Opinion
No. 32060.
May 11, 1936.
1. COURTS.
Failure of clerk to enter order calling special term on the minutes does not oust court of jurisdiction to try cause (Code 1930, sec. 731).
2. COURTS.
Where minutes of term of court and convening order recited that term was a special term of circuit court, necessary jurisdictional fact that term of court which was convened on that date was a special term sufficiently appeared in convening order, and court was properly convened notwithstanding erroneous recital that court was convened on such date being the "time fixed by law for holding said court" (Code 1930, sec. 731).
3. CRIMINAL LAW.
In murder prosecution, where defendant was prosecuted in county of victim's death and not county where blows were inflicted, question of jurisdiction arising from claim that prosecution had been first begun in county in which blows were inflicted held for court (Code 1930, sec. 1187).
4. CRIMINAL LAW.
In murder prosecution, where victim dies in one county, from blows inflicted in another, lack of jurisdiction apparent on face of record arising from prior prosecution in county other than that in which trial is had can be raised at any time even on appeal.
5. CRIMINAL LAW.
In murder prosecution brought in county of victim's death, exclusion of oral evidence raising question for first time, that prior prosecution had been begun in county in which blows were inflicted, held not error, since mere oral testimony unsupported by record of former prosecution was not competent (Code 1930, sec. 1187).
6. HOMICIDE.
Presumption of malice which arises from killing of a human being with a deadly weapon will prevail and characterize act as murder unless evidence changes character of killing by showing either justification or necessity.
7. HOMICIDE.
In murder prosecution, where defendant was only eyewitness to homicide, whether killing was murder or justifiable homicide held for jury.
8. CRIMINAL LAW.
Instruction directing jury to convict if it believed from all the evidence and circumstances that defendant was guilty held not improper as authorizing jury to consider circumstances not proved or in evidence, and even if so construed could not have misled jury in view of other instructions.
APPEAL from circuit court of Covington county. HON. EDGAR M. LANE, Judge.
E.L. Dent, of Collins, and Livingston Milloy, of Prentiss, for appellant.
The two motions made by defendant are that the state wholly failed to make out a case of murder against the defendant. The uncontradicted proof up to this time shows that the deceased was following the appellant, trying to take his child, which was an unlawful act, and appellant's rights were protected by Section 995, Mississippi Code of 1930, in so far as a conviction of murder was concerned.
Ayers v. State, 60 Miss. 709; Cryer v. State, 71 Miss. 467, 14 So. 261; Williams v. State, 126 Miss. 151, 84 So. 8; Williams v. State, 127 Miss. 851, 90 So. 705; Maury v. State, 68 Miss. 605, 9 So. 445; Wilkinson v. State, 143 Miss. 324, 108 So. 711; Jones v. State, 155 So. 430.
After the state had rested and after the court had overruled the two motions, if we are mistaken in our contention that the court should have sustained our motion as to murder, we respectfully submit that the testimony of appellant clearly makes out a case of justifiable homicide, or appellant is protected by Section 995, Mississippi Code of 1930, under the doctrine as applied in the foregoing cases, and could not have been lawfully convicted of murder, and at most, the law would sanction only a conviction of manslaughter.
We respectfully submit that the appellant's explanation of the homicide, not contradicted directly or by fair inference, must be accepted as true.
Bowen v. State, 144 So. 230; Patty v. State, 126 Miss. 94, 88 So. 498; Houston v. State, 117 Miss. 311, 78 So. 182; Weathersby v. State, 147 So. 481; Wesley v. State, 153 Miss. 357, 120 So. 918; Walters v. State, 153 Miss. 709, 122 So. 189; Gray v. State, 158 Miss. 266, 130 So. 150.
The request for a peremptory instruction should have been given.
The state's instruction entirely ignores the right of the defendant to act under reasonable apprehension of danger, viewed from his standpoint alone at the time. From the state's instructions, it made no difference whether appellant had good reason to believe and did believe, his life was in real or apparent danger when he struck the blows, it was the sworn duty of the jury to find appellant guilty as charged, regardless of whether or not appellant believed at the time he was in real or apparent danger of losing his life or being done some great bodily harm.
The instruction does not limit the jury to the proven circumstances, or to the circumstances in evidence, but it is so sweeping and broad that it gives the jury the right to consider any circumstances which may have occurred during the trial, or prior to the trial.
In the case of Simmons v. State, 61 So. 826, 105 Miss. 48, an instruction similar to the one here, was held to be prejudicial and not cured by other instructions.
