Opinion
No. 33554.
May 15, 1939.
1. HOMICIDE.
Evidence sustained conviction of murder as against claim of self-defense.
2. CRIMINAL LAW. Homicide.
In murder prosecution where defendant claimed self-defense, instruction for the state that malice aforethought did not have to exist in mind of defendant for any certain length of time, and that if at moment of stabbing defendant cut victim with deliberate design to take his life, and not in necessary self-defense, the act was murder, was not error as improperly defining malice aforethought, and limiting self-defense to moment of killing, or as eliminating question whether defendant stabbed deceased in heat of passion, in view of instruction given for defendant.
3. CRIMINAL LAW. Homicide.
In murder prosecution where defendant claimed self-defense, an instruction for the state which, in substance, was claimed by defendant to have eliminated manslaughter from consideration of jury was not ground for complaint by defendant, where defendant was granted an instruction that jury must either find him guilty of murder or not guilty, especially where defendant did not deny that he opened his knife a few moments before fatal encounter.
4. CRIMINAL LAW.
On motion for a new trial based on facts not known during the trial, both defendant and his attorneys must make affidavit, or testify under oath, that they were ignorant of such facts during trial.
5. CRIMINAL LAW.
Supreme Court could not consider assignment of error based on refusal of defendant's motion for new trial on ground that defendant was prejudiced by manner in which talesmen were summoned for trial by a deputy sheriff, where motion for new trial was not accompanied by affidavit of defendant or his counsel stating they did not know of such facts at or before beginning of trial, and neither counsel nor defendant were offered as witnesses on the motion for new trial.
APPEAL from the circuit court of Monroe county; HON. THOS. H. JOHNSTON, Judge.
R.L. Pullen and Richard B. Booth, both of Aberdeen, for appellant.
The court committed error in granting each and all of the instructions requested by the appellee, particularly Instruction No. 2. Appellant contends that Instruction No. 2 granted for the state was fatally erroneous in that it failed to correctly guide the jury in reaching a verdict for a number of reasons, and for purposes of discussion these reasons will be divided into several topics. First, that the instruction erroneously defined malice aforethought. Second, that the instruction was on the weight of the evidence. Third, the instruction limits self-defense to the moment of the killing. Fourth, the instruction failed to include therein the phrase, "Believe from the evidence in the case beyond a reasonable doubt."
The instruction is clearly erroneous and prejudicial in that it informs the jury that it is sufficient that the deliberate design to kill existed only at the very instant of the fatal stabbing and that such constitutes malice aforethought; and in that it makes every intentional killing murder, unless in self defense.
Though it may have been termed deliberation, premeditation, deliberate design, premeditated design, or malice aforethought, the quality represented has always been considered and recognized by this court as an essential element of the crime of murder.
McDonald v. State, 29 So. 171, 78 Miss. 369; Gamblin v. State, 29 So. 764; Breet 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, 8 So. 292, 68 Miss. 233; Hunter v. State, 21 So. 306, 74 Miss. 515; Beasley v. State, 8 So. 234, 64 Miss. 518; 13 R.C.L. 931, 932; Lott v. State, 93 So. 481, 130 Miss. 119; Smith v. State, 91 So. 41; Butler v. State, 170 So. 148, 177 Miss. 91; State of Iowa v. Sypes, 47 A.L.R. 407, 209 N.W. 458.
The process of premeditation and deliberation cannot be simultaneous with the commission of the act, but must precede the act by some appreciable length of time and must precede the formation of the design to kill.
State v. Sopher, 70 Iowa 494, 30 N.W. 917; Commonwealth v. Tucker, 189 Mass. 457, 7 L.R.A. (N.S.) 1056, 30 N.W. 917; State v. Clayton, 83 N.J.L. 673, 85 A. 173.
It is not enough that the design to kill existed at the time of the killing, but it must have been formed before it was put into execution.
29 C.J. 1116.
The thought of taking life must have been consciously conceived in the mind, and the conception must have been meditated on, and a deliberate determination formed to do the act, though these things may follow as instantaneously as successive thought can follow each other.
13 R.C.L. 777; Jackson v. State, 79 Miss. 42, 31 So. 420; McDonald v. State, 29 So. 171, 78 Miss. 369.
Since in a criminal case the jury returns no specific findings of fact, and it is impossible in most cases for the court to honestly say that the jury did or did not accept as true certain facts, it is impossible to say, except in some few cases, that the defendant was not prejudiced by an erroneous instruction. The damage to defendant will be increased where the evidence is nearly evenly balanced, or is directly conflicting on the point which is erroneously defined.
