Opinion
No. 30834.
December 4, 1933.
1. HOMICIDE.
Evidence of defendant's undue attentions to prosecuting witness' daughter held irrelevant in trial for assault with intent to kill, in absence of showing of any connection between such fact and defendant's difficulty with prosecuting witness.
2. HOMICIDE.
Instruction on murder and assault with intent to kill held erroneous as omitting requirement that killing should be without legal authority to constitute murder and that cutting must have been done with intent to kill.
3. HOMICIDE.
Element of intent to kill raises misdemeanor of assault and battery to dignity of felony.
APPEAL from Circuit Court of Wayne County.
Jones Turner and W.M. Hutto, all of Waynesboro, for appellant.
The testimony relative to attentions to the daughter is highly prejudicial, irrelevant and immaterial, obviously the state was trying to prejudice the minds of the jurors against the defendant with testimony, clearly without any probative value to the state.
Underhill on Criminal Evidence (3 Ed.), sec. 150, page 187; Cotton v. State, 17 So. 373; Webster v. State, 103 Miss. 359, 60 So. 214; Hardy v. State, 108 So. 727; Holt v. State, 29 So. 527, 528.
There was no testimony which would even tend to demonstrate that the altercation in question arose from or was proximately traceable to the alleged relationships or even with the slightest degree connect any relations or conduct between the defendant and the daughter of the witness Boss Hinton, and the alleged crime.
The court erred in giving instruction number one for the State, wherein the court charges the jury for the State that murder is the killing of a human being with malice aforethought, and not in necessary self defense, in this case you are charged that if you believe from the evidence beyond a reasonable doubt that Earl cut Hinton at a time when his own life was not in danger and he was not in fear of bodily harm and not in necessary self defense, it will be your sworn duty to convict, and you are further charged that no measure of time is necessary in which a person may for malice in his mind, but the same may be done in an instant.
The instruction omits the hypothesis of intent to kill and murder, and also omits the necessary hypothesis that the cut was inflicted with a deadly weapon.
Lott v. State, 93 So. 481, 130 Miss. 119, 99 So. 270; 3 S. M. 553.
The instruction is further erroneous, in that the last sentence the phrase "with intent to kill" is not authorized by the statute, and does not pronounce the correct rule of law in this case. The statute clearly sets out, that it must be an intent to kill and murder.
The question of whether or not a weapon is a deadly weapon is a question to be determined by the jury, and in the absence of the evidence sufficient to show that the weapon used was actually a deadly weapon, the jury would not be warranted under the instruction of the court in this case, and under their oath to find that the weapon used was a deadly weapon.
24 So. 314.
Under the evidence in this case the State had failed to establish a prima facie case of assault and battery, with intent to murder, because the whole of the corpus delicti, a necessary element to have been proven by the State in order to sustain the conviction as charged in the indictment, was not proven.
3 S. M. 553.
It is our contention that if the appellant believed that he was in danger of bodily harm, real or apparent, or that his life was in danger at the time of the difficulty, that he should have been permitted to make this proof to the jury, so that the jury would have a right to determine from all the facts and circumstances in this case whether or not the appellant was justifiable in his acts, and when the court refused to let him make answer to the said questions the appellant was completely deprived of his right of self-defense, and that this was error on a part of the trial court.
Echols v. State, 55 So. 485; Shannon v. State, 28 S.W. 687; Patterson v. State, 75 Miss. 670.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
The evidence as to who was the aggressor in the fatal encounter, on the solution of which the guilt or innocence of the appellant depends, being in irreconcilable conflict, the state of mind of each of the participants therein toward the other was a material inquiry, and any evidence pertaining thereto, unless incompetent on some other ground, should have been admitted.
Clark v. State, 123 Miss. 147, 85 So. 188; McCormack v. State, 159 Miss. 610, 132 So. 757; Lee v. State, 160 Miss. 618, 134 So. 185; Cartee v. State, 162 Miss. 263, 139 So. 618.
The instruction complained of is incorrect in at least two main particulars. It attempts to define murder, but does not do so in that it omits the requirement that the killing should be without authority of law.
Smith v. State, 147 So. 482.
Appellant contends that the instruction is also bad in that it does not require the jury to believe that the cutting was done with intent to kill and murder. I think this criticism is well founded, as it is the element of intent that raises the crime to the dignity of a felony and distinguishes the crime from a misdemeanor.
