Summary
In Woodward v. State, 166 Miss. 596, 143 So. 859, 860 (1932), this Court affirmed a coconspirator's murder conviction, where a shopkeeper was robbed and killed "in the night-time in a store owned by him, and adjoining which was a bedroom occupied by him."
Summary of this case from Christian v. StateOpinion
No. 30090.
October 17, 1932.
1. HOMICIDE. In prosecution for murder committed during robbery of store, instruction regarding conspiracy to commit felony, if erroneous as authorizing conviction of murder of absent coconspirator when conspiracy was merely to commit larceny, held harmless.
Instruction in substance that where two or more persons conspire to commit felony and afterwards, while acting in pursuance of conspiracy and engaged in commission of felony, one or more of such persons commit murder, then all conspirators are guilty of murder, was harmless because evidence warranted jury's finding that coconspirators had agreed to larceny of small store building knowing that proprietor was present, and that it was possible that proprietor would hear noise and try to intercept persons present in commission of felony.
2. HOMICIDE.
Coconspirators are equally guilty of murder directly resulting from discovery and resistance to crime being committed as originally planned, although murder, as part of it, had not actually been agreed upon, and had not been considered.
APPEAL from Circuit Court of Humphreys County.
H.F. Jones, of Belzoni, for appellant.
In all cases of a felony an indictment is jurisdictional, and without an indictment no one may be prosecuted under section 27 of the Constitution for a felony.
State v. Sansome, 133 Miss. 428, 97 So. 753; Pruitt v. State, 139 So. 861.
Criminal conspiracy between the defendant, Robert Woodward, and Will Dixon was not proven by any testimony, not even by that of Will Dixon. He, on the contrary, specifically denies any conspiracy, for any purpose.
Conspiracies may, indeed, be proven by circumstances, but what circumstance is there in this case proving a conspiracy to either commit a homicide, or to commit any other offense. There is only one circumstance remotely connecting this defendant with the killing, and that is the possession of a small portion of the money.
In commenting upon the seventh assignment of error, attorney for the State states: "Appellant charges that this indictment was drawn under section 985-c, Code of 1930." Not so, it is stated that instruction embodying the principle that where two or more conspire together to commit a felony, and afterwards in pursuance of the commission of such felony, one of them commits a murder, all of the conspirators are equally guilty. It was stated in the brief for appellant that this instruction, not the indictment, was based or attempted to be based upon section 985-c, Code of 1930.
In asking of this instruction was evidently an afterthought of attorney for the state, in view of the unstable character of the testimony of Will Dixon. The principle is based on nothing disclosed by the evidence in this case, either direct or circumstantial.
In the face of all of these circumstances and proven facts, it was necessary to invoke a theory, discrediting the testimony of Will Dixon, and acknowledging that Dixon struck the mortal blows, yet, under a previous conspiracy, fixing reflected guilt upon the defendant, even though he did not do the actual murder, and thus the instruction "that where two or more persons conspire to commit a felony and afterwards while acting together in pursuance of such conspiracy, and while engaged in the commission of such felony, one or more such persons commits a murder, then all of such conspirators are guilty of murder, regardless of which one actually struck the blow which produced death." The theory embraced in this instruction is that Will Dixon actually killed Rustici, by clear inference, and that defendant was present, pursuant to a previous conspiracy, or understanding between Dixon and the defendant. There is not a syllable in this record of direct testimony disclosing a conspiracy. Attorney for the state says, "conspiracy may be shown by circumstances." Where is the circumstance, proven in this record, showing a conspiracy, to kill, to rob, to burglarize, to rape, to commit a felony, if you please?
I cannot think that the case is one where the evidence is so conclusive as that material error can be disregarded as in the Wexler case and the Comings case referred to by appellee in brief.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
This court has held that the presumption of malice that arises from the deliberate use of a deadly weapon is improper in a case where all the circumstances surrounding the killing were shown by eye-witnesses, but I submit that this is one of those cases where the presumption of malice may be indulged in, and that this assault upon Rustici was murderous and done with the deliberate design to effect his death.
Winchester case, 142 So. 454.
A conspiracy may be shown both by direct and circumstantial evidence.
Eaton case, 140 So. 729.
