Opinion
No. 36195.
October 14, 1946.
CRIMINAL LAW.
Supreme Court had no jurisdiction on certiorari to order motion for new trial, filed after adjournment of term and hence too late for consideration by either trial judge or Supreme Court, sent up and incorporated into record on appeal but denial was without prejudice to further proceedings.
(In Banc. Feb. 10, 1947. Suggestion of Error Overruled March 17, 1947.) [29 So.2d 84. No. 36195.]1. CRIMINAL LAW. Homicide.
In murder prosecution, the evidence and witnesses' credibility were for jury.
2. CRIMINAL LAW.
In murder prosecution, instruction for State in exact language of statutory definition of murder was not erroneous because it stated abstract legal definition, as it was appropriate and measured State's obligation under charge on which it sought to convict (Code 1942, sec. 2215).
3. CRIMINAL LAW.
An instruction for State, setting forth allowable verdicts on conviction of murder and their respective implications, was not erroneous as precluding conviction of manslaughter, where it was prefaced with proviso that conviction be as charged in indictment.
4. CRIMINAL LAW.
An instruction that, to justify homicide on plea of self-defense, something must be shown in deceased's conduct to indicate present intention to kill or do great personal injury to slayer and imminent danger of such intention being accomplished, that mere fears or beliefs are insufficient, and that danger must be such as to lead a person reasonably to believe that killing was necessary to prevent deceased from killing slayer or doing him great bodily harm, was not erroneous as shifting burden of proof to defendant.
5. CRIMINAL LAW. Homicide.
In murder prosecution, State's burden is to make out affirmatively its prima facie case beyond all reasonable doubt, and it must maintain such degree of proof against defenses asserted by defendant, but defendant must go forward in establishment of defenses.
6. CRIMINAL LAW.
In murder prosecution, defendant need do no more than infect State's case with reasonable doubt, but procedurally, his burden is to do so, after establishment of prima facie case of guilt.
7. CONSTITUTIONAL LAW.
Where evidence justified conviction of murder, failure of defendant's counsel to file motion for new trial did not justify inference of such inadequacy of representation by counsel as amounted to denial of due process; all errors assignable by such motion being available to defendant on appeal.
8. CRIMINAL LAW.
Assertions of facts, set forth in brief of defendant's counsel on appeal from conviction as material for motion for new trial, cannot be considered, where no such motion was filed.
APPEAL from circuit court of Attala county, HON. JOHN F. ALLEN, Judge.
Jackson Young and Joe H. Daniel, all of Jackson, for appellant.
The court erred in submitting to the jury the question of appellant's guilt of murder on this record.
Cockrell v. State, 175 Miss. 613, 168 So. 617; Jones v. State (Miss.), 6 So.2d 304; McCaffrey v. State, 185 Miss. 659, 187 So. 740; Smith v. State (Miss.), 185 So. 193; Staiger v. State, 110 Miss. 557, 70 So. 690; Taylor v. State, 188 Miss. 166, 194 So. 589; Walker v. State, 188 Miss. 177, 189 So. 804.
The court erred in granting the second instruction for the State, defining murder, because such instruction is not proper in situation in which conviction of manslaughter may be sustained.
Barnes v. State, 118 Miss. 621, 79 So. 815; Butler v. State, 177 Miss. 91, 170 So. 148; Ervin v. State, 123 Miss. 139, 85 So. 183; Gamblin v. State (Miss.), 29 So. 764; McDaniel v. State, 8 Smedes M. (16 Miss.) 401, 1 Mor. St. Cas. 336, 47 Am. Dec. 93; McDonald v. State, 78 Miss. 369, 29 So. 171; Murphy v. State, 89 Miss. 827, 42 So. 877; Williams v. State, 120 Miss. 604, 82 So. 318, 122 Miss. 151, 433, 84 So. 8; Williams v. State, 127 Miss. 851, 90 So. 705; Code of 1942, Secs. 2215, 2224.
The court erred in granting the third instruction for the State, enjoining conviction of murder or nothing, and eliminating jury's return of manslaughter verdict.
Dillon v. State, 196 Miss. 625, 18 So.2d 454; Grant v. State, 172 Miss. 309, 160 So. 600; Johnson v. State, 75 Miss. 635, 23 So. 579; Jones v. State, 98 Miss. 899, 54 So. 724; Morris v. State (Miss.), 174 So. 562.
The court erred in granting the fifth instruction for the State, since such instruction shifts burden of proof to defendant, is confusing, misleading, and argumentative, and is not applied to facts of this case.