Houston v. State, 54 Miss. 689; Jeff v. State, 37 Miss. 321; Herring v. State, 134 Miss. 505, 99 So. 270.
It was held that when the State had shown the unlawful use of a deadly weapon in an assault and battery that this is prima facie evidence of an intent to kill and murder and this prima facie case will prevail until rebutted by the proof in the case.
Jeff v. State, 37 Miss. 321; Jeff v. State, 30 Miss. 593.
J.B. Earl, a white man, was convicted on an indictment charging him with assault and battery, with an intent to kill and murder one Boss Hinton, a negro, and was sentenced to serve three years in the penitentiary.
We shall not detail the facts, as the case must be tried again. Suffice it to say that the prosecuting witness, Boss Hinton, made out a case of assault and battery with an intent to kill and murder him by the appellant using a knife and seriously wounding the said Hinton, according to the evidence of the physician who attended him.
The appellant's evidence was to the effect that he acted purely in self-defense; Hinton being the aggressor throughout in the difficulty, which seemed to have been brought about by Hinton climbing a fence instead of going through the gate.
Hinton was allowed to testify that in August, 1932, prior to the difficulty, the appellant was in the habit of visiting Hinton's home and showing undue attention to his fourteen year old daughter, and other like matters not necessary to detail. In rebuttal, Hinton's wife and the mother of the girl was permitted to testify for the state, that on one occasion about ten months before the difficulty she saw her daughter running toward her home being pursued by the appellant. All of this testimony was offered for the purpose of showing that the appellant cherished ill will toward the prosecuting witness because of the attention shown by appellant to the mulatto girl. This evidence was permitted to go to the jury over the objection of the appellant.
It is assigned as error that the evidence with reference to the attention of Earl to the little negro girl and her father's objection thereto was permitted to be introduced.
No connection whatever is shown between this difficulty in which the appellant stabbed Hinton and the matters just mentioned, and we are of the opinion that the court erred in permitting this evidence to be heard and considered by the jury.
In Cotton v. State, 17 So. 372, this court held that "The admission of evidence that the defendant on trial for murder had, a week before the killing, ravished the daughter of the deceased, was reversible error," and Judge Cooper, as the organ of the court, said: "The fact . . . that the appellant had ravished the daughter of the deceased very naturally suggests that the deceased might have had a motive to kill the accused, but it does not suggest naturally that the accused would therefore have had a motive to kill the deceased."
In the case at bar, the evidence mentioned above did not tend to prove that the appellant was the aggressor in this difficulty, and the fact that the appellant had pursued the girl ten months before was wholly disconnected from the facts and circumstances surrounding this difficulty. The rule on which anterior evidence is admissible as a defense may be found in the following cases: McCormick v. State, 159 Miss. 610, 132 So. 757; Lee v. State, 160 Miss. 618, 134 So. 185; and Cartee v. State, 162 Miss. 263, 139 So. 618.
It is also complained that the court erred in giving for the state the following instruction: "The court charges the jury for the State that murder is the killing of a human being with malice aforethought and not in necessary self-defense, and in this case you are charged that if you believe from the evidence, beyond a reasonable doubt, that Earl cut Hinton at a time when his own life was not in danger, and he was not in fear of bodily harm, and not in necessary self-defense, it will be your sworn duty to convict, and you are further charged that no measure of time is necessary in which a person may form malice in his mind, but the same may be done in an instant."
This instruction omits the requirement that the killing should be without authority of law to constitute murder; and, further, the instruction does not require the jury to believe that the cutting was done with the intent to kill and murder Hinton, and the omission is fatal to the conviction, and the error is not cured by other instructions.
It is the element of intent that raises the crime to the dignity of a felony and distinguishes it from a misdemeanor. See Jeff v. State, 37 Miss. 321; Hairston v. State, 54 Miss. 689, 28 Am. Rep. 392; Herring v. State, 134 Miss. 505, 99 So. 270; and Lott v. State, 130 Miss. 119, 93 So. 481.
There were two other instructions granted for the state which are subject to criticism, but which will likely not occur again on the next trial in the light of what we have here said.
For errors in granting the instruction and admitting evidence as detailed above, this case must be remanded for a new trial.
Reversed and remanded.