells the jury that they do not have to know that the defendant is guilty, but all that is necessary is that they should believe all the evidence in the case beyond a reasonable doubt. This instruction has been approved by the courts in a number of cases.
Hillman v. State, 164 Miss. 100, 144 So. 234.
The appellant also complains of the third instruction for the reason that it does not require the jury to believe that the cutting and killing was done without authority of law. This instruction, if standing alone, would be erroneous, because it left out the phrase "without authority of law," but the other instructions granted the State include this ingredient of murder and in a criminal case the instructions are not read separately, but are read together and if, when so read together, they correctly state the law, there is no error.
Callas v. State, 151 Miss. 617, 118 So. 479.
The appellant cites as error the action of the court in granting the State instruction No. 5. Appellant first objects to this instruction because it omits telling the jury that Clifford Butler must have acted of his malice aforethought. The first instruction for the State defines the crime of murder and correctly defines same. There is also an instruction on malice aforethought and this instruction, when read with the fifth instruction for the State, correctly charges the jury on the law. He objects to the instruction in the second place because he says that the first part of it cuts off the defendant's right of self-defense. There is no merit in this contention. The appellant also contends that this instruction does not inform the jury that the killing must have been done without authority of law. The other instructions for the State inform the jury in this regard. It is absolutely impossible to write in one instruction all of the law of the case. Therefore, it is necessary that there be more than one instruction so that the jury can be fully informed of the law and one instruction must be read in connection with the others.
Appellant has much to say, and says it over a good many pages, in regard to these instructions being irreconcilable. I do not care to go into a long discourse to show that they are not irreconcilable. I only ask that the court read these instructions and I am sure that it will be found that they fit, one into the other, without any conflict. If there are technical errors in these instructions, but if these errors are cured by the other instructions, there is no error, because all instructions in a criminal case are construed together.
Williams v. State, 160 Miss. 485, 135 So. 210; Callas v. State, 151 Miss. 617.
Instruction 19, granted the defendant, is similar in its language and thought to instruction No. 5 (complained of) granted to the State. The case of Hinton v. State, 129 Miss. 226, 91 So. 397, lays down the rule that the appellant cannot complain of a charge similar to an instruction that is granted at his request.
Argued orally by Orma R. Smith, for appellant, and by Webb M. Mize, for the State.
This is the second appearance of this case here. Appellant was charged with the murder of Bynum Burns, and was convicted of manslaughter. The judgment was reversed by this court and the cause was remanded. 163 So. 390. On another trial, appellant was convicted of murder and sentenced to the penitentiary for life. From that judgment this appeal is prosecuted.
On the first trial appellant, by the verdict of manslaughter, was necessarily acquitted of the charge of murder, and for that reason he contends that he could not again be tried for murder; that such a trial would amount to a denial of the right guaranteed to him by section 22 of the Constitution — that no person's life or liberty shall be twice placed in jeopardy for the same offense. The Constitutional Convention of 1890 amended this section of the Bill of Rights by adding this language: "But there must be an actual acquittal or conviction on the merits to bar another prosecution." In Jones v. State, 144 Miss. 52, 109 So. 265, 59 A.L.R. 1146, the court held that the last clause of this section had the effect of changing the former rule — that on a reversal of a conviction of manslaughter under an indictment for murder the accused could only be tried again for manslaughter — and that, when the judgment of conviction of manslaughter is reversed on the application of the defendant, the cause stands for trial de novo on the original indictment, and the defendant may again be tried for murder. The appellant concedes that to be the rule now in this state but argues that it is unsound and ought to be overruled. We do not agree. We decline to go back to the old rule.
The evidence in the case made both the issues of murder and manslaughter. The court, therefore, was justified in submitting both to the jury. The court gave the following instruction for the state:
"The court charges the jury for the State that although you may believe from the evidence in this case beyond a reasonable doubt that just prior to the fatal cutting, Bynum Burns had slapped J.C. Osborn and that this fact had been communicated to the defendant, Clifford Butler, and that Clifford Butler went into the house and took hold of Bynum Burns and led or pulled the said Bynum Burns out of the house, and that after getting out of the house and after the exchange of several words, the defendant, Clifford Butler, called Bynum Burns a damn liar or a son-of-a-bitch and that thereupon Bynum Burns struck Clifford Butler with his fist, this did not justify the defendant Clifford Butler in taking the life of the said Bynum Burns; but if you further believe from all the evidence in this case beyond a reasonable doubt that the defendant Clifford Butler, cut and killed Bynum Burns, not in necessary self-defense and at a time when he, the said Clifford Butler, was in no danger of great bodily harm, real or apparent at the hands of Bynum Burns, then you should find the defendant guilty as charged."
Appellant contends that the instruction was erroneous and harmful in that it took away from the jury the manslaughter issue; that the jury could not find appellant guilty of manslaughter without violating this instruction. The phrase "malice aforethought," or its equivalent, was left out of the instruction. "Malice aforethought" is the distinguishing feature between murder and manslaughter, and there can be no murder without malice aforethought; a homicide without it and in the heat of passion is not murder but may be manslaughter. This instruction set out the state's case concretely — the evidence the state relied on for conviction — and told the jury that, if they believed it beyond a reasonable doubt, they should find appellant guilty of murder. The error in the instruction is the absence of the phrase "malice aforethought," or its equivalent, and the failure to inform the jury that, if the killing took place in the heat of passion and without malice aforethought, their verdict should be manslaughter and not murder. McDonald v. State, 78 Miss. 369, 29 So. 171; Brett v. State, 94 Miss. 669, 47 So. 781.
It is true that the court in other instructions properly defined both murder and manslaughter, and it is argued that, reading all the instructions together, the jury was not misled. The trouble about that position is that all the instructions cannot be read into each other and made a consistent whole. The instruction under consideration makes an irreconcilable conflict; it set out the state's case in detail and told the jury, in effect, that, if they believed that case beyond a reasonable doubt, there was only one verdict they could render, that of murder. Ellis v. Ellis, 160 Miss. 345, 134 So. 150; Louisville N.R. Co. v. Cuevas, 162 Miss. 521, 139 So. 397. We think the appellant's other criticisms of the instruction are without merit and not sufficiently serious to call for a discussion by the court.
Appellant argues that the court erred in giving the following instruction: "The court charges the jury for the State that they are the sole judges of the weight of the evidence and the credibility of the witnesses, and that if they believe any witness has intentionally and corruptly sworn falsely to any material fact in the case, then they may disregard the entire testimony of such witness."
We think the contention well founded because of the failure of the instruction to inform the jury that their belief had to be based on the evidence. Powers v. State, 168 Miss. 541, 151 So. 730; Butler v. State, 83 Miss. 437, 35 So. 569. The further criticism of the instruction because of the absence of the word "knowingly" is without merit; the word "intentionally" is used instead, and we think that is equivalent to "knowingly."
Appellant criticizes some of the instructions because in defining the crime they leave out an essential part of the definition, "without authority of law." If error that was, it was harmless in this case, because appellant made no claim that the homicide was committed by authority of law.
We are of the opinion that the remainder of the record is without harmful error.
Reversed and remanded.