Hampton v. State, 99 Miss. 176, 54 So. 722; Hawthorne v. State, 58 Miss. 778; Reddix v. State, 134 Miss. 393, 98 So. 850; 20 Am. Jur. 153, 154, Sec. 149.
The appellant has been deprived of his constitutional guaranties, in this, that Section 2505, Code of 1942, requires that counsel shall be appointed for an indigent defendant (which the court found appellant to be) "to defend him in the circuit court, upon the trial of such charge," but that the counsel so appointed did not defend the appellant throughout all steps of the trial by failing and neglecting to submit a motion for a new trial before that term of court was adjourned, and the trial court erred in not requiring that such attorneys continue to represent appellant through all steps of the trial, including the motion for new trial, and presenting the appeal to the Supreme Court, appellant being ignorant, indigent, and a ward of the court; the entire plan and scheme provided by Mississippi statutes, unless so construed, is a denial of due proces of law, equal protection of the law, and the right of the appellant to have the assistance of counsel, as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States, and Sections 14 and 26 of the Mississippi Constitution of 1890, also to the prejudice of the appellant.
Justice v. State, 170 Miss. 96, 154 So. 265; Brown v. Mississippi, 297 U.S. 278, 80 L.Ed. 682, 56 S.Ct. 461; Castro v. State, 196 Ind. 385, 147 N.E. 321; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; People v. Looney, 314 Ill. 150, 145 N.E. 365; Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527; Code of 1942, Secs. 1537, 2505; 39 Am. Jur. 37, 38, Secs. 9, 11, p. 160, Sec. 153.
The jury found contrary to the overwhelming weight of the evidence.
Bryant v. State, 172 Miss. 210, 157 So. 346; Byrd v. State, 179 Miss. 336, 175 So. 190; Cunningham et al. v. State (Miss.), 200 So. 248; Dixon v. State, 188 Miss. 797, 196 So. 637; Ephraim v. State (Miss.), 174 So. 815; Goodson v. State (Miss.), 163 So. 447; Johnson v. State, (Miss.), 168 So. 479; Judon v. State (Miss.), 155 So. 428; Justice v. State, supra; McDougal v. State, 199 Miss. 39, 23 So.2d 920; Manning v. State, 188 Miss. 393, 195 So. 319; Moore v. State, (Miss.), 194 So. 921; Ross v. State, 185 Miss. 438, 188 So. 295; Sones v. State (Miss.), 155 So. 188; Spradling v. State (Miss.), 163 So. 144; State Highway Commission v. Chatham et al., 173 Miss. 427, 161 So. 674; Vanderslice v. State (Miss.), 166 So. 372.
S.D. Redmond, of Jackson, for appellant.
The verdict is against the weight of the evidence.
Hampton v. State, 88 Miss. 257, 40 So. 545, 117 Am. St. Rep. 740; Johnson v. State, 186 Miss. 405, 191 So. 127; Ewing v. State (Miss.), 9 So.2d 879; Jeffcoat v. State (Miss.), 21 So.2d 8.
Appellant was deprived of due process of law and the equal protection of the law as guaranteed by the 14th Amendment to the United States Constitution and Article 3, Section 14, of the Mississippi Constituton.
It was impossible for appellant to get a fair, deliberate and impartial trial in Attala County where he could not remain with safety to his life at night.
Lee v. State, 160 Miss. 618, 134 So. 185; McGee v. State, 200 Miss. 350, 26 So.2d 680; Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265; Brown v. Mississippi, 297 U.S. 278, 80 L.Ed. 682, 56 S.Ct. 461; Mooney v. Holohan, 294 U.S. 103.
Ample time was not given counsel appointed by the court to prepare his defense and he has not been properly tried. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55; Brown v. Mississippi, supra;
The attorney appointed by the court did not raise the issues necessary to his defense and could not raise them because of the mores of the community.
Appellant's theory and defense were never presented to the jury.
Powell v. Alabama, supra.
The court erred in giving instruction No. 1 for the State for the reason that it is prejudicial in that it uses technical terms without defining them and is therefore misleading and confusing.
The court erred in giving instruction No. 2 for the State for the reason that it is an abstract statement of the law, is not applicable to the situation here and is both prejudicial and misleading.
Wood v. State, 81 Miss. 408, 33 So. 285; Strickland v. State, 81 Miss. 134, 32 So. 921.
The court erred in giving instruction No. 5 for the State for the reason that it is improper, is inapplicable to the testimony in the case and put an undue burden on appellant.