Cook v. State, 85 Miss. 738, 38 So. 110.
The instruction was on the weight of the evidence.
McDonald v. State, 29 So. 171, 78 Miss. 369.
The instruction deprives the defendant of the value of the presumption of innocence and removes from the consideration of the jury everything but the immediate intent at the time of the stabbing and is clearly an instruction on the weight of evidence. As such it can only mislead the jury on the law as to one of the material elements of the case, and operated to the great prejudice of the defendant; and for these reasons alone constitutes reversible error.
Wilburn v. State, 18 So. 576, 73 Miss. 245; Hood v. State, 155 So. 679, 170 Miss. 630; Leverett v. State, 73 So. 233, 112 Miss. 394; Wicker v. State, 65 So. 885, 107 Miss. 690; Wood v. State, 33 So. 285, 81 Miss. 408; Mosely v. State, 41 So. 384, 89 Miss. 802.
The instruction limits self-defense to the moment of the killing.
Vance v. State, 183 So. 280; Irby v. State, 185 So. 812.
The instruction fails to include therein the phrase:
"Believe from the evidence in the case beyond a reasonable doubt."
Butler v. State, 83 Miss. 437; Butler v. State, 177 Miss. 91, 170 So. 148; Busby v. State, 177 Miss. 68, 170 So. 140; Powers v. State, 168 Miss. 541, 151 So. 730; Godwin v. State, 73 Miss. 873, 19 So. 712.
We do not have a case here of complementary instructions. The instruction complained of was the only instruction wherein the state set out its theory of the case and attempted to apply a principle of law to the evidence of the case. It is true that the state, in its first instruction, set out a correct statement of the law, but that instruction was purely and certainly a statement of an abstract principle of law, taken evidently from the Code of 1930. We want further to make note that the instruction complained of is the last instruction given for the state in this case.
14 R.C.L., pages 814, 815; I.C.R.R. Co. v. Minor, 69 Miss. 710, 11 So. 101, 16 L.R.A. 627; Ellis v. Ellis, 160 Miss. 345, 134 So. 150; Louisville N.R. Co. v. Cuevas, 162 Miss. 521, 139 So. 397; Chapman v. Copeland, 55 Miss. 476; Russell v. Williams, 168 Miss. 181, 150 So. 528; Pollard v. State, 53 Miss. 410.
In further support of our statement that the error in the instruction was not cured we cite the following authorities which bear, more or less, upon the proposition.
Enghlin v. Pittsburg 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; Kenton v. State, 31 Miss. 504; Harper v. State, 83 Miss. 402, 35 So. 572; Murphy v. State, 89 Miss. 827, 42 So. 877; Hawthorne v. State, 58 Miss. 778; Josephine v. State, 39 Miss. 647; House v. Fultz, 13 S. M. 39; Herndon v. Henderson, 41 Miss. 584; Miss. Central R. Co. v. Miller, 40 Miss. 45; I.C.R. Co. v. McGowan, 92 Miss. 603, 46 So. 55; Godfrey v. R.R. Co., 101 Miss. 565; Lbr. Co. v. Dickinson, 125 So. 93; Railroad v. Cornelius, 95 So. 90; R.R. v. Phillips, 12 So. 825; Mahaffey v. Russell, 100 Miss. 122; McNeil v. Bay Springs Bank, 100 Miss. 271; Hinds v. McCullers, 121 Miss. 666, 677; R.R. v. Trotter, 61 Miss. 417; Soloman v. Compress Co., 69 Miss. 319.
The court committed error in overruling the motion of the appellant for a new trial. On the motion for a new trial the appellant presented matters which the court had no opportunity previously to consider, principally the selection of the talesmen on the jury by interested parties. The court at that time also had the opportunity to view the cumulative effect of the errors committed and to review the conviction in the light of the trial as a whole. Upon a consideration of those matters the trial court would have been warranted in and should have granted the appellant a new trial, and it was error to fail so to do.
The verdict of the jury was contrary to the great weight and preponderance of the evidence in that the evidence is not sufficient to sustain a conviction of murder.