Warren v. State, 146 So. 449.
There is no proof that appellant whipped his wife, and even though the court permitted several such questions to be asked, indicating as a matter of fact he had whipped his wife, the statement of the court did not relieve the prejudice that had already formed in the jurors' minds that possibly he had whipped his wife, although there was no proof to that effect. Several splendid, white citizens of the community where the homicide occurred testified that appellant was a man of good reputation for peace and quietude in the community where he lived, and for the state's attorney to assume, without proof, that he had whipped his wife would be prejudicial to any man on trial charged with crime.
Herring v. State, 122 Miss. 647, 84 So. 699.
At the time the court was held, the caption recites "on the first Monday in October A.D., 1935, being the 7th day of said month, the time fixed by law for holding said court." Section 473, Mississippi Code of 1930, — Thirteenth District — the terms of Circuit Court shall be held in Covington County as follows: On the first Monday of January and first Monday of July, twelve days each.
While the order designates the term as a "special term," the law does not fix a special term, and it is nowhere in this record to show that a special term was called.
We do not contend that the court was not properly organized, our contention being that the minutes show that it was held at a time not authorized by law to be held as the caption recites, and that this error is jurisdictional in character and need not have been made ground of special exceptions of the court below as required by Section 3403, Mississippi Code of 1930. Even if the judge had called a special term, it was not the time fixed by law for holding the court as the minutes recite.
We respectfully call the court's attention to Section 1186, Mississippi Code of 1930, where an offense, partly committed in one county and partly in another, the jurisdiction shall be in the county where the prosecution first began.
Coleman v. State, 83 Miss. 290, 35 So. 937. W.D. Conn, Jr., Assistant Attorney-General, for the state.
Rule 2 of the Rules of this court ( 161 Miss. 903) provides, among other things: "A transcript shall not contain any part of the case except the pleadings, evidence, instructions, bills of exceptions and the order, judgment or decree appealed from, unless the appellant shall, by writing, request other matters specified to be embraced in the transcript, a copy of which shall be annexed to the transcript," etc.
Thus, in the absence of the request provided for, it appears that in a criminal case, the only contents of a record would be the indictment, pleadings subsequent thereto with orders of court with respect thereto, the stenographer's notes, instructions, bills of exceptions, if any, and the judgment appealed from. What is shown at page one of the record is, consequently, a gratuity on the part of the clerk who made up this record. There is no order shown which called a special term and it is properly not a part of this record under Rule 2, referred to above. In the absence of the request therein provided for, it seems that the question presented here should be foreclosed.
On the other hand, the "minutes" show clearly that this was a "special term" of court and the phrase "the time fixed by law for holding said court" was a lapsus calami, or purely a clerical mistake that should pass unnoticed by the court.
Section 3403, Code of 1930.
In the case at bar, the mortal blow was struck, according to the evidence, in Jefferson Davis county and death occurred in Covington County. Under Section 1187, the person responsible for death could be indicted in either county. This trial was on indictment returned by a Covington County grand jury.
If prosecution has, in fact, been started in another county, it is an objection to the indictment dehors the face thereof and must be taken by motion to quash.
Section 1207, Code of 1930.
It was not proper to go into the matter at the time it was attempted and certainly the trial court committed no error in sustaining the objections of the state.
The killing with a deadly weapon is assumed to be malicious, and therefore murder, and before the presumption disappears the facts of the killing must appear in the evidence and must change the character of the killing, either showing justification or necessity, before it is reduced from murder. If the facts relied upon to change such presumption are unreasonable and improbable, or if they are contradicted by physical facts and circumstances in evidence, then the jury may find a verdict either of murder or manslaughter, according to the circumstances and facts in evidence.
Bennett v. State, 152 Miss. 728, 120 So. 837; Stubblefield v. State, 142 Miss. 787, 107 So. 663; McFatter v. State, 147 Miss. 133, 113 So. 187; McGehee v. State, 138 Miss. 822, 104 So. 150; Grady v. State, 144 Miss. 778, 110 So. 225; Sullivan v. State, 149 Miss. 412, 115 So. 552; Ivy v. State, 119 So. 507.
Outside of the self-serving declarations (which were inadmissible, yet admitted without objection on the part of anyone) this case is precisely the case of Jackson v. State, 163 Miss. 235, 140 So. 683, at the time the state rested its case.