Hathorn v. State, 138 Miss. 11, 102 So. 771.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
The killing with a deadly weapon is assumed to be malicious, and therefore murder, and before the presumption disappears the facts of the killing must appear in the evidence and must change the character of the killing, either showing justification or necessity, before it is reduced from murder. If the facts relied upon to change such presumption are unreasonable and improbable, or if they are contradicted by physical facts and circumstances in evidence, then the jury may find a verdict of murder or manslaughter, according to the circumstances and facts in evidence.
Bennett v. State, 152 Miss. 728, 120 So. 837.
There were no facts introduced in evidence that would reduce this killing from murder to manslaughter. Under the facts in this case, the jury were warranted in inferring the presence of malice from the use of the deadly weapon, the knife with which the mortal wound was inflicted. The deliberate design to effect the death of another may be formed in an instant. There is no particular measure of time necessary for its formation. We are of the opinion that the evidence was sufficient to justify the verdict of the jury.
Johnson v. State, 140 Miss. 889, 105 So. 742.
See also Jones v. State, 178 Miss. 636, 174 So. 546; Williams v. State (Miss.), 26 So.2d 174; Carter v. State, 199 Miss. 871, 25 So.2d 470.
Appellant complains of the following instruction for the State: "The court instructs the jury for the state that the killing of a human being, without authority of law, by any means or in any manner, shall be murder when done with the deliberate design to effect the death of the person killed or of any human being." The instruction embodied the statutory definition of murder.
Adams v. State, 175 Miss. 868, 167 So. 59; Atkinson v. State, 137 Miss. 42, 101 So. 490; Brown v. State, 173 Miss. 542, 158 So. 339.
The third assignment argued by counsel for the appellant is as follows: "The court erred in granting the third instruction for the State, enjoining conviction of murder or nothing, and eliminating jury's return of manslaughter verdict." The instruction objected to reads as follows: "The Court charges the jury, that if they believe from the evidence beyond all reasonable doubt that the defendant is guilty as charged in the indictment, to-wit, of murder, they may return either of the following verdicts"; then follows the three murder verdicts. This instruction has been approved many times by the Court and it will be observed that the instruction tells the jury that if the defendant is guilty of murder, which would, of course, necessitate one of the murder verdicts. In Grant v. State ( 172 Miss. 309, 160 So. 600), the instruction condemned by the Court was entirely different. In that case the jury was instructed in a murder case that if the defendant was found guilty they would return one of the three murder verdicts. This instruction was held to be erroneous for the reason that the jury could have found the defendant guilty of manslaughter, which was naturally embraced in the indictment for murder, and by this instruction they were prevented from so doing. This is not the case with the instruction at bar. Furthermore, the appellant was granted two instructions upon manslaughter. Therefore, it follows that the jury could not have been misled, as the court has held that all instructions given in a criminal case must be considered together.
Williams v. State, 160 Miss. 485, 135 So. 210; Holmes v. State, 192 Miss. 54, 4 So.2d 540.
The fourth assignment argued by counsel for appellant is as follows: "The court erred in granting the fifth instruction for the State, since such instruction shifts the burden of proof to defendant, is confusing, misleading and argumentative, and is not applied to facts of this case." A clerical error was made by the clerk in copying the fifth instruction for the record. Since counsel for appellant filed his brief a correct copy of the instruction has been obtained, and counsel for appellant has agreed to the correctness thereof. This instruction which is objected to reads as follows: "The Court instructs the jury that in order to justify a homicide on the plea of self defense there must be something shown in the conduct of the deceased indicating a present intention to kill, or to do some great personal injury to the slayer, and eminent danger to such intention being accomplished; and mere fears or belief are insufficient. The danger must be such as to lead a person reasonably to believe that the killing was necessary to prevent the deceased from killing him, or doing him some great bodily harm." With all deference to counsel, this identical instruction was approved in the case of Holmes v. State, 199 Miss. 137, 24 So.2d 90, which cited the case of Williams v. State (Miss.), 14 So.2d 216.
Two able and elderly attorneys, Honorable David E. Crawley and Honorable Joe D. Guyton, veteran members of the bar, Mr. Crawley being an ex-district attorney with a large and varied criminal experience, were appointed by the court to defend the appellant, and I submit that they fully complied with their responsibility and defended the appellant to the best of their ability where obviously there was no defense to be made, the appellant not even taking the witness stand in his own behalf, it being, of course, his constitutional right not to do so. I submit that under the holding of our Court counsel for appellant were under no obligation to file a motion for a new trial or appeal the case to the Supreme Court.
