Opinion
No. 30980.
March 5, 1934.
1. CRIMINAL LAW.
Instruction stating correct abstract principle of law applicable to state's case is not objectionable, when governing principles of law are correctly stated to jury by other instructions.
2. CRIMINAL LAW.
Instruction, in substance, that person present at time and place crime is committed by another, and who unlawfully encourages and commands such other person to commit crime, is subject to indictment jointly with person who actually commits crime, held not objectionable as assuming that crime was committed and that defendant encouraged and aided in its commission.
3. CRIMINAL LAW.
Instruction, in substance, authorizing conviction of manslaughter if defendant, acting in conjunction with others, unlawfully killed named person, in heat of passion, without malice, by use of dangerous weapon, and not in necessary self-defense, held not objectionable as telling jury that defendant was guilty unless he acted in necessary self-defense.
4. HOMICIDE.
In homicide prosecution, instruction, in substance, authorizing conviction of manslaughter even though jury believed that deceased made threats against lives of defendants, held not objectionable.
5. HOMICIDE.
In homicide prosecution, instruction, in substance, authorizing conviction under indictment if jury believed that defendant, acting in conjunction with named persons, unlawfully, with malice aforethought, killed named person, held not objectionable as authorizing conviction without finding that person who actually killed deceased was guilty.
6. HOMICIDE.
In homicide prosecution, instruction, in part, authorizing conviction irrespective of whether deceased made threats against defendant's life, and regardless of deceased's treatment of his wife, held not objectionable.
7. HOMICIDE.
In homicide prosecution, instruction on self-defense, requiring defendant to have been in danger, real or apparent, held not erroneous.
8. CRIMINAL LAW.
Instructions for both state and defendant must be read together.
9. CRIMINAL LAW.
Minor errors in one or more instructions, if reconcilable when instructions for both state and defendant are read together, are harmless, if they make consistent whole and correctly state applicable principles of law.
APPEAL from Circuit Court of Marion County.
T.B. Davis and Robert Hall, both of Columbia, for appellant.
Assuming that the testimony of all the witnesses who sought to bring about this conviction be true, yet it is insufficient to make out a case against this appellant.
The following instruction is erroneous: "The court instructs the jury for the state that it is the law of this state that a person who is present at time and place where another commits a crime, and who wilfully, unlawfully, feloniously and of his malice aforethought encourages and commands such other person to commit such crime, is subject to indictment and conviction for such crime just the same and jointly with the person who actually commits such crime."
This instruction assumes that a crime has been committed and that this appellant encourage and commanded the commission of this crime.
Instruction No. 2 is erroneous in that it charges the jury that this appellant is guilty unless he acted in his necessary self-defense.
Instruction No. 3 is erroneous for several reasons; in the first place this instruction as well as other instructions for the state permit the jury to return a verdict of guilty against this defendant without first finding the principal Fred Carter guilty of the crime charged.
Harper v. State, 83 Miss. 402.
Again this instruction and other instructions granted the state tells the jury that they may convict this defendant even though the deceased made threats against the life of said defendant and regardless of what they may believe as to the treatment accorded the wife of the deceased by the deceased, in other words the court tells the jury that they need not consider the threats made by the deceased against the lives of the defendants. This instruction is very harmful.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
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 principle as if he had with his own hand committed the whole offense.
McCoy v. State, 91 Miss. 257, 44 So. 814; Kittrell v. State, 89 Miss. 666, 42 So. 609; Douglas v. State, 44 So. 817; Crawford v. State, 133 Miss. 147, 97 So. 534; Dedeaux v. State, 125 Miss. 326, 87 So. 664; Eaton v. State, 163 Miss. 130, 140 So. 729; Cody v. State, 148 So. 627.
Appellant was indicted for the murder of Robert McCain, and was convicted of the crime of manslaughter and sentenced to the penitentiary for a term of fifteen years. From that judgment he prosecutes this appeal.
Appellant and his two sons, Fred and Murray Carter, were jointly indicated for the murder of McCain. There was a severance as to appellant, but the two sons were tried jointly and convicted of manslaughter, and sentenced to the penitentiary for fifteen years. That judgment was affirmed by the Supreme Court in Carter et al. v. State, 145 So. 739. The killing was done by appellant's son Fred Carter, but the state's evidence showed that appellant and the other son, Murray Carter, were present aiding, abetting, and encouraging the homicide.
Appellant assigns and argues as error the action of the court in giving the following instructions for the state:
1. "The court instructs the jury for the state that it is the law of this state that a person who is present at the time and place where another commits a crime, and who wilfully, unlawfully, feloniously and of his malice aforethought encourages and commands such other person to commit such crime, is subject to indictment and conviction for such crime just the same and jointly with the person who actually commits such crime."
