Opinion
No. 35815.
November 12, 1945.
1. CRIMINAL LAW.
Supreme Court will not disturb verdict based upon conflicting testimony on appeal.
2. HOMICIDE.
An instruction that every killing of a human being without authority of law is either murder or manslaughter, and that it is murder when done with deliberate design to effect death of person killed, and manslaughter when done in heat of passion, without malice, and without any premeditation, was not erroneous, either on ground that it failed to correctly set out the law, or on ground that it deprived defendant of her plea of necessary self-defense.
3. HOMICIDE.
Evidence supported conviction of manslaughter.
APPEAL from the circuit court of Copiah county, HON. J.F. GUYNES, Judge.
J.H. Garth, of Hazlehurst, and H.C. Stringer, of Jackson, for appellant.
Assignment of error No. 1 challenges the validity of the second instruction granted the state. This instruction reads as follows, to-wit: "The Court instructs the jury for the State that every killing of a human being without the authority of law is either murder or manslaughter. Murder when done with the deliberate design to effect the death of the person killed, and manslaughter when done in the heat of passion, without malice and without any premeditation." The vice of this form of the manslaughter instruction is made to boldly appear when we compare it with the manslaughter definition as outlined by Code of 1942, Section 2226. This section reads as follows: "Homicide — killing with dangerous weapon in heat of passion. The killing of another in the heat of passion, without malice, by the use of a dangerous weapon, without authority of law and not in necessary self-defense, shall be manslaughter." This instruction is fatally defective, because it nowhere includes the expression "and not in necessary self-defense."
McNeal v. State, 115 Miss. 678, 76 So. 625.
An act meaningless when performed by one having no grudge or hatred to another may be fraught with deadly significance under other circumstances, and may be the overt act indicating a purpose to kill that will warrant a resort to means of self-defense by the party threatened.
Johnson v. State, 54 Miss. 430; Johnson v. State, 66 Miss. 189, 5 So. 95.
The verdict of the jury is against the weight of all the believable testimony.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
Where the testimony for the state in a criminal prosecution tends to establish murder, and that of the defendant tends to establish self-defense, but the several witnesses testifying contradict each other or give divergent views of what took place, a jury has a right to believe a portion of one's witness's testimony and reject another portion, and this is true of all witnesses, and where by so doing a possible finding of manslaughter is justified it cannot be said that the evidence does not support a conviction of manslaughter.
McMillan v. State, 198 Miss. 179, 21 So.2d 586; Triplett v. State, 159 Miss. 365, 132 So. 448; Woodward v. State, 180 Miss. 571, 178 So. 469.
Counsel for appellant contends that the court erred in granting the state the following instruction: "The Court instructs the jury for the State that every killing of a human being without the authority of law is either murder or manslaughter. Murder when done with the deliberate design to effect the death of the person killed and manslaughter when done in the heat of passion, without malice and without any premeditation." The criticism of counsel of this instruction is unwarranted as the instruction evidently worked to the benefit of appellant for it only distinguished between murder and manslaughter. Every killing of a human being without authority of law or unlawful killing would be murder or manslaughter. If the killing was in necessary self-defense, then it was justified under the law and was not an unlawful killing.
See Ransom et al. v. State, 149 Miss. 262, 115 So. 208.
Argued orally by H.C. Stringer, for appellant, and by R.O. Arrington, for appellee.
This appellant was indicted for murder of Onedia Green and convicted of manslaughter in the Circuit Court of Copiah County. The appellant is a colored woman, as was the deceased, and the controversy had its inception in a triangle involving the husband of deceased. The evidence on the part of the state and on the part of the appellant is sharply contradictory, and the witnesses offered by the defense in the trial court were contradictory of each other to some extent.
At the conclusion of the state's testimony, appellant moved to exclude it and direct a verdict of acquittal. At the conclusion of all the evidence on both sides, the appellant moved for a directed verdict. Both motions were denied. Appellant asked for an instruction to the jury to find her not guilty, which was refused. The jury found the defendant guilty, whereupon appellant moving for a new trial, which was overruled, and the case appealed here.
The errors assigned include all of the foregoing rulings by the trial court, and, in addition thereto, that the verdict of the jury is contrary to law and the overwhelming weight of the evidence. The granting of the following instruction to the state is also assigned as error:
"The Court instructs the jury for the State that every killing of a human being without the authority of law is either murder or manslaughter. Murder when done with the deliberate design to effect the death of the person killed, and manslaughter when done in the heat of passion, without malice and without any premeditation."
Since the verdict of the jury is based on conflicting testimony as to practically every incident and phase of the difficulty, and is not within or claimed to be within any of the exceptions to the rule, this Court will not disturb it on appeal. McMillan v. State, 198 Miss. 179, 21 So.2d 586, Triplett v. State, 159 Miss. 365, 132 So. 449; Woodward v. State, 180 Miss. 571, 177 So. 531, 178 So. 469, and other similar decisions of this Court. Therefore, the trial court committed no errors, in our judgment, in refusing to direct a verdict of acquittal, and in overruling the motion for a new trial, on the facts of the case.
The next error assigned is that the court should not have granted the state Instruction No. 2, supra. We have carefully considered this instruction and do not consider it error. Appellant cites, in support of her position, McNeal v. State, 115 Miss. 678, 76 So. 625, 629, a manslaughter case, which was reversed, in part on an instruction granted the state defining manslaughter:
"The court instructs the jury that if you believe from the evidence beyond a reasonable doubt that the defendant killed the deceased in the heat of passion, without malice, at a time when he was in no danger, real or apparent, of losing his life, or of receiving great bodily harm at the hands of the deceased, you will find him guilty of manslaughter, and the form of your verdict will be: `We, the jury, find the defendant guilty of manslaughter.'"
It will be noted, however, that the instruction in the McNeal case omitted therefrom the words "without authority of law." In the instruction in the case at bar those words are included, and the instruction correctly sets out the law, in our opinion. It is argued that this instruction deprives appellant of her plea of necessary self-defense. We do not think so; it defines homicide committed "without authority of law," while a homicide committed in necessary self-defense is within the authority of law and sanctioned thereby. Moreover, the court granted appellant several instructions on the law and the facts in detail, none of them inconsistent, but all of them in harmony with the instruction of which complaint is here made, and setting up the plea of necessary self-defense. We think that the court gave appellant's contentions, taking all the instructions together, a full and clear presentation to the jury, and that the evidence amply sustains the verdict.
The judgment of the trial court is affirmed.
Affirmed.