Opinion
No. 32336.
October 12, 1936.
1. HOMICIDE.
Evidence held sufficient to sustain conviction of husband for murder of wife.
2. CRIMINAL LAW.
Where no bill of exceptions was taken signed by two attorneys on refusal of trial judge to sign bill of exceptions, there was no ground for reversal, since statute providing that two attorneys present at time may sign bill of exceptions where judge refuses to do so provides only remedy (Code 1930, sec. 590).
3. CRIMINAL LAW.
Instructions must be read and considered together.
4. HOMICIDE.
In murder prosecution, instruction that malice may be formed within a moment's time held not erroneous for failure to use words "malice aforethought," when read with other instructions.
APPEAL from the circuit court of Lafayette county. HON. T.H. McELROY, Judge.
J.W.T. Falkner, C.A. Bratton and Samuel V. Pack, all of Oxford, for appellant.
There is one question, and one only, in dispute between appellant and the state. Under the proved facts and appellant's theory of the case, it is admitted that appellant killed his wife. The sole question is whether he killed her with deliberate design. If so, appellant is guilty of murder; if not, the inescapable conclusion is that the death was accidental and there was no murder.
Deliberate design or premeditated design is meant by the use of the term "malice aforethought." But the fourth instruction for the state did not employ the term "malice aforethought." That instruction charged the jury that "malice" is a necessary ingredient of the crime of murder, and that "malice" may be suddenly formed. If the mere word "malice" be used without the qualifying term "aforethought" is the meaning synonymous with, or equivalent to, deliberate design so as to be a correct statement of the mental constituent necessary to constitute the crime of murder?
This question is not new. Those courts which have had occasion to consider it have answered it in the negative, as a matter of our common law.
State v. Curtis, 70 Mo. 594; State v. Green, 42 La. Ann. 644, 7 So. 793; Tutt v. Commonwealth, 104 Ky. 299, 46 S.W. 675.
Does Mississippi adhere to this established rule of the common law that malice, rather than malice aforethought, does not constitute such intent as to justify conviction for murder? This honorable court has held that Mississippi does adhere to the rule above stated.
Brett v. State, 94 Miss. 669, 47 So. 781.
The force and reasoning of this honorable court in Brett v. State, supra, has, in comparatively recent years, impressed itself upon the law of a sister state.
State v. Robinson, 143 La. 543, 78 So. 933.
It is a fundamental rule of procedure that instruction of a jury on an abstract principle of law which is not applicable to the evidence is erroneous, no matter how accurate and correct the instruction may be as abstract proposition. This honorable court has repeatedly reversed judgments because that rule was transgressed.
Brown v. State, 149 Miss. 239, 115 So. 433; Rogers v. State, 82 Miss. 479, 34 So. 320; Gerdine v. State, 64 Miss. 798, 2 So. 313; Boyd v. State, 84 Miss. 414, 36 So. 525; Cryer v. State, 71 Miss. 467, 14 So. 261, 42 A.S.R. 473; Maury v. State, 68 Miss. 605, 9 So. 445, 24 A.S.R. 291; Wheeler v. State, 76 Miss. 265, 24 So. 310; Oliver v. State, 39 Miss. 526; Johnson v. State, 86 So. 853, 124 Miss. 429; Cothran v. State, 39 Miss. 541; Frank v. State, 39 Miss. 705.
For the reasons that the instruction used the term "malice" instead of "malice aforethought," and charged the jury that the necessary malice may be formed instantly, when there was no evidence to support such charge, it is clear under the decisions of this honorable court that the fourth instruction was erroneous.
McDonald v. State, 78 Miss. 369, 29 So. 171; Gerdine v. State, 64 Miss. 798, 2 So. 313. Webb M. Mize, Assistant Attorney General, for the state.
The fourth instruction was not erroneous. This instruction is as follows: "The court charges the jury for the state that while malice is necessary ingredient to the crime of murder yet it does not necessarily take years, months, weeks, days, hours or even minutes to form said malice but malice may be formed within a moment's time."
This instruction merely tells the court that while malice is a necessary ingredient to the crime of murder that it does not take any particular period of time for same to be formed. The law is well settled in this state to the effect that malice may be suddenly formed and that no particular time of deliberation is required for its formation.
Motley v. Smith, 172 Miss. 148, 159 So. 553; Williams v. State, 163 Miss. 475, 142 So. 471; Dye v. State, 127 Miss. 492, 90 So. 180.
Instruction No. 1 for the state defines the crime of murder and says that murder has to be done with "deliberate design to effect the death of the person killed." Therefore, Instruction No. 1, for the state gives the definition of murder and Instruction No. four, the one complained of here clarifies what is meant by deliberate design and the instructions must be read together as if they were one instruction. Where all the instructions in a case read together correctly state the controlling principles of law applicable to the case, there is no error committed and the Supreme Court will not reverse on the instructions.
Upton v. State, 143 Miss. 1, 108 Miss. 287; Cummins v. State, 144 Miss, 634, 110 So. 206; Bailey v. State, 174 Miss. 453, 165 So. 122; Williams v. State, 160 Miss. 485, 135 So. 210; Ivey v. State, 154 Miss. 60, 119 So. 507; Norris v. State, 153 Miss. 365, 108 So. 809.
The verdict was not contrary to the law and evidence.
A verdict on conflicting evidence will stand on appeal.