If the facts relied upon to change such presumption are unreasonable or improbable, or if they are contradicted by the physical facts and circumstances in evidence, then the jury may find a verdict either of murder or manslaughter, according to the circumstances and facts in evidence.
Bennett v. State, 152 Miss. 728, 120 So. 837; Weathersby v. State, 165 Miss. 207, 147 So. 481.
Argued orally by G. Milloy for appellant and by W.D. Conn, Jr., for the State.
In the circuit court of Covington county, appellant, Guysell Durr, was convicted of the murder of Handy Norwood, and was sentenced to the state penitentiary for life, and from this conviction and sentence he prosecuted this appeal.
The deceased, Handy Norwood, was the grandfather of appellant's wife and was over seventy years of age. The appellant and the deceased lived about half a mile apart, and on the day of the killing, the said Norwood was found lying on the side of a road or path about a quarter of a mile from appellant's home. His head and face were badly cut and bruised, and his skull crushed, and he died a short time later without regaining consciousness. To establish the charge of murder against the appellant, the state offered evidence of the finding of the body and the location thereof, and the physical facts surrounding it, including the fact that no weapon was found on or near the deceased's body. There was also offered the testimony of the physician who was called to attend the wounded man. He testified that there were three or four deep gashes in the scalp which were inflicted with some blunt instrument, and in describing the condition of the deceased, he testified as follows:
"I found him with serious wounds on his face and skull. I could see his brains. His skull was almost beaten into a pulp, and his cheek bone all crushed, and the forepart of his skull was crushed. You could easily have run your finger in and touched his brains. The brains were very visible. His head was just all beaten into a jelly, you might say."
A daughter of the deceased and her husband testified that five days after the killing they found a piece of iron about ten inches long, one and one-half inches wide, and one inch thick in the grass or weeds near where the body of the deceased was found, and that this piece of iron was wrapped in a bloody handkerchief which belonged to appellant. The piece of iron was introduced in evidence and was identified by these two witnesses as having been formerly used by the appellant in connection with the cooking stove in his home.
The sheriff testified that when he arrested the appellant shortly after the killing, he admitted that he struck the deceased with a piece of iron which he threw away near the scene of the killing; that he then took a gun from the deceased's person and fired it three times and left the scene; and that he threw the gun away about a mile from the scene. This pistol was found at the point where the appellant said he threw it away. The admissions and statements of the appellant as to the circumstances of the difficulty as detailed by the sheriff do not differ in material respects from the version thereof given by the appellant as a witness in his own behalf, and which is hereinafter set forth more at length.
Appellant testified that shortly before the difficulty, when he and his wife were at or near the home of the deceased, his wife reported to the deceased the fact that they had had a difficulty the day before and that Norwood then threatened to kill him if he ever hit his wife again; that he (the appellant) then started toward his home and soon discovered that Norwood was following him; that he proceeded to his home and hurriedly secured his baby and some clothes and left the premises through the front yard and gate before Norwood reached the back of the house; that as he passed through his yard he picked up the piece of iron that he described as being a part of a wagon tire, somewhat longer and wider than the iron found near the scene of the killing and introduced in evidence.
He further testified that when he had proceeded about a quarter of a mile Norwood caught up with him, and cursed him and threatened to kill him if he did not surrender the baby; that he did not surrender the baby, but placed it on the ground and asked Norwood "to go on and let me alone;" that Norwood replied, "No, I will kill you if you don't give me the baby;" that Norwood then started to draw a pistol; and that when he saw the handle of the pistol he struck Norwood with the piece of iron he had been carrying in his hip pocket. He further testified that he did not know how many times he struck the deceased, but that he did not strike him after he fell; that he took the pistol from the deceased's person and fired it three times, and then took his baby and left the scene. He denied that he used the piece of iron that was introduced in evidence, and denied that he owned the handkerchief that was wrapped around this iron when it was found. Several witnesses testified as to the previous good character of the appellant.
The first question that arises on this appeal is whether or not the court which tried the appellant was properly convened and organized. The convening order recites as follows:
"Minutes Covington County Circuit Court, October Special Term 1935.
"State of Mississippi, Covington County.
"Be it remembered that a Special Term of the Circuit Court of Covington County, State of Mississippi, was begun and held according to law at the Court House in the Town of Collins, said County and State, on the First Monday in October A.D. 1935 being the 7th day of said Month, the time fixed by law for holding said Court, with the following named officers present, to wit."