If the evidence of the state is to be believed, and the jury has said by their verdict that they do believe it, a conspiracy was on between them, and therefore, regardless of which one of them actually did the killing, both are equally guilty in the eyes of the law. So that, upon the question of whether or not the instruction correctly states the law, I submit that it does and is in line with all of our cases dealing with conspiracy.
Appellant was jointly indicted with Will Dixon for the murder of Joe Rustici. There was a severance, and on their separate trials each of the accused was convicted. Reference is made to the opinion of the court in the Dixon Case (Miss.), 143 So. 855, this day delivered.
There are ten assignments of error in the instant case, one of which deals with the following instruction granted at the request of the state: "The court instructs the jury that where two or more persons conspire together to commit a felony and afterwards while acting together in pursuance of such conspiracy and while engaged in the commission of such felony, one or more of such persons commits a murder, then all of such conspirators are guilty of murder, regardless of which one actually struck the blow which produced death."
The deceased was murdered in the nighttime in a store owned by him, and adjoining which was a bedroom occupied by him. The conviction of appellant is supported by evidence which would be sufficient to base the verdict on either one of the following theories: (1) That the appellant and Will Dixon entered the store at night, as aforesaid, for the purpose of larceny, and while thus engaged they were surprised by the entry into the store of the deceased, who threw a flash-light upon the parties, and that thereupon the appellant beat the deceased to death with an iron twine stand which was a part of the store equipment. We think under all the evidence the theory just stated is improbable. (2) That in the same situation as above stated Will Dixon did the killing, appellant being actually present. (3) That appellant, who was an employee at the store, and who was present at the time the store was closed at ten o'clock, did by a prearranged plan with Dixon leave the back door open, so that Dixon could enter noiselessly, as it was calculated, and that appellant thereafter kept watch at the front of the premises; but that Dixon, who entered the store, did not succeed in doing so without noise, and that the deceased, hearing the noise in the store, went from his bedroom to the store room adjoining, and having, by the aid of a flash-light, discovered the said Dixon, the latter murdered the deceased in the manner above mentioned. (4) That by the said prearranged plan appellant left the back door open, and appellant thereupon departed, and was not within the immediate neighborhood of the store at the time of the entry and killing by Dixon, and that the conspirators met some hour or two after the homicide and divided the money at a point remote from the store.
As we understand the contention of appellant, it is that because, under the evidence, one of the reasonable theories which the jury could and, so far as we know, did accept, was that the conspiracy between the two accused persons was as last stated under numeral 4, the quoted instruction is erroneous in that it authorized the conviction of murder of a coconspirator who was absent, when the conspiracy was of no more than to commit larceny, and that this was not a conspiracy, the natural probabilities of which would lead to a homicide. Appellant cites the case of Huggins v. State, 149 Miss. 280, 115 So. 213, and cites also the text, Wharton on Homicide (3 Ed.), p. 658, to the effect that: "Where an unlawful act agreed to be done by co-conspirators, however, is not of a dangerous or homicidal character, and its accomplishment does not necessarily or probably require the use of force or violence which may result in the unlawful taking of human life, criminal liability for such taking of life by one of them will not attach to another from the mere fact of his having been a party to the agreement." See, also, 13 R.C.L., p. 731; 29 C.J. pp. 1072, 1075.
The contention made by appellant has been most carefully considered in the light of all the authorities as applied to the record before us, and it is our conclusion that, admitting for the sake of the argument, but not deciding, that the quoted instruction is erroneous as a general proposition, the same is not reversible in this case, because if the verdict was based on the theory of a conspiracy the least that could have been considered by the jury in that respect was that the coconspirators had agreed to a larceny of a small store building in the adjoining room to which it was known by them that the proprietor of the store was present, and that it was more than remotely possible, even if we are not to say probable, that the said proprietor would hear the noise which would likely be made in working at such a crime in the dark, and would at once go into the store to search for the cause of the noise, and would intercept any persons there present in the commission of the larceny. In such a situation the great weight of authority is to the effect that the coconspirators are equally guilty of the murder which directly results from the discovery and the resistance to the crime being committed as originally planned, although the murder, as a part of it, had not been actually agreed upon, and had not, in fact, been taken into consideration.
We have examined the other assignments of error, and find that as applied to this record none of said assignments are well grounded.
The judgment and sentence will be affirmed, and Friday, November 18, 1932, is fixed as the day of execution.
Affirmed.