Kelly v. State, 158 Miss. 808, 131 So. 272; Evans v. State, 159 Miss. 561, 132 So. 563.
Argued orally by C.A. Bratton, for appellant, and by Webb M. Mize, for the state.
Appellant, J.E. Tatum, was indicted at the September, 1935, term of the Lafayette county circuit court for the murder of his wife, Mrs. Vivian Cooper Tatum; was convicted and given a life sentence in the state penitentiary, from which this appeal is prosecuted.
It appears that this killing occurred on September 9, 1931.
It was the theory of the state that the appellant and his wife returned from a visit late in the afternoon of that day and that the appellant drove his car up to the back porch of his home, this being his custom in order that he might step conveniently from the running board to the porch. His wife got out of the car and started into the house. Appellant took out of the car a shotgun, and holding this, he placed his artificial foot upon the running board and started out of the car. The gun was fired by the appellant from this position, striking his wife beneath the left shoulder blade, the shot then ranged upward and lodged in the left side of the right breast, producing a bulging, as one witness described it, like a "chicken crop."
The state produced two eyewitnesses who claimed to have witnessed the killing, and they testified that the appellant pointed the gun at his wife; that, at first, it snapped and did not go off; that his wife cried out, "Oh Jesse;" that the appellant fired and his wife fell; that the appellant then ran out in the yard and began to beat the gun on the ground, and called a neighbor, stating that his wife was shot.
There was other testimony tending to show family trouble and a motive for the killing, the details of which are not necessary to be set out.
There was also introduced a witness who testified that she overheard an angry conversation between appellant and his wife regarding the presence in their home of a Memphis woman whom appellant had employed as a farm hand. There was a statement by another witness to the effect that, some time after the killing, in a rooming house in Memphis, the appellant stated to a woman, with whom he was staying for the night, that he killed his wife for the insurance; and, on the return trip from Memphis, both being intoxicated, the appellant more so than the witness, the appellant was driving the car and it began to wobble along on the highway; the witness took the steering wheel and took out the key, and the appellant told him that if he did not put the key back, he (the appellant) would do him like he did his wife, that the gun snapped in her case the first time, but that it would not snap in the witness' case, or words to that import.
It was the theory of the appellant that the gun was accidentally discharged. He stated that he stepped on the fender with his artificial left foot, stumbled and fell, and the gun struck the post which discharged it. He introduced witnesses who supported him to the extent that they saw signs on the post, and there were contradictions of various witnesses for the state, and conflict in the evidence.
It also appeared in the evidence that a body purporting to be a coroner's jury, not sworn, returned a verdict, that the crime was an accidental killing.
We do not deem it necessary to set forth, at length the varying testimony, nor the full details, but it will be sufficient to say that we have carefully examined the evidence, and have reached the conclusion that it is ample to sustain the verdict of guilty.
It is stated in the record that "During the opening argument for the state, counsel for the defendant passed up to the court the following written objection to said argument made by county attorney, Bramlett Roberts: `Do you believe you would have been off up there on a drunk in a room house?'"
"Counsel for the defendant passed to the court the following written objection to the opening argument of county attorney, Bramlett Roberts, for the state: `If you want to go out there and turn loose a fiendish, cold-blooded murder, then I say, destroy your court house.'"
"By the court: The exceptions filed by counsel for the defendant to the supposed statements by county attorney Bramlett Roberts in his opening argument, and in which exception counsel for the defendant attempts to quote the argument of attorney Bramlett Roberts, was not so understood by the court to be the language used by county attorney Bramlett Roberts in his opening argument, and therefore, because of that fact, overruled the said objections and exceptions."
No bill of exceptions was taken signed by two attorneys, but on the motion for a new trial, the appellant's attorney assigned as a ground therefor the above-quoted language, and offered to produce witnesses to support same. The motion for a new trial was overruled.
Section 590, Code 1930, provides that if the judge refuses to sign a bill of exceptions, it shall be lawful for two attorneys present at the time to sign same, and when so signed the bill of exceptions shall have the same force and effect as if signed by the judge. It was held in the case of Dreyfus v. Cage, 62 Miss. 605, that this statute provides the only remedy where the judge refuses to sign a bill of exceptions.
It follows, therefore, that there is no ground for reversal on the error complained of in that regard.
The appellant also complains of the following instruction for the state: "The court charges the jury for the state that while malice is necessary ingredient to the crime of murder, yet it does not necessarily take years, months, weeks, days, hours, or even minutes, to form said malice, but malice may be formed within a moment's time." It is complained that this instruction does not use the words "malice aforethought," and that the court has made a distinction, in former cases, between "malice" and "malice aforethought." The state procured an instruction defining murder as the "killing of a human being without authority of law, when done by any means, or in any manner, with the deliberate design to effect the death of the person killed." This instruction concluded with these words, "And if the jury believe, from the evidence, beyond a reasonable doubt, that the defendant, at the time and place as alleged in the indictment, so killed the deceased, then he is guilty as charged, and you may return into court either of the following verdicts," setting forth the three forms as required by the statute.
The instruction complained of was not a definition of malice, or what was essential to constitute murder. This had already been defined by another instruction, and the rule is that all instructions are to be read and considered together. So, reading the instruction complained of in connection with the one defining murder, the jury must clearly have understood it was a deliberate design, which has been held, in numerous cases, to be equivalent to malice aforethought.
We are, therefore, of the opinion that there was no error committed in the trial court, and that its judgment should be affirmed.
Affirmed.