Opinion
No. 31884.
November 4, 1935.
CRIMINAL LAW.
Where in murder prosecution neither state nor defense requested manslaughter instruction, trial judge's statement, made in response to juror's statement that verdict might be reached if sentence lighter than life could be imposed, that Supreme Court had held that jury might render verdict of manslaughter held reversible error (Code 1930, section 586).
APPEAL from the circuit court of Attala county; HON. J.F. ALLEN, Judge.
Guyton Thornton, of Kosciusko, and J. Wesley Miller, of Ackerman, for appellant.
The instruction given is error because it was oral.
The judge in any cause, civil or criminal, shall not sum up or comment on the testimony, or charge the jury as to the weight of evidence; but at the request of either party he shall instruct the jury upon the principles of law applicable to the case. All instructions asked by either party must be in writing, and all alterations or modification of instructions given by the court or refused shall be in writing, and those given may be taken out by the jury on its retirement.
Section 586, Code of 1930; Gilbert v. State, 78 Miss. 300, 29 So. 477; Stewart v. State, 50 Miss. 587; Archer v. Sinclair, 49 Miss. 343; Conterberry et al. v. State, 90 Miss. 279, 43 So. 678; Edwards v. City of Gulfport, 95 Miss. 148, 49 So. 620; James v. State, 106 Miss. 353, 63 So. 669; Dixon v. State, 106 Miss. 697, 64 So. 468; Simmons v. State, 107 Miss. 463, 65 So. 511; Davenport v. State, 121 Miss. 548, 83 So. 738; Masonite Corporation v. Lockridge, 163 Miss. 364, 141 So. 758.
Under our statutes the circuit judge cannot give instructions unless requested in writing by the parties or some of them.
Cosey v. State, 161 Miss. 747, 138 So. 344.
This instruction is error for the further reason that it was given after the argument of counsel and after the case was submitted to the jury.
Montgomery v. State, 85 Miss. 330, 37 So. 835; Boykin v. State, 86 Miss. 481, 38 So. 725; King v. State, 121 Miss. 230, 83 So. 164; Davenport v. State, 121 Miss. 548, 83 So. 738. W.D. Conn, Jr., Assistant Attorney-General, for the state.
In Gilbert v. State, 78 Miss. 300, 29 So. 477, an almost identical situation was considered by the court and in that case the jury had been deliberating about an hour when it returned in open court and one of the jurors stated to the court that "we wish to have some further instructions. Have we the right to convict the defendant of manslaughter?" The statement of the case, preceding the opinion, then sets out "and the court answered orally of its own motion, without request from the district attorney or the defendant, or his counsel: `It is within your power to do so.'" The defendant objected to this "oral instruction" of the court. On appeal of that case the objection to the oral instruction was the fourth assignment of error. The court stated that the first and fourth assignments of error were well taken, but observed in a very short opinion: "We would not reverse for the first, but the second error (fourth assignment) is fatal."
Section 732, Code of 1892; Edwards v. State, 47 Miss. 581; Stewart v. State, 50 Miss. 587; Bang v. State, 61 Miss. 363; Watkins v. State, 60 Miss. 323; Williams v. State, 32 Miss. 389; Simmons v. State, 107 Miss. 463, 65 So. 511.
On an indictment for murder appellant was convicted of manslaughter and sentenced to serve a term of seven years in the state penitentiary.
It is unnecessary to state the facts of the case; suffice it to say that the testimony of the state witnesses tended to make out a case of murder, that of the appellant's witnesses self-defense; an altercation having arisen on the premises of the appellant.
Neither the state nor the defense requested a manslaughter instruction. After the jury had retired to consider their verdict and had not reported for about eighteen hours, it was called into the courtroom by the trial judge and asked if it had reached a verdict in the case. One of the jurors, in response to this question, replied, "Some of the members of the jury are not willing to impose a life sentence and we would like to know if we can place on a lighter sentence, and if so I think we can reach a verdict." Thereupon, the trial judge made the following statement: "I cannot say anything except that the Supreme Court of Mississippi has held that you might render a verdict of manslaughter if that is your verdict." This question and answer was promptly objected to by the defendant, was overruled by the trial judge, and a bill of exceptions thereto duly taken and signed by the judge. This oral instruction given by the judge to the jury is forbidden by section 586, Code of 1930, and is fatal error and must cause the reversal of this case. See Simmons v. State, 107 Miss. 463, 65 So. 511; Gilbert v. State, 78 Miss. 300, 29 So. 477; Edwards v. State, 47 Miss. 581; Stewart v. State, 50 Miss. 587; Bangs v. State, 61 Miss. 363; Watkins v. State, 60 Miss. 323, and Williams v. State, 32 Miss. 389, 66 Am. Dec. 615.
The case at bar cannot be differentiated from the case of Gilbert v. State, supra.
Reversed and remanded.