Opinion
No. 34677.
November 24, 1941.
1. HOMICIDE.
The defendant cannot complain of the giving of a manslaughter instruction on a trial for murder even though the evidence would have sustained a verdict of guilty of murder and would not have sustained verdict of guilty of manslaughter.
2. CRIMINAL LAW.
Defendant could not raise contention that trial judge erred in modifying instruction presented to him by defendant where defendant on the trial used the instruction as modified.
3. CRIMINAL LAW.
Error, if any, contained in instruction on circumstantial evidence given on behalf of the state, was cured by a similar instruction granted to and used by the defendant.
4. CRIMINAL LAW.
Instructions must be taken as a whole, as one body, and announce, not the law for the plaintiff or the defendant, but the law of the case.
APPEAL from the circuit court of Kemper county, HON. JOHN C. STENNIS, Judge.
J.H. Daws, of DeKalb, for appellant.
The evidence from the whole record is insufficient, and does not warrant the verdict of the jury. Thomas v. State, 129 Miss. 332, 92 So. 225. From the whole circumstances, the testimony is contradictory and unreasonable and so highly improbable that the truth of it becomes so extremely doubtful that it is repulsive to the reasoning of the ordinary mind.
Instructions on circumstantial eidence should be predicated upon great care and caution. Alghei v. State, 25 Miss. 584. While circumstantial evidence is in its nature capable of producing the highest degree of moral certainty, yet experience and authority both admonish us that it is a species of evidence in the application of which the utmost caution and diligence should be used. Hogan v. State, 127 Miss. 407, 90 So. 99; Taylor v. State, 108 Miss. 18, 66 So. 321; John case, 24 Miss. 569; Morris State cases 608; Caleb's case, 39 Miss. 721.
In cases where the elements of manslaughter are laking then it is error to instruct the jury on the question of manslaughter. See Rester v. State, 110 Miss. 689, 70 So. 881; the Parker case, 102 Miss. 113, 58 So. 978.
The State had no evidence upon which to base a single instruction except circumstantial evidence, hence they procured one, and so did the appellant, the appellant's instruction being modified by the court and contrary to all the decisions of this court, and in support of this assignment of error in qualifying the defendant's instruction to the end that the jury was not required to consider same with care and caution, but only carefully, we cite the case of Moore v. State, 186 Miss. 546.
Greek L. Rice, Attorney-General, by R.O. Arrington, Assistant Attorney-General, for appellee.
The question of appellant's guilt or innocence was a question for the jury and the court committed no error in overruling the appellant's motion for a directed verdict for the defendant after both the defendant and the State had rested their case.
Counsel cites the case of Thomas v. State, 129 Miss. 332, 92 So. 225. This case supports the theory of the State.
Counsel in his brief argues that it was error for the court to instruct the jury on the question of manslaughter, citing the case of Rester v. the State, 110 Miss. 689, 70 So. 881; and also the Parker case, 102 Miss. 113, 58 So. 978. The Parker case was overruled in the Houston case, 105 Miss. 413, 62 So. 421. The Houston case was later overruled in the case of Rester v. the State, 110 Miss. 689, 70 So. 881. However, in the case of Calicoat v. State, 131 Miss. 169, 92 So. 318, the Rester case was overruled and the principles announced in the Houston case were adopted by the court. This also overruled the Parker case, the two cases relied upon by counsel.
In Alexander v. the State, 145 Miss. 675, 110 So. 367, the court followed the Calicoat case, supra, holding: "It is now quite well settled that the defendant cannot complain of the giving of a manslaughter instruction on trial for murder, even though the evidence would have sustained a verdict of guilty of murder, and would not have sustained a verdict of guilty of manslaughter," citing authorities. This rule has been followed by our court in many recent cases. See Bradford v. State, 161 So. 138.
Counsel assigns as error the action of the lower court in modifying the appellant's instructions with reference to circumstantial evidence. This instruction was used by appellant as modified. This was not error. Williams v. State, 95 Miss. 671, 49 So. 513; Pullen v. State, 175 Miss. 810, 168 So. 69; Mississippi Public Service Company et al. v. Collier, 183 Miss. 271, 183 So. 379.
Counsel further criticizes an instruction given on behalf of the State on circumstantial evidence. The defendant requested and was given a similar instruction. The court was very liberal in granting instructions for appellant. Williams v. State, supra; Sauer v. State, 166 Miss. 507, 144 So. 225. No error was committed by the lower court in announcing the law when taking all of the instructions, those given on behalf of the State and those for the defendant, which must be read together and construed as a whole.
Argued orally by J.H. Daws, for appellant, and by R.O. Arrington, for appellee.
Appellant relies mainly on the contention that the evidence was insufficient to convict the defendant, and that his motion in the lower court to exclude the testimony of the State, and for a directed verdict for the defendant, should have been sustained. It would be of little, if any, benefit either to appellant or the bench and bar for us to undertake to set out the testimony in this record. We have examined and considered it very carefully, and are of the opinion that it is amply sufficient to support the verdict of the jury.
Appellant complains that the State was granted a manslaughter instruction. In Alexander v. State, 145 Miss. 675, 110 So. 367, 368, the Court said: "It is now quite well settled that the defendant cannot complain of the giving of a manslaughter instruction on a trial for murder, even though the evidence would have sustained a verdict of guilty of murder, and would not have sustained a verdict of guilty of manslaughter." Bradford v. State (Miss.), 161 So. 138.
The learned trial judge modified an instruction presented to him by defendant, and appellant says this was error. Aside from the question of whether the instruction as modified was erroneous, which we do not decide, appellant is in no position to complain, since he used on the trial the instruction as modified. Williams v. State, 95 Miss. 671, 49 So. 513; Pullen v. State, 175 Miss. 810, 168 So. 69; Mississippi Public Service Co. et al. v. Collier, 183 Miss. 271, 183 So. 379.
Appellant also assigns as error a certain instruction on circumstantial evidence given the State on the trial. The error, if any, contained in that instruction was cured by a similar instruction granted to and used by the appellant. "The instructions must be taken as a whole, as one body, and announce, not the law for the plaintiff or the defendant, but the law of the case. . . ."
Williams v. State, supra [ 95 Miss. 671, 49 So. 514].
We find no reversible error in this record.
Affirmed.