The defendant was prejudiced by the fact that the sheriff and his deputy were allowed to summon talesmen jurors and that the said sheriff and his deputy had reasons to be interested in the outcome of the case because of close personal relationship to the parent of the deceased, and that the said deputy habitually advised with the state's attorneys in the selection of jurors for criminal cases.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
Appellant complains of the instruction defining malice aforethought, which was granted the state. Appellant says this instruction erroneously defined malice aforethought; was on the weight of the evidence; that it improperly limited self-defense to the moment of the killing; that it failed to include therein the phrase that the jury must "believe from the evidence in the case beyond a reasonable doubt." This instruction has been before this court a great number of times, although in most instances the instruction has not been set out verbatim in the opinion. However, this instruction is a verbatim copy of the instruction used in Eaton v. State, 163 Miss. 130, 140 So. 729.
Also see what was said by the court in Huddleston v. State, 134 Miss. 382, 98 So. 839, as sustaining the proposition that malice may be suddenly formed and that no particular time or deliberation is required to make a killing deliberate and malicious.
Williams v. State, 163 Miss. 475, 142 So. 471; Motley v. State, 172 Miss. 148, 159 So. 553; Busby v. State, 177 Miss. 68, 170 So. 140; Johnson v. State, 140 Miss. 889, 105 So. 742.
Appellant refers to certain cases wherein the court has condemned instructions which estop an accused from pleading self-defense on the ground that such instructions limit the right to self-defense to the very instant of the killing. The instruction involved here is not the same character of instruction at all. As stated by Judge Anderson, in the Eaton case, supra, the instruction is primarily a definition of malice aforethought.
Woods v. State, 184 So. 511.
Appellant assigns the action of the court in overruling his motion for a new trial as error. This motion for a new trial raised no questions other than those present here so that the action of this court on the appeal will determine whether or not the trial court committed error in overruling this motion.
This court has said that on appeal evidence which tends to prove guilt will be considered by it most favorably to the state in determining the propriety of the refusal of the trial court to direct a verdict of not guilty and also on determining whether to reverse upon the ground of alleged insufficiency of evidence to sustain the verdict.
Redwine v. State, 149 Miss. 741, 115 So. 889; Pruitt v. State, 163 Miss. 235, 140 So. 683; Boutwell v. State, 165 Miss. 16, 143 So. 479.
And the court has further said that the verdict of the jury will stand whenever it finds that the action of the jury was based upon convincing, competent evidence, regardless of the nature or amount of it.
Thomas v. State, 129 Miss. 339, 92 So. 225; Dean v. State, 173 Miss. 254, 160 So. 583; Hinton v. State, 175 Miss. 308, 166 So. 762.
On the motion for a new trial, it was alleged that appellant was prejudiced by the manner in which talesmen were summoned for this trial. In Hilbun v. State, 167 Miss. 725, 148 So. 365, the court stated the following proposition, which is supported by seven other cases cited in the opinion: "On a motion for a new trial based on facts not known during the trial, both the defendant and his attorneys must make affidavit, or testify under oath, that they were ignorant of such facts during the trial."
In the absence of such oath or sworn testimony, this court will not review the action of the trial court in overruling a motion for a new trial.
Carter v. State, 167 Miss. 331, 145 So. 739; Magee v. State, 154 Miss. 671, 122 So. 766; Blevins v. State, 154 So. 269.
Hudson, the appellant, was tried on an indictment for murder in the killing of Clebert Mangrum, and was convicted by the jury which a recommendation for a life sentence in the penitentiary. A motion for a new trial was overruled and final judgment entered, whereby appellant was sentenced to the penitentiary for life.
We deem it unnecessary to detail all of the facts of this case. It is sufficient to say that a dispute arose between the deceased and the appellant as to the length of time which the deceased had drawn for labor performed by him for the appellant in Vaughn's Store in the Village of Hatley. Thereafter, the deceased was sitting in the store of Ford, connected with a filling station, and Hudson came in and renewed the quarrel. The evidence for the State tended to show that the appellant was drinking and under the influence of whiskey, and that deceased said to him, in effect, "If you don't leave me alone I will slap Hell out of you." Thereafter, Hudson retired from the store, and when he reached the door invited the deceased to come outside and settle it; and one witness testified that he (Hudson) at that time opened his knife and placed it in his pocket. Shortly thereafter, the deceased went to the door and approached appellant, placing his right hand on his shoulder, his left hand containing no weapon, and in that position, the testimony for the State shows, the appellant stabbed the deceased, with a knife, from which wound the deceased died in a very short time. The State's witnesses swore that the deceased made no demonstration, and had nothing in either hand.
