Opinion
No. 32153.
May 4, 1936.
1. HOMICIDE.
Evidence held sufficient to sustain conviction of manslaughter.
2. HOMICIDE.
Error, in instruction on murder, which left out requirement that proof must show facts beyond reasonable doubt, held not available to accused, who was convicted of manslaughter.
3. CRIMINAL LAW.
Error, in instruction on murder, which omitted requirement that proof must show facts beyond reasonable doubt, held cured by announcement of such requirement of proof made in other instructions.
APPEAL from circuit court of Warren county. HON.E.L. BRIEN, Judge.
Harry K. Murray, of Vicksburg, for appellant.
This case is controlled by the case of Houston v. State (Mississippi 1918), 117 Miss. 311, 78 So. 182. Turning to the last paragraph of the opinion in that case we read "The defendant nowhere denied the fight or the fact that she used a knife. After all, it is a question of whether she acted in necessary self-defense. From our interpretation of the testimony it follows that appellant was entitled to the peremptory instruction asked for and refused by the court . . ."
Underhill on Criminal Evidence (2 Ed.), sec. 118; Brown v. State, 88 Miss. 166, 40 So. 737.
In the state of the record in the court below, the state was granted an instruction attempting to define murder wherein the words "beyond a reasonable doubt" were omitted. Can this court now say that this was not prejudicial to the rights of the defendant in the Circuit Court? This is elementary; there are so many decisions of this court upon the omission of these words from an instruction for the state that it is idle here to enumerate them.
It is submitted that the appellant was entitled to the peremptory instruction in the lower court; there was nothing against her; she was in a fight for her life; she picked up a kitchen knife in her own kitchen and struck a man who had been beating her in this manner for years; a white woman who knew the defendant testified to her good character and reputation. We ask this honorable court, as we asked the circuit court, for simple justice, in view of all the facts, the discharge of the appellant here.
W.D. Conn, Jr., Assistant Attorney-General, for 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 charge the character of the killing, either showing justification or necessity, before it is reduced from murder. If the facts relied upon to charge 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 of either 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; Ivey v. State, 119 So. 507.
One of the instructions for the state, defining murder, does not require belief to be "beyond a reasonable doubt" before a verdict of murder could be returned. The jury was told over and over again that belief must be beyond a reasonable doubt, both those for the state and the defendant, and this error was rendered harmless.
On the other hand, she was convicted of manslaughter and the court will presume that no harm was done by this instruction on the murder theory.
Edwards v. State, 124 So. 764; Thomas v. State, 124 So. 766; Daniels v. State, 136 So. 725; Gregory v. State, 152 Miss. 133, 118 So. 906.
The appellant, Hattie Goff, was tried in the circuit court of Warren county, Miss., on an indictment charging her with the murder of Charlie Armstrong. She was convicted of manslaughter and sentenced to serve a term of ten years in the state penitentiary, from which this appeal is prosecuted.
It appears that Charlie Armstrong and Hattie Goff were living together in unlawful cohabitation in the city of Vicksburg, occupying a downstairs apartment, with other parties living upstairs, and the killing occurred in the afternoon. One of the occupants of the building saw the appellant come out of the room all bloody, and this witness said that appellant asked for a dress, which was given to her. She was seen by several parties shortly after the killing and did not appear to have any wounds or bruises. She fled from Vicksburg, and was seen thereafter at some point in the Mississippi Delta, some distance from Vicksburg, living under an assumed name.
The deceased was naked at the time he was killed, and he was stabbed in the back of his shoulder with a butcher knife, which, according to medical testimony, severed blood vessels at three important points. The deceased did not appear to have made any dying declaration about the matter. Some of the occupants of the building called a physician, who tried to stanch the flow of blood and sew up the wounds, but was unable to do so, and the deceased was taken to a hospital, where he died shortly after reaching there.
The occupants of the building testified that they heard no outcry or call, or anything to indicate that a difficulty was taking place, and knew nothing of it until the witness who saw appellant come out of the room met her.
The appellant testified, in her own behalf, that she and the deceased both worked; that she came home in the afternoon and he was naked and she thought he was preparing to go out; that the deceased accosted her and began to beat her with a stick of stovewood, and pushed her against a table on which the butcher knife was, and she picked it up and stabbed the deceased in self-defense. When she was arrested by the officer in the Mississippi Delta, she stated to the officer that the deceased was beating her with a broom handle and she stabbed him to prevent the beating.
It is contended by the appellant that the proof was insufficient to sustain the conviction, relying upon the law as announced in the following cases: Weathersby v. State, 165 Miss. 207, 147 So. 481; Houston v. State, 117 Miss. 311, 78 So. 182; Patty v. State, 126 Miss. 94, 88 So. 498; Wesley v. State, 153 Miss. 357, 120 So. 918; Walters v. State, 153 Miss. 709, 122 So. 189, and Gray v. State, 158 Miss. 266, 130 So. 150.
It is also contended that the appellant's account of the difficulty is undisputed, and that it constitutes a justification for the killing. The appellant testified that when the deceased was beating her, she called for help, but no one came. The proof by the witnesses for the state shows that there was only a thin floor between the upper and lower apartments, and that noises could be heard, as well as conversations, and that parties in the upstairs apartment could have heard an outcry had one been made.
Furthermore, there is an inconsistency in the statement made to the officer who arrested the appellant, and the statement made by her on the trial, as to what she was being beaten with, and she fled from the scene and lived under an assumed name, and notified no one in Vicksburg as to her whereabouts. These facts are sufficient to have warranted the jury in disbelieving the appellant's version of the killing, and the principles announced in the case of Bennett v. State, 152 Miss. 728, 120 So. 837, and the cases there cited, control.
It is also argued that the court erred in giving an instruction of murder by leaving out of said instruction the requirement that the proof must show the facts beyond a reasonable doubt. This error, if not cured by other instructions, is not available here because the appellant was not convicted of murder. However, the court gave another instruction which told the jury that the defendant could not be convicted unless they believed, from the evidence in the case beyond a reasonable doubt, that she was guilty as charged in the indictment; that they were not required to know she was guilty; but, if after considering, comparing and weighing all the evidence, they believed, beyond a reasonable doubt, that she was guilty as charged, this would be sufficient, and it was their duty to return a verdict of guilty. Further instructions emphasize the hypothesis that the proof must show, beyond a reasonable doubt, that the appellant was guilty. Therefore, the omission from one of the instructions is cured by the announcements in the other instructions.
The jury was warranted in believing that the killing occurred in a fight, but without legal necessity or justification.
The judgment of the court below, therefore, will be affirmed.
Affirmed.