Opinion
No. 34749.
April 27, 1942.
1. STATUTES.
Laws 1940, ch. 225, which amends section 14 of Laws 1931, ch. 37, by fixing the term of the circuit court for Lincoln County, does not violate the constitutional provision that no law shall be revived or amended by reference to its title only, because the 1940 laws reproduces only section 14 of ch. 37, and not the entire chapter (Laws 1931, Ex. Sess., ch. 37, sec. 14, as amended by Laws 1940, ch. 225; Const. 1890, sec. 61).
2. HOMICIDE.
Evidence sustained conviction for manslaughter.
3. HOMICIDE.
In homicide prosecution, exclusion of evidence of threats made by deceased to kill defendant was not error, where such evidence would have been merely accumulative.
4. CRIMINAL LAW.
In homicide prosecution, limiting defendant to six witnesses with respect to defendant's character for peace and violence was not error, where district attorney stated that he did not intend to challenge defendant's character.
5. CRIMINAL LAW.
In homicide prosecution, error in granting the state the usual falsus in uno instruction did not require reversal where there was not even a probability on the evidence that without instruction any fairminded jury would have rendered a more favorable verdict for defendant than the one rendered.
APPEAL from circuit court of Lincoln county, HON. J.F. GUYNES, Judge.
A.A. Cohn and J.W. Cassedy, Jr., both of Brookhaven, for appellant.
It is competent for the defendant to show any previous or concurrent facts and circumstances which reasonably tend to increase or intensify a recent provocation. Previous insults and provoking facts, although not of themselves competent, may be admissible after the insult immediately causing the homicide has been proved, as giving character to the last insult and showing the state of the accused's mind.
Brown v. State, 88 Miss. 166, 40 So. 737; Lee v. State, 160 Miss. 618, 134 So. 185; Lambert v. State, 171 Miss. 474, 158 So. 139; Hendrix v. State, 172 Miss. 589, 161 So. 151; Guice v. State, 60 Miss. 714; Lee v. State, 179 Miss. 122, 174 So. 85; Clark v. State, 123 Miss. 147, 85 So. 188, 190.
The judge in any cause, civil or criminal, shall not sum up or comment on the testimony, or charge the jury as to the weight of evidence.
Metropolitan Life Ins. Co. v. Wright, 190 Miss. 53, 199 So. 289; Swanner v. State, 191 Miss. 47, 2 So.2d 142; Mississippi Code of 1930, Sec. 586.
The trial court erred in limiting the appellant to six witnesses, who testified that the general reputation of the appellant in the community in which he lives for peace and violence is good.
It has been held that it is within the discretion of the court to fix a reasonable limit to the number of witnesses to be heard on the question of accused's reputation or character; but, on the other hand, it has been held that the court should not limit the number of witnesses as to the good character of accused.
23 C.J.S. 430, Sec. 1042; Leverett v. State, 18 Ala. App. 578, 93 So. 374; Willis v. State (Ala.), 104 So. 141.
The law regulating the terms of court in Lincoln County immediately prior to April 26, 1940, provided that the June term of the Lincoln County court should be for civil business only. The Legislature of the State of Mississippi at the 1940 Regular Session passed Senate Bill No. 146, which attempted to amend Section 14, Chapter 37 of the Laws of 1931 Extraordinary Session. It is our contention that this act is unconstitutional in that it violates Sections 61 and 71 of the Constitution of the State of Mississippi.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
Error, if any, in excluding certain evidence is held harmless where the jury got the benefit of such evidence in spite of the court's ruling.
Holliday v. State, 108 Miss. 726, 106 So. 817.
Error in the exclusion of evidence is cured where the same matters are brought out by other evidence.
McCoy v. State, 91 Miss. 257, 44 So. 814; Turner v. State, 176 Miss. 862, 170 So. 642; Myers v. State, 167 Miss. 76, 147 So. 308.
The third assignment of error is that the court erred in restricting the number of character witnesses as to the general reputation of the appellant for peace and violence. This is a matter that comes within the discretion of the court and in the absence of an abuse of this discretion the ruling of the lower court will be sustained.
The motion and plea of abatement were filed on the ground that Chapter 225, Laws of 1940, page 398, was void and unconstitutional and that it violated Sections 61 and 71 of the Constitution. This was not error.
City of Jackson v. Deposit Guaranty Bank Trust Co., 160 Miss. 752, 133 So. 195; Heidelberg v. Batson, 119 Miss. 510, 525, 81 So. 225; Hart v. Backstrom, 148 Miss. 13, 113 So. 898.
The appellant was indicted for murder and convicted of manslaughter. The indictment was returned by the grand jury at a term of the court which convened on January 9, 1941. Its validity was challenged, but unsuccessfully, by the appellant on the ground that the court was without power to empanel a grand jury at its June term. Under Chapter 225, Laws 1940, the court below has full criminal jurisdiction at its June term. But the appellant says that chapter runs counter to Section 61 of the state's Constitution, which provides that "No law shall be revived or amended by reference to its title only, but the section or sections, as amended or revived, shall be inserted at length."
Chapter 37, Ex. Sess. of 1931, fixes the terms of the circuit courts of the state. One of the paragraphs of Section 14 thereof is as follows: "Lincoln: On the first Monday in January, four weeks, and third Monday in June two weeks and first Monday in September, four weeks. The June term shall be for civil business only."
Chapter 225, Laws 1940, provides that Section 14, Chap. 37, Laws of Ex. Sess. 1931, be amended to read as follows, and reproduces Section 14 of Chapter 37 in the exact language of that chapter, except that the paragraph therein dealing with Lincoln County reads as follows: "Lincoln county: On the second Monday of January, three weeks, and the second Monday of June, four weeks and the first Monday of September, four weeks."
As we understand the appellant's contention in this connection, it is that in amending Section 14 of Chapter 37, the legislature should have brought forward into the amending statute the whole of that chapter instead of only the section thereof intended to be amended. With this we cannot agree, and are of the opinion that in making this amendment the legislature followed literally the constitutional requirement.
Coming now to the merits. The evidence fully sustains the verdict, and there is no error in any of the rulings of the court except one to be hereinafter discussed. Evidence of a number of separate threats made by the deceased to kill the appllant were offered. Several of them were excluded, and no error was thereby committed; for evidence thereof would have been merely accumulative to that which the court permitted to be introduced and considered. The appellant offered to introduce twenty witnesses who would testify that his character for peace and violence was good, and on the statement by the district attorney that he did not intend to challenge the appellant's character, the court limited him to six witnesses thereto, and committed no error in so doing. 6 Wigmore on Evidence (3 Ed.), Sec. 1908.
The court below granted the state the usual falsus in uno instruction, correct in verbiage but which this court said should never have been given in any form. Metropolitan Life Ins. Co. v. Wright, 190 Miss. 53, 199 So. 289, and Swanner v. State, 191 Miss. 47, 2 So.2d 142. The error in granting the instruction here, however, does not require the reversal of the judgment, for the reason that there is not even a probability on the evidence that without the instruction any fair-minded jury would have rendered a more favorable verdict for the appellant than the one rendered here. Sikes v. Thomas et al., 192 Miss. 647, 7 So.2d 527.
Affirmed.