Opinion
No. 34707.
November 24, 1941.
1. HOMICIDE.
In prosecution of father and son for assault and battery with intent to kill, instruction that if jury found son guilty as charged and found that father was present aiding and abetting, and commanding those present to stand back during the assault, it was jury's duty to find both father and son guilty, was improper as giving impression that "commanding those present to stand back during the assault" was sufficient to constitute guilt, since the word "commanding" was too indefinite to form the basis of a conviction for aiding and abetting.
2. HOMICIDE.
In prosecution of father and son for assault and battery with intent to kill, where evidence showed that father commanded other persons present to stand back during assault, an instruction that if jury believed that father and son or either of them was guilty, jury would be authorized to find them both guilty, was erroneous as charging in effect that aiders and abettors in the commission of a crime could be guilty and the principal innocent.
3. CRIMINAL LAW.
In prosecution of father and son for assault and battery with intent to kill, an instruction that if jury believed that father and son or either of them was guilty they would be authorized to find both guilty, and instruction that if evidence showed guilt of one of them beyond a reasonable doubt and failed to show guilt of the other beyond a reasonable doubt, jury should convict the former and acquit the latter, were irreconcilably conflicting.
APPEAL from the circuit court of Walthall county, HON. J.F. GUYNES, Judge.
Kelly J. Hammond, of Columbia, for appellants.
The court committed reversible error in the giving of Instruction No. 1 asked for by the State and given by the court. Instruction No. 1 tells the jury "If you further believe from all evidence in this case beyond a reasonable doubt that the defendant, Carlie Burnett, was present at the time and place aiding, assisting, and abetting therein and commanding those present to stand back during the assault . . . then both defendants . . . are guilty as charged." We submit first that taking all of the State's testimony as true, all that Carlie Burnett did was to tell the W.P.A. workers to "stand back" and after two or three licks had passed to tell James Burnett to stop and get up, and he did and the fight was over. Since this was all Carlie Burnett did towards aiding, assisting and abetting, this instruction tells the jury that if Carlie Burnett commanded the crowd to stand back, he is guilty as charged. This is clearly reversible error and was highly prejudicial to Carlie Burnett's case.
What would any father do if he saw his son and the foreman of the W.P.A. in a fight and some eight or ten W.P.A. workers should go rushing up to the place of the fight. Carlie Burnett did not know but that these W.P.A. workers might do his son some bodily harm in aid and assistance to their foreman.
The court erred in the giving of Instruction No. 2 asked for by the State and given by the court. The instruction as given follows here: "The court instructs the jury for the State that you do not have to know that the defendants are guilty before you can convict them, but that in order for you to be warranted in returning a verdict of guilty in this case, it is only necessary that you believe from all the evidence in this case beyond a reasonable doubt that the defendants are guilty, or either of them." This instruction tells the jury that if they believe either of the defendants guilty they should find them both guilty. There would have been no error in the instruction if the last four words were not added to it — "or either of them."
All through the instructions appellants are referred to as the defendants, and of course if the jury believed that the defendants were guilty they should convict them both, but when he added the last four words, "or either of them," the jury was warranted in believing that the court meant if either were guilty they were warranted in returning a verdict of guilty as to both of them.
The court erred in the giving of Instruction No. 3 asked for by the State and given by the court. It is clearly error to tell the jury in this case that they can convict Carlie Burnett and acquit James Burnett.
Greek L. Rice, Attorney-General, by R.O. Arrington, Assistant Attorney-General, for appellee.
The first instruction informs the jury that if they believe from all the evidence in the case beyond a reasonable doubt and to the exclusion of every reasonable hypothesis . . . that the defendants are guilty, then that it is their duty to so find. This instruction clearly states the law and is warranted by the evidence in the case. The appellants' criticism of the instruction is that it tells the jury: "and if you further believe from all evidence in this case beyond a reasonable doubt that the defendant, Carlie Burnett, was present at the time and place aiding, assisting, and abetting therein and commanding those present to stand back during the assault . . ., then both defendants are guilty." This instruction follows the evidence and the law. "Each person present consenting to the commission of the offense and doing any act which is an ingredient in the crime, or immediately connected with it, or leading to its commission, is as much a principal as if he had with his own hand committed the whole offense." Wharton on Homicide (3 Ed.), p. 49, approved in McCoy v. State, 91 Miss. 257, 44 So. 814; Hardy v. State, 180 Miss. 336, at page 341; Ashley v. State, 166 Miss. 11, 147 So. 879; Gibbs v. State, 167 Miss. 598, 149 So. 796.
