Summary
finding flight instruction calculated to mislead the jury into believing that flight was substantive evidence of guilt
Summary of this case from Dennis v. StateOpinion
No. 33129.
May 30, 1938.
1. HOMICIDE.
In murder prosecution, where defendant testified that she was being assaulted and beaten by two persons, each about her size and strength, whether defendant believed and had good reason to believe that she was in danger of loss of her life or great bodily harm from such beating was for jury.
2. CRIMINAL LAW.
An instruction that flight was a circumstance from which guilt might be inferred was erroneous.
3. CRIMINAL LAW.
Flight is a circumstance which may be considered by the jury in connection with all the other material evidence in the case in determining guilt but it is not substantive evidence of guilt, since it is consistent with innocence as well as guilt.
4. CRIMINAL LAW.
Standing alone, flight is insufficient to establish guilt.
5. CRIMINAL LAW.
In murder prosecution where evidence made a case of murder, manslaughter, or not guilty, failure to give manslaughter instruction was not error, where such instruction was not requested and the instruction given for the state did not exclude such an instruction.
6. HOMICIDE.
Where evidence made a case of murder, manslaughter or not guilty, instruction that if from all evidence jury had reasonable doubt as to whether the killing was done in heat of passion or proceeded from principle of self-defense, jury should find defendant not guilty, gave defendant more than she was entitled to, since it permitted acquittal if the killing was manslaughter.
APPEAL from the circuit court of Bolivar county; HON.W.A. ALCORN, JR., Judge.
Roberts Smith, of Cleveland, for appellant.
The verdict of the jury is contrary to law and the evidence and, therefore, the request of appellant for a peremptory instruction to the jury to find the appellant not guilty should have been granted.
This court has many times held that where a defendant testifies to a state of facts which will absolve him or her from criminal responsibility, and such testimony is not contradicted, then the defendant's evidence must be taken as true and a peremptory instruction granted.
Weathersby v. State, 147 So. 481.
If the court should be of the opinion that under the evidence appellant should not be discharged, we then earnestly insist that certainly the evidence does not and cannot sustain a conviction for murder. There was no element of malice shown in the case, and since the uncontradicted proof is that both the deceased and Carrie Floyd were in the act of assaulting appellant at the time the shots were fired, and, although we contend that appellant should be discharged because the shots were fired in self-defense, there could be no question that the shots were fired in the heat of passion, if not in self-defense.
Staiger v. State, 70 So. 690.
We have assigned as error the giving of two instructions on behalf of the State, either of which, we think, is sufficiently erroneous and harmful to cause a reversal of this case. This court has held that when a case is close upon the facts it is highly important that no error of law appear in the record.
Johnson v. State, 23 So. 579.
The second instruction given for the state is positively erroneous and prejudicial to the rights of appellant. The instruction complained of is as follows: "The court instructs the jury for the State that even though you may believe, from the evidence in this case, that the defendant and the deceased had some kind of personal difficulty inside the cafe of John D. McWilliams, and that the deceased was actually engaged in assaulting the defendant with her fist and feet, and was being beaten without excuse or justification, this does not and cannot, in law, excuse or justify the defendant in taking the life of the deceased."
This instruction, in effect, is a peremptory instruction to the jury that appellant was not and could not, in law, be justified in taking the life of Carrie McWilliams in this case, because it directs the jury that if they believe that there was a difficulty in the cafe between appellant and Carrie McWilliams, and that Carrie McWilliams was beating appellant without excuse or justification, then appellant was not and could not be justified in taking her life.
The instruction leaves completely out of view and takes from the consideration of the jury the fact that Carrie Floyd was also beating appellant with the bottle and instructs them, if they believe an admitted fact, the appellant was not justified. The instruction is further erroneous in that it is not qualified as to the relative size of appellant and the other women.
Hill v. State, 49 So. 145; Bailey v. State, 165 So. 122.
The instruction is not only not cured by the instructions received by the appellant, but it is in direct conflict with and at variance with instruction No. 3 given for the appellant.
A part of this instruction complained of and which, in thought and principle, is wholly disconnected from the other portion of it, is as follows: "The court charges the jury that flight is a circumstance from which guilt might be inferred."