If counsel are satisfied after consideration, that there is not probable error in the court below, we do not think we should be troubled with appeals wholly devoid of merit. Such appeals unduly delay the punishment of crime and consequently, to that extent, bring the administration of justice into contempt and encourage crime. In the eyes of the law a conviction by a jury after a fair trial, sustained by the opinion of the circuit judge, is sufficient to satisfy the law. In such case counsel are not responsible if they have done their full duty, but the responsibility rests upon the law administered by the circuit court.
Henson v. State, 143 Miss. 199, 108 So. 719.
An assignment that the verdict was against the weight of the evidence cannot be entertained by the Supreme Court in the absence of a motion for a new trial in the trial court.
Justice v. State, 170 Miss. 96, 154 So. 265.
A reading of the record in this case, and of the instructions granted the appellant and the State, will show that the trial court was most liberal in granting the appellant instructions upon self-defense and manslaughter, when, in my opinion, there was no evidence upon which to base the self-defense instructions. The appellant received a fair and impartial trial in the court below; he was denied none of his constitutional rights, and the judgment of the lower court should be affirmed.
Argued orally by Joe H. Daniel, for appellant, and by R.O. Arrington, for appellee.
Appellant was convicted of murder and death sentence was imposed. He files motion for certiorari suggesting diminution of the record. No motion for new trial was made before adjournment of the term. Later, such motion was presented, but is not part of the record on appeal.
The motion for certiorari prays that this Court order the motion for new trial sent up and incorporated into the appeal record. Regardless of the serious points urged as a basis for the motion, we are without authority to consider same under this procedure. It is not shown that the trial judge acted thereon, and it is not therefore proper subject for an assignment of error. However, the motion was filed too late for consideration by either the trial judge or this Court.
The motion must be denied, but without prejudice to rights, if any, appellant may have to proceed otherwise. Pittman v. State, 147 Miss. 593, 113 So. 348.
Overruled.
Appellant was convicted of murder, the judgment carrying the death penalty. The testimony shows with ample corroboration that appellant stabbed deceased with a knife twice in the chest and once in the back. No provocation is shown, and while a motive is not disclosed the intent to kill is now beyond question. Self-defense was not pleaded or shown. The evidence and the credibility of witnesses were for the jury.
In recognition of the solemn and serious consequences of our judgment, we are minded to take notice here of the assigned errors, although we do not find them sufficient to displace the judgment of the trial court.
The second instruction for the State was in the exact language of our statutory definition of murder. Code 1942, Sec. 2215. That this states an abstract legal definition is not error. It was here appropriate, and the State thereby measured its own obligation under the charge upon which it sought to convict. Brown v. State, 173 Miss. 542, 543, 158 So. 339, 161 So. 465.
The third instruction for the State set forth the allowable verdicts upon conviction of murder and their respective implications. It did not preclude conviction for manslaughter for it was prefaced with a proviso that conviction be "as charged in the indictment."
The fifth instruction for the State was as follows: "The Court instructs the jury that in order to justify a homicide on the plea of self defense there must be something shown in the conduct of the deceased indicating a present intention to kill or to do some great personal injury to the slayer, and imminent danger of such intention being accomplished; and mere fears or belief are insufficient. The danger must be such as to lead a person reasonably to believe that the killing was necessary to prevent the deceased from killing him or doing some great bodily harm."
The objection that the quoted instruction shifts the burden of proof to the defendant is not well-taken. The State's burden is to make out affirmatively its prima facie case beyond all reasonable doubt. Of course, it must maintain this degree of proof against defenses asserted by the defendant, but it is the defendant's concern and duty to go forward in the establishment of his defenses. The instruction goes no further than recognition of such duty. It does not undertake to measure the degree to which defensive proof must rise. His own instructions make it clear that he need do no more than infect the State's case with reasonable doubt. But, procedurally, this is his burden, once a prima facie case of guilt has been established. The instruction thus defining self-defense has heretofore been approved in Holmes v. State, 199 Miss. 137, 24 So.2d 90.
Appellant was represented by two able members of the bar. Intimations of inadequacy amounting to denial of due process are not justified as inferable from a failure of counsel to file motion for a new trial. Our view that the evidence justifies the verdict means that all errors thereby assignable are available to appellant by his appeal. Nor can we consider assertions of fact set forth in counsel's brief as material for such a motion since none was filed.
Affirmed.
Friday, March 28, 1947, fixed as the date of execution.