It will be noted that this convening order recites that the court was convened on the first Monday of October, A.D. 1935, being the 7th day of said month, "the time fixed by law for holding said court." The first Monday of October is not the time fixed by statute for the holding of the regular term of the circuit court of Covington county, but it will be further noted that the caption of the minutes of the term recites that it was a special term of the court, while the convening order recites on its face that it was a "special term of the Circuit Court of Covington County, State of Mississippi, . . . begun and held according to law." Under the provisions of section 731, Code of 1930, a special term of the circuit court can only be convened and held upon an order of the judge, made either in term time or in vacation, calling such term, but the failure of the clerk to enter the order calling the special term on the minutes does not oust the court of jurisdiction. Ex parte Neil, 90 Miss. 518, 43 So. 615. Since the statutes do not so provide, the recital in the order that the first Monday of October, 1935, was the time fixed by law for holding a term of the court was and is manifestly erroneous, while the important and necessary jurisdictional fact that the term of court which was convened on that date was a special term sufficiently appears in the convening order.
It appears from the record that the blows from which the appellant died were inflicted in Jefferson Davis county, while the death occurred in Covington county. Section 1187, Code of 1930, provides that "where the mortal stroke or other cause of death occurs or is given or administered in one county, and the death occurs in another county, the offender may be indicted and tried in either county," and under this statute jurisdiction attaches in the county where the prosecution is first begun. Neither the jurisdiction of the Covington county court, nor the validity of the indictment was challenged by plea, motion to quash, or otherwise, but was attempted to be raised for the first time by an offer of testimony before the jury tending to show that a prosecution was first begun in Jefferson Davis county. This testimony was excluded, and the appellant assigns its exclusion as error.
This jurisdictional question was one for determination by the court and not the jury, and where a lack of jurisdiction appears on the face of the record it can be raised in a proper way at any time, even for the first time in this court, but lack of jurisdiction by reason of a prior prosecution having been begun in another county cannot be made to appear of record in the trial of the cause by mere oral testimony before the jury, unsupported by any record of such purported former prosecution. There was no competent evidence of a prior prosecution introduced or offered by the appellant.
The assignments of error based upon the overruling of the motion to exclude the state's evidence and direct a verdict of not guilty, and the refusal of the peremptory instruction requested by appellant at the conclusion of all the evidence, present the same issues and will be considered together. In support of these assignments the appellant relies upon the rule announced in Weathersby v. State, 165 Miss. 207, 147 So. 481, and numerous other decisions of this court, to the effect that, where a defendant is the only eye witness to a homicide, his version of the facts, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by credible witnesses or physical facts and circumstances in evidence.
The presumption of malice which arises from the killing of a human being with a deadly weapon will prevail and characterize the act as murder, unless the facts in evidence change the character of the killing by showing either justification or necessity, and as said in Bennett v. State, 152 Miss. 728, 120 So. 837, 838, "if the facts relied upon to change such presumption are unreasonable and improbable, or if they are contradicted by physical facts and circumstances in evidence, then the jury may find a verdict either of murder or manslaughter, according to the circumstances and facts in evidence." In the case at bar the nature, character, and extent of the wounds on the deceased's face and head, in connection with the testimony as to the finding of the piece of iron near the scene partially wrapped in a bloody handkerchief belonging to the appellant, tend to show preparation to use the iron as a club, and to contradict appellant's version that when the deceased started to draw a pistol he (appellant) suddenly drew from his hip pocket a piece of iron of the dimensions stated by him, and struck the deceased only while he was standing on his feet and to protect himself from death or serious bodily injury. Upon the whole evidence we think the question of whether the killing was murder or justifiable homicide was one for the jury, and that no error was committed by the court in failing to instruct the jury that it could not render a verdict for any higher crime than manslaughter.
Appellant next complains of an instruction which directed the jury to convict, if it believed from all the evidence and circumstances in the case that the defendant was guilty, the criticism of this instruction being that it authorized the jury to consider circumstances not proved or in evidence. If this instruction can be so construed, it certainly could not have misled the jury, particularly in view of the other instructions for the state, and the many full and accurately drawn instructions granted the appellant which limited the jury to a consideration of the facts in evidence. The state's instructions fully recognized the appellant's right of self-defense and his right to act upon apparent danger, and there is no conflict between them and those granted the appellant which fully, accurately and repeatedly stated the law of self-defense as applied to the facts and circumstances in evidence. We do not think any of the other assignments of error are of sufficient merit to call for a discussion thereof. The judgment of the court below will, therefore, be affirmed.
Affirmed.