Instruction number two, although awkwardly drawn, could have not misled the jury because it was followed by the instruction referred to as number three, which reads as follows: "The court instructs the jury for the state that if you believe from all the evidence in this case beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis that one of the defendants is guilty and the other is not guilty, then you should convict the one you so believe is guilty and acquit the other." This is followed by instruction referred to as number four which informed the jury as to the kind of verdict they could return. Considering all of the instructions together, it is obvious that the jury was not misled by them or that the rights of the defendants were prejudiced in any manner.
Argued orally by Kelly Hammond, for appellant, and by R.O. Arrington, for appellee.
Appellants, Carlie Burnett and James Burnett, father and son, the father about fifty years of age, and the son in his early twenties, were indicted, tried and convicted in the circuit court of Walthall County of the crime of assault and battery on one Johnnie Gulledge with intent to kill and murder. The son was sentenced to the penitentiary for the term of two years, and the father for the term of one year. Appellants were tried without counsel. They were unable to employ counsel for reasons unnecessary to state. Appellants requested no instruction, nor made a motion for a new trial. We reverse the judgment because of erroneous and misleading instructions given for the state. We notice no other errors assigned, because, if errors, they are such as in all probability will not be repeated on another trial.
The evidence made the following case: The son, James Burnett, was employed on a W.P.A. Highway Project. His immediate foreman was the person assaulted, Johnnie Gulledge, the latter's superior in authority was one Walker. Gulledge had discharged the son. On the day of the alleged crime the father and son went to the place where the road work was going on with the view of trying to induce Gulledge and Walker to re-employ the son. They found Gulledge and during the interview with him there arose an altercation between him and the son resulting in a fight during which the son, the aggressor, used as a weapon a one-blade closed knife, in other words, the knife handle alone. With this weapon he inflicted severe wounds on Gulledge. He broke the skin in several places on his neck and face and other parts of his body, causing the blood to flow. His injuries necessitated his spending several days in a hospital for care and treatment. While the fight was in progress the father stood nearby watching it. Other road workers saw it and approached the scene. The father, apprehending that some of them might interfere, commanded them "to stand back." There was some evidence to the effect that at the time he put his hand about his person in a manner indicating that he was prepared to enforce his command with some kind of a weapon which he had concealed. The evidence tended to show that after the son had gotten the best of the fight and had seriously wounded Gulledge the father suggested that he desist, which he did.
In one instruction the court directed the jury that if they believed from the evidence beyond a reasonable doubt that the son was guilty as charged and that the father was "present at the time and place, aiding, assisting, and abetting therein and commanding those present to stand back during the assault, and if you so believe beyond a reasonable doubt, then both defendants, James Burnett and Carlie Burnett, are guilty as charged in the indictment and it is your duty to so find." The trouble about the instruction is the language "commanding those present to stand back during the assault." The connection in which it was used was calculated to give the jury the impression that it alone was sufficient to constitute guilt. The meaning of the word "command" is too indefinite and uncertain to base his conviction on. It might have been prompted by the fear that some of the other workers present might join in the fight against his son.
By another instruction the court told the jury that if they believed from the evidence beyond a reasonable doubt that the defendants or either of them was guilty they would be authorized to find both of them guilty. In other words, aiders and abettors in the commission of a crime could be guilty and the principal innocent. It will be seen at once that under the law this could not be. There can be no such thing as aiding and abetting in a crime when no crime has been committed. And by still another instruction the court told the jury that if the evidence showed the guilt of one of the defendants beyond a reasonable doubt and failed to show the guilt of the other beyond a reasonable doubt they should convict the former and acquit the latter. It will be seen at once that those two instructions are irreconcilably conflicting.
Reversed and remanded.