The granting by the court of this instruction was error for which this cause should be reversed and remanded. There is no evidence in the record from which flight can be inferred, and if there was, whether or not there was flight would be a question for the jury. This charge does not define flight and leaves nothing to the discretion of the jury. The effect of this instruction is to charge the jury that, as a matter of law, the facts shown constituted flight, and that the jury must consider such flight as a circumstance of guilt.
26 C.J. 741; People v. Herbert, 361 Ill. 64, 196 N.E. 821.
Flight from the scene of an offense is not substantive evidence of guilt, since it is consistent with innocence as well as guilt, though it may bear upon the purpose and intent of the party.
People v. MacCollough, 274 N.W. 693, 281 Mich. 15; Walters v. State, 135 So. 600.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
We submit that the facts of the case at bar do not call for the application of the rule of the Weathersby case, 147 So. 481, relied on by appellant. The least that can be said with reference to the facts of this case is that the homicide was of no lesser grade than manslaughter. The jury could have been well warranted in finding that this was an unnecessary killing at most, whether with malice or not. And, since a charge of manslaughter is an integral part of an indictment for murder, a peremptory instruction to find the defendant not guilty was properly refused, on the facts of this case.
Redwine v. State, 149 Miss. 741, 115 So. 889; Calvin v. State, 175 Miss. 699, 168 So. 75.
There was no manslaughter instruction requested by either the state or the defendant, but the defendant allowed the case to go to the jury on instructions which were calculated to require the jury to convict of murder or acquit. This court has held that in determining whether the facts of a case demonstrated that the homicide was murder or manslaughter, the jury has a wide discretion in their finding. They may believe a part of some of the testimony and disbelieve other parts. If there is any reasonable, competent evidence in the record to sustain the verdict of the jury, this court will not set aside the finding of the jury.
Woodward v. State, 130 Miss. 611, 94 So. 717; Cook v. State, 85 Miss. 738, 35 So. 110; Triplett v. State, 159 Miss. 365, 132 So. 448.
Appellant complains of the instruction given at the request of the state which, in substance, tells the jury that an assault on one with the fists and feet affords no justification for taking the life of the party. This instruction states a correct rule of law.
Waldrop v. State, 98 Miss. 567, 54 So. 66; Moore v. State, 144 Miss. 649, 110 So. 216; Hall v. State, 1 So. 351.
We submit there is no conflict in the instructions.
Guilt cannot be predicated upon the fact of flight alone, but it is a matter from which guilty knowledge and fear may be inferred and is a proper matter for the jury to consider in connection with all the other evidence in a case. The writer has not found where the court has ever approved an instruction worded such as the one here considered. Certain instructions involving the law of flight have been considered by the court heretofore and were uniformly held not to be on the weight of the evidence.
Tatum v. State, 142 Miss. 110, 107 So. 418; Ransom v. State, 149 Miss. 262, 115 So. 428; Sims v. State, 164 Miss. 16, 142 So. 468.
In these cases the instructions with reference to flight go further than does the one at bar and while we think the instruction, as given, states, in substance, a correct rule of law, yet, as to whether it goes far enough is a matter submitted to the court.
Appellant was indicted, tried and convicted in the circuit court of Bolivar county of the crime of murder, and sentenced to the penitentiary for life. From that judgment she prosecutes this appeal.
Appellant is a negro woman thirty-seven years old. She was convicted of the murder of Carrie McWilliams, also a negro woman. Carrie and her husband, John McWilliams operated a combined grocery store and restaurant facing highway No. 61 in Bolivar county; the business was owned by John, and he also owned a garage with an eight foot alley between the two buildings. Their home was to the rear of these buildings. About 9:30 o'clock on Sunday night, August 15, 1937, appellant shot and killed Carrie McWilliams and Carrie Floyd, her helper in the grocery store and restaurant. She was indicted for the murder of Carrie McWilliams alone.