2. "The court instructs the jury for the state that if you believe from the evidence beyond a reasonable doubt that on the occasion in question, the defendant, J.W.V. Carter, acting in conjunction with Fred Carter and Murray Carter, did then and there wilfully, unlawfully and feloniously kill Robert McCain, a human being, in the heat of passion, without malice, by the use of a dangerous weapon, without authority of law, and not in necessary self defense, the jury should find the defendant, J.W.V. Carter, guilty of manslaughter, and this is true even though you may further believe from the evidence that the deceased, Robert McCain, made threats against the lives of the defendants."
3. "The court instructs the jury for the state that if you believe from the evidence beyond a reasonable doubt, that on the occasion in question, the defendant, J.W.V. Carter, acting in conjunction with Fred Carter and Murray Carter, did then and there wilfully, unlawfully, feloniously and of their malice aforethought kill and murder Robert McCain, a human being, the jury should find the defendant, J.W.V. Carter, guilty as charged in the indictment, and this is true even though you may further believe from the evidence that the deceased, Robert McCain, made threats against the lives of the said defendants, and regardless of what you may believe as to the treatment accorded the wife of the deceased by deceased."
4. "The court instructs the jury for the state that while it is true that under the law a man has a right to repel force with force even to the extent of shooting and killing his assailant in self defense, yet, before he may justify his act in so doing by such a plea of self defense, he must have good reason to believe, and he must honestly believe that he was then and there in danger, real or apparent, of being done great bodily harm or losing his life at the hands of such assailant, and such danger must appear to be imminent and impending; mere fear, apprehension or belief alone on the part of a defendant, that deceased meant to do him great bodily harm or to take his life, unaccompanied by an overt act, however sincerely entertained by such defendant, would not justify such defendant in shooting and killing deceased."
The criticism of the first instruction is that it assumed that a crime had been committed and that appellant encouraged and aided in its commission. It is not subject to that criticism. It states a correct principle of law in the abstract, and a principle applicable to the state's case. The giving of such an instruction is not error when the governing principles of law are concretely put to the jury by other instructions, and that was done in this case.
It is argued that instruction No. 2 was erroneous, because it told the jury that appellant was guilty unless he acted in necessary self-defense. The instruction does not so state. The jury knew from other instructions given in the case, especially one given for appellant which will be set out later, that by the phrase "not in necessary self defense" the court had reference to Fred Carter who did the killing, and that if Fred Carter did not kill in necessary self-defense, appellant would be guilty if he aided and abatted in the killing. Appellant criticized the instruction further because of the concluding clause, that the jury should find appellant guilty of manslaughter even though they believed from the evidence that McCain made "threats against the lives of the defendants." Evidence of threats were admitted, and properly so, to aid the jury in determining who the aggressor was — who brought on the difficulty. Appellant's defense was that his son Fred acted in self-defense. If he did so, appellant was entitled to the benefit of it. If he did not, appellant was as guilty as his son, if the state's evidence be true, and the jury believed it.
Appellant argues that instruction No. 3 was erroneous in the following respects: That it authorized the jury to return a verdict of guilty against appellant without first finding his son Fred Carter guilty; that it authorized the jury to convict even though the deceased made threats against the life of appellant, and regardless of what the evidence showed as to the treatment by deceased of his wife. The instruction is not subject to the first ground urged against it. It did not authorize the jury to find appellant guilty regardless of the guilt of his son Fred Carter. It was not error for the court to tell the jury that if they believe from the evidence beyond a reasonable doubt that appellant was guilty they should find him guilty regardless of threats by the deceased and regardless of how the deceased treated his wife.
It is argued that by instruction No. 4 the court told the jury that appellant had to be in danger, real or apparent, etc. This is another instruction stating an abstract and correct principle of law. As such, we think it is without fault. There was no attempt in the instruction to make a concrete application of it to the facts of the case. That was left to the jury, as it should have been.
We do not mean to say that the instructions are entirely without fault, but we do say that they were not calculated to mislead the jury; especially is that true when they are read in connection with the following instruction given for appellant: "The court instructs the jury that a man has a right to shoot his antagonist in his necessary self defense or in the necessary self defense of others and in this case if the jury believe from the evidence that when Fred Carter shot the deceased he had reason to believe and did honestly believe that he was about to receive great bodily harm or lose his life at the hands of deceased or that the deceased was about to take the life of Murray or Volley Carter or inflict upon them or either of them, great bodily harm and that such danger was apparent, imminent and impending at the time then the said Fred Carter had a right to shoot the deceased and take his life. That the burden of proof as to whether or not the said Fred Carter acted in his necessary self defense or in the necessary defenses of his father and brother is not on this defendant but such burden is upon the state to prove beyond every reasonable doubt and to a moral certainty that the said Fred Carter did not so act either in such defense of himself, father or brother."
All the instructions for both the state and appellant must be read together, and when so considered, if they make a consistent whole and correctly state the applicable principles of law, any minor errors in one or more of them, which are reconcilable, are harmless.
Affirmed.