Opinion
No. 30457.
March 13, 1933. Suggestion of Error Overruled April 10, 1933.
HOMICIDE.
In murder prosecution, question of insanity of defendant under evidence held for jury.
APPEAL from circuit court of Tishomingo county. HON. THOS. H. JOHNSTON, J.
O.T. Gaines, Jr., and T.A. Clark, both of Iuka, for appellant.
It is a general rule of law, that instructions, although they may state a correct principle of law, if it is not based upon or in conformity with the issues or facts raised or supported by the evidence are erroneous, especially where defendant has been or may be prejudiced thereby.
Instruction number two for the State told the jury that if two things from the evidence was shown that they should convict the defendant. (1) That if he were mentally capable of choosing right from wrong. (2) That if he shot with the deliberate design to take the life of Perry Price and not in necessary self defense real or apparent, etc. This instruction on these two propositions is in the conjunctive and positively told the jury that if he did not kill in self defense then they should convict. There was no evidence on which to base the self defense theory as shown by the record. The instruction is erroneous.
Rogers v. State, 34 So. 320.
The two instructions given for the State are erroneous in another particular, that is, they say "if the defendant was capable of choosing right from wrong." They should have said if the defendant was capable of knowing right from wrong. The instruction choosing right from wrong would clearly mean, that there is one of two selections to make, and that he must consider before the act and must select one of the two alternatives that is right or wrong but the test is knowing right from wrong so far as the particular act is concerned at the time of the killing.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
If one is capable of choosing between right and wrong, it must necessarily follow that he knows what is right and what is wrong. The fact that one is able to choose between right and wrong denotes a rational exercise of the mental faculties and is to be distinguished from mere chance.
The defendant was given instruction after instruction, relating to his defenses of insanity and taking them as a whole, together with those given at the request of the state, they correctly state all the law applicable to a case of this kind and it is submitted that the instructions that were given at the request of the state are accurate pronouncements of the law.
The appellant, Bob Hubbard, was indicted and convicted of the murder of Perry Price, and sentenced to life imprisonment. There were several eyewitnesses to the killing, and all the testimony shows or tends to show that Hubbard shot the deceased without speaking a word to him at the time when the deceased was making no effort to harm appellant, having nothing in his hand.
It appears that some years prior to this killing, Perry Price had killed the son of Bob Hubbard, tried for said killing in Savannah, Tennessee, and had been acquitted.
After the shooting of Price, Hubbard walked away, and when arrested, stated that he felt better than he had for years. Hubbard did not testify, and all the defense sought to show that he had worried a great deal about the killing of his son and the acquittal of Perry Price, that he visited the grave of his son daily, and that he kept in a trunk the bloody shirt worn by his son at the time he was killed by Price, and that Hubbard frequently opened this trunk and took the shirt out, and brooded over the matter.
However, there were numerous witnesses who testified that they did not observe anything abnormal in Hubbard's conduct; that they were with him frequently, and that he appeared to be normal.
A physician testified that he had known the appellant some time, and that he (the physician) had some experience in mental diseases, and that, on the hypothesis stated by members of the family, he thought Hubbard was insane, or partially insane.
Evidence as to insanity was for the decision of the jury, and their verdict upon this evidence is final.
We find no reversible error in any of the instructions, and the judgment will be affirmed.
Affirmed.