Summary
In Coleman v. State, 218 Miss. 246, 67 So.2d 304 (1953), we held that the defendant could not be guilty of a crime more than manslaughter.
Summary of this case from Wells v. StateOpinion
No. 38797.
October 12, 1953.
1. Homicide — manslaughter — unnecessarily killing while resisting attempted unlawful act.
Where according to State's evidence town marshal without placing defendant under arrest told defendant to get out of town and put his hand on defendant's back and kneed or bumped him, and at which time defendant turned and stabbed marshal inflicting wound from which marshal died, marshal, in so assaulting defendant, was committing an "unlawful act," within statute providing that every person who shall unnecessarily kill another while resisting an attempt by such person to do any unlawful act shall be guilty of manslaughter, and submission of case to jury on issue of murder was erroneous. Sec. 2225, Code 1942.
2. Criminal law — trial — photograph of deceased irrelevant.
In murder prosecution, photograph of deceased was not relevant and of no value to jury, and should not have been admitted.
Headnotes as approved by Arrington, J.
APPEAL from the circuit court of Sunflower County; ARTHUR JORDAN, Judge.
Allen Allen, Indianola, for appellant.
I. The killing amounted to nothing more than manslaughter, and it was the duty of the court below to limit the case to manslaughter; thus when the court below granted murder instructions when only manslaughter was authorized, it committed reversible error. Secs. 2225, 2226, Code 1942; Staiger v. State, 110 Miss. 557, 70 So. 690; Taylor v. State, 188 Miss. 166, 194 So. 589; Shedd v. State, 203 Miss. 544, 33 So.2d 816; Bangren v. State, 196 Miss. 887, 17 So.2d 599; Anderson v. State, 199 Miss. 885, 25 So.2d 474; Cutrer v. State, 207 Miss. 806, 43 So.2d 385; Walker v. State, 188 Miss. 177, 189 So. 804; Jones v. State, 170 Miss. 581, 155 So. 430; Bergman v. State, 160 Miss. 65, 133 So. 208; Martin v. State, 112 Miss. 365, 73 So. 64; Williams v. State, 127 Miss. 851, 90 So. 705; Cryer v. State, 71 Miss. 467, 14 So. 261; Alexander's Miss. Jury Instructions, Sec. 2508; Bell v. State, 42 So.2d 728; Fletcher v. State, 129 Miss. 207, 91 So. 338; 4 Am. Jur., pp. 137-138; Craft v. State, 30 So.2d 414; Morgan v. Loyacomo, 1 So.2d 510, 511; Roney v. State, 153 Miss. 290, 120 So. 445, 447; Matthews v. State, 148 Miss. 696, 114 So. 816.
II. The pictures of the dead man introduced in evidence served no other purpose than to inflame the minds of a white jury against the defendant. The generous use of the word "negro" both by the witnesses and by the district attorney and special attorney employed to prosecute, throughout the case and in the argument, was highly prejudicial as injecting the race issue. Hardaway v. State, 99 Miss. 223, 54 So. 833; Collins v. State, 100 Miss. 435, 56 So. 527; Moseley v. State, 112 Miss. 854, 73 So. 791; Garner v. State, 120 Miss. 744, 83 So. 83; Funches v. State, 125 Miss. 140, 83 So. 487; Story v. State, 133 Miss. 476, 93 So. 806; Walton v. State, 147 Miss. 17, 112 So. 601; Herrin v. State, 201 Miss. 595, 29 So.2d 452-3.
Joe T. Patterson, Assistant Attorney General, Jackson, for appellee.
I. The appellant's guilt of murder or manslaughter was properly submitted to the jury under proper instructions. Woodward v. State, 139 Miss. 611, 94 So. 717; Anderson v. State, 199 Miss. 885, 25 So.2d 474.
II. The mere fact that the prosecuting attorneys in their argument referred to the defendant as "a negro," something that the jury already well knew, did not constitute an appeal to racial prejudice. Tubb v. State, 217 Miss. 741, 64 So.2d 911.
III. The photographs introduced by the State were pertinent, material, and relevant as evidence in this case. Hancock v. State, 209 Miss. 523, 47 So.2d 833.
Charlie Coleman was convicted in the Circuit Court of Sunflower County for the murder of J.W. Morgan, and sentenced to death. From this judgment he appeals.
The evidence on the part of the State shows that at approximately 11:30 on the night of April 19, 1952, J.W. Morgan, Marshal of the Town of Doddsville, in a raised voice, told Charlie Coleman to "get out of town"; that he put his hand on Coleman's back and kneed or bumped him, and at which time Coleman turned sidewise and struck him with a knife. The knife punctured the aorta and from this wound, Morgan died approximately thirty seconds thereafter. There was no proof on the part of the State that Coleman was under arrest. On the contrary, the force used by the deceased was for the purpose of requiring him to leave town.
The main assignment of error argued by the appellant is that the trial court erred in submitting the issue of murder to the jury and refusing appellant's requested instruction limiting the crime to manslaughter.
Section 2225, Miss. Code 1942, provides: "Every person who shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any unlawful act, or after such attempt shall have failed, shall be guilty of manslaughter."
(Hn 1) Under the facts in this case, the deceased was committing an unlawful act — an assault — upon the appellant, Coleman, at the time of the infliction of the mortal wound. We are of the opinion that the court erred in submitting the issue of murder to the jury and not limiting the crime to manslaughter, for it is clear that the killing comes within the purview of the above quoted statute as construed by this Court in many cases. Long v. State, 52 Miss. 23; Williams v. State, 122 Miss. 151, 84 So. 8; Williams v. State, 127 Miss. 851, 90 So. 705; Shedd v. State, 203 Miss. 544, 33 So.2d 816; and Cutrer v. State, 207 Miss. 806, 43 So.2d 385, and the authorities cited therein.
(Hn 2) With reference to the other assignments argued, we are of the opinion that the photograph of the deceased was not relevant and of no value to the jury, and should not have been admitted. Seals v. State, 208 Miss. 236, 44 So.2d 61; Hancock v. State, 209 Miss. 523, 47 So.2d 833; Price v. State, 54 So.2d 667 (Miss.). As to the argument of the district attorney and special prosecuting attorney, as set out in the special bill of exceptions, it is unnecessary to determine whether the argument employed constituted reversible error. However, those prosecuting criminal cases are admonished to refrain from the use of any language which could be calculated to engender race prejudice. The safe course is to refer to the accused as "the defendant."
For the reasons hereinabove set out, the judgment of the court below is reversed and the cause remanded for a new trial.
Reversed and remanded.
All Justices concur, except Hall, J., who took no part.