Appellant had been riding in an automobile with Chester Hardy and four others, making six in all; the lights on the automobile went out; they drove up to the McWilliams place to have the lights repaired, and while this was being done appellant went into the grocery store and restaurant to purchase sandwiches and a coca cola; the only persons in the store were Carrie McWilliams and Carrie Floyd. As to what took place in there was testified to alone by appellant, there being no other eyewitnesses. The occupants of the automobile and John McWilliams were on the outside at or near the garage and not far from the front door of the store and restaurant. Appellant and the two women in the store had known each other for several years, and there was no illwill between them. Appellant ordered sandwiches and a coca cola and laid fifty cents on the counter. Her attention was attracted to something in the front part of the building that caused her to turn away and look in that direction. When she looked around the fifty cents was gone; she asked Carrie Floyd, who was near the counter at the time, to return it to her. Carrie Floyd denied having the money and called appellant "a damned liar." Appellant replied that she was "another;" that she had the money because nobody else was near the counter at the time it disappeared. Thereupon Carrie Floyd walked behind the counter, reached down and picked up something which she held behind her, and started toward appellant demanding that appellant refrain from charging her with taking the money. Appellant thereupon repeated what she had said in that respect. Carrie Floyd then struck appellant on the head with some kind of a bottle. At this juncture Carrie McWilliams ran up and hit appellant with her fists. All three of the women were about the same size. Appellant retreated toward the front door of the building, both women were following her and beating her, one with the bottle and the other with her fists. Appellant had a .38 caliber pistol in her purse, she pulled it out and shot and killed both of her assailants. Appellant further testified that the reason she shot was that she was afraid her assailants would either kill her or do her some great bodily harm; that she did not have the pistol for the purpose of using it on any one; that her possession of it at the time came about in this way — she had lent a friend $3.00, who put up the pistol as security for its repayment. He had never repaid the loan. She took the pistol with her that night in her purse because she was afraid to leave it in the home where she was living, her apprehension being that somebody would steal it in her absence.
The witnesses for the state were the six persons who were in and around the garage and the front of the store when the killing took place. They testified, in substance, that they saw Carrie McWilliams and Carrie Floyd immediately after the killing and observed them and their surroundings; that neither was armed with a bottle or any other kind of weapon; that Carrie Floyd had in her hand a half eaten hamburger, and had no weapon about her.
We are of the opinion that under the law the evidence made a case of murder, manslaughter, or not guilty of either. In other words, any one of those verdicts would have been supported by substantial evidence.
Appellant assigns and argues the giving of the following instruction for the state as error:
"The Court instructs the Jury for the State that even though you may believe, from the evidence in this case, that the defendant and the deceased had some kind of a personal difficulty inside the cafe of John D. McWilliams, and that the deceased was actually engaged in assaulting the defendant with her fists and feet, and was being beaten without excuse or justification, this does not and cannot, in law, excuse or justify the defendant in taking the life of the deceased.
"The Court charges the Jury that flight is a circumstance from which guilt might be inferred."
It will be observed that the instruction is in two paragraphs, and although given by the court as one instruction it is in fact two instructions, each dealing entirely with a separate and distinct feature of the case. Appellant was being assaulted and beaten by two persons each about her size and strength. It was a question for the jury whether or not under the circumstances appellant believed and had good reason to believe that she was in danger of the loss of her life or great bodily harm from such beating with hands and feet as the only weapons. Bailey v. State, 174 Miss. 453, 165 So. 122; Hill v. State, 94 Miss. 391, 49 So. 145. The first paragraph of the instruction as applied to this case was, therefore, erroneous, although not reversible error when taken in connection with other instructions given for the state and appellant. The second paragraph of the instruction, however, was not only error but was calculated to mislead the jury. The evidence tended to show that immediately after the killing appellant fled and was in hiding until the next night when she was arrested. The jury were told, in effect, that they could infer guilt from flight alone; in other words, could disregard all the other evidence in the case and find appellant guilty because she was a fugitive. Flight is a circumstance which may be considered by the jury in connection with all the other material evidence in the case in determining guilt but it is not substantive evidence of guilt since it is consistent with innocence as well as guilt. Standing alone it is insufficient to establish guilt. Tatum v. State, 142 Miss. 110, 107 So. 418; People v. Herbert, 361 Ill. 64, 196 N.E. 821; People v. MacCullough, 281 Mich. 15, 274 N.W. 693; Walters v. State, 24 Ala. App., 370, 135 So. 600.
No proper manslaughter instruction was requested or given. The instructions given the state did not exclude such an instruction. The trial court, therefore, could not be put in error in that respect.
By instruction No. 5 given for appellant the jury were told that if from all the evidence they had a reasonable doubt as to whether the killing was done in the heat of passion "or proceeded from the principle of self-defense you should find the defendant not guilty." By this instruction the jury were informed, in effect, that if the killing was manslaughter they should acquit the defendant. That gave appellant more than she was entitled to.
Reversed and remanded.