The appellant's testimony, as a witness for himself, was to the effect that at the moment he stabbed the deceased, the latter had a knife in his left hand and was making a demonstration toward him, and that he was not mad but stabbed the deceased in order to protect his own life. He admitted that he had taken the knife out of his pocket a short time before he stabbed him, but did not deny that at that time he opened it. There was evidence that the deceased had threatened the appellant before the date of this occurrence. These threats were not communicated.
To sum up the evidence, there was ample testimony to warrant the jury in finding the appellant guilty of murder. On the other hand, there was evidence upon which the jury might have acquitted the defendant on his self-defense plea.
The Court granted the following instruction for the State: "The Court charges the jury for the State that malice aforethought, mentioned in the indictment, does not have to exist in the mind of the slayer for any given length of time; and if at the very moment of the fatal stabbing, the defendant, Jim Hudson, cut with the deliberate design to take the life of Clebert Mangrum, and not in necessary self-defense, real or apparent, then it was as truly malice and the act was as truly murder as if the deliberate design had existed in the mind of the defendant for minutes, hours, days, weeks, or even years."
The only other instruction given for the State was a statutory definition of murder, in which the jury was informed that if it believed from the evidence in the case, beyond a reasonable doubt, that the defendant, Jim Hudson, so killed Clebert Mangrum, then they should find the defendant guilty as charged, and should return either of the following statutory verdicts.
The defendant's instructions set forth fully the law of self-defense, and the required requisite burden of proof. Among the numerous instructions granted the defendant was this one: "The Court instructs the Jury for the Defendant: That you must either find the defendant guilty of murder or find him not guilty."
On the motion for a new trial, it was alleged therein that a deputy sheriff, who summoned two jurors after the venire was exhausted, was prejudiced and biased, had taken an active part in the prosecution, and was a witness for the State. The motion for a new trial was not accompanied by an affidavit of the counsel for the appellant that they did not know of these facts at or before the trial began, neither was there an affidavit on the part of the defendant. There was testimony offered on the motion, but neither counsel nor the defendant were offered as witnesses.
(1) It is suggested that the verdict of the jury is against the overwhelming weight of the evidence. We do not think that there is any merit in this contention. There was ample evidence to warrant the jury in finding the defendant guilty of murder.
(2) It is next contended that the instruction granted the State was erroneous and reversible error. The contentions of appellant being that the instruction complained of erroneously defined "malice aforethought;" that the verdict of the jury was against the overwhelming weight of the evidence; that it improperly limited self-defense to the moment of the killing; that it failed to include therein the phrase that "the jury must believe from the evidence in the case beyond a reasonable doubt;" and that it eliminated from the jury the right of defendant to have it consider the question of whether or not he stabbed the deceased in the heat of passion.
We do not think there is any merit in any of the contentions but in so far as the instruction eliminates manslaughter from the consideration of the jury, we have only to point to the instruction which we have quoted at length, by which the defendant procured the court to grant him an instruction eliminating manslaughter from the trial. In other words, the appellant and his counsel decided to pitch the issue upon murder or self-defense. In such situation, the appellant cannot be heard to complain of the instruction in this behalf. We express no opinion as to whether or not manslaughter was eliminated, but call attention to the fact that the appellant, as a witness for himself, did not deny that he opened his knife a few moments in advance of the fatal encounter between him and his antagonist.
(3) On the motion for a new trial, it was alleged that the appellant was prejudiced by the manner in which two talesmen were summoned for the trial by the deputy sheriff. In Hilbun v. State, 167 Miss. 725, 148 So. 365, 366, this Court stated the following proposition: "On a motion for a new trial based on facts not known during the trial, both the defendant and his attorneys must make affidavit, or testify under oath, that they were ignorant of such facts during the trial. Grady v. State, 158 Miss. 134, 130 So. 117; Salmon v. State, 151 Miss. 539, 118 So. 610; Queen v. State, 152 Miss. 723, 120 So. 838; Lipscomb v. State, 76 Miss. 223, 25 So. 158; Brown v. State, 60 Miss. 447; Harris v. State, 61 Miss. 304; Long v. State, 163 Miss. 535, 141 So. 591." In compliance with the well recognized and a well established rule in this Court, we cannot consider this assignment of error. See Carter v. State, 167 Miss. 331, 145 So. 739; Magee v. State, 154 Miss. 671, 122 So. 766, and authorities therein cited.
We find no reversible error in this record.
Affirmed.