Opinion
No. 30514.
March 13, 1933.
CRIMINAL LAW. In murder prosecution, instruction held reversibly erroneous as telling jury, if they could not agree on verdict, to return verdict of guilty as charged, certifying inability to agree thereon.
Instruction was, in substance that verdict might be in one of forms given in instruction, and third form given was, "We, the jury, find the defendant guilty as charged, but certify that we cannot agree on the verdict. In this event, the court will fix the punishment at life imprisonment in the state penitentiary."
APPEAL from Circuit Court of Wilkinson County.
D.C. Bramlette, of Woodville, for appellant.
There appears an instruction given the state, of which the third paragraph provides in effect that should the jury be unable to agree on the verdict, they could find her guilty as charged, and in that event, the court would fix the punishment at life imprisonment in the state penitentiary. There appears, in accord with this instruction that the jury could not agree on a verdict, and, therefore, found the defendant guilty.
We respectfully submit that this instruction alone renders a reversal of this case inescapable.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
Section 1293 of the Code of 1930 provides that if the jury determines that an accused is guilty, but cannot agree as to the punishment, then the court shall sentence the accused to imprisonment in the penitentiary for life. Therefore, it is contended by appellant that the use of the word "verdict" in the instruction, instead of the word "punishment," as fixed by statute, must work a reversal in this case particularly in view of the fact that the jury used the identical words in its verdict as were used in the instruction.
It is true that the instruction does not track the law on this proposition, but, the verdict plainly shows that the jury had found her guilty as charged in the indictment charging her with murder. Inasmuch as they found her guilty and did not sentence her to be hanged, then life imprisonment was the only other alternative which was to be fixed by the jury or by the court, in the event they failed to agree on the punishment and it is submitted that the giving of this instruction was not such as to prejudice any of the substantial rights of appellant.
Argued orally by D.C. Bramlette, for appellant, and by W.D. Conn, Jr., for the state.
The appellant, Mary Lemon, was convicted of the murder of her husband, Nolan Lemon, and sentenced to serve a life term in the state penitentiary, from which this appeal is prosecuted.
The evidence of the killing on behalf of the state is very weak, and it is doubtful if it contradicts the explanation of the killing given by the appellant. From the record, however, it appears that there might be other evidence obtainable, and, for the giving of the instruction for the state, the conviction must be reversed. Unless the state's evidence can be strengthened, it is very doubtful whether the conviction should stand. See Patty v. State, 126 Miss. 94, 88 So. 498, and Bowen v. State (Miss.), 144 So. 230. This instruction given for the state reads as follows: "The court instructs the jury that in this case their verdict may be in one of the following forms, to-wit: — (1) We, the jury, find the defendant guilty as charged. In this event, the court will sentence the defendant to be hanged. (2) We, the jury, find the defendant guilty as charged and fix his punishment at life imprisonment in the state penitentiary. (3) We, the jury find the defendant guilty as charged, but certify that we cannot agree on the verdict. In this event, the court will fix the punishment at life imprisonment in the state penitentiary. (4) We, the jury, find the defendant guilty of manslaughter. In this event, the court will fix the punishment at imprisonment in the state penitentiary for a term of years not to exceed twenty years. (5) We, the jury, find the defendant not guilty."
The jury returned the following verdict: "We, the jury, find the defendant guilty as charged, but certify that we cannot agree upon the verdict."
The court erred in giving the instruction quoted above, particularly the third hypothesis: "We, the jury find the defendant guilty as charged, but certify that we cannot agree on the verdict." There was no effort in the court below to clear up this verdict of the jury before the jury was discharged, and it is clearly and manifestly reversible error. The effect of the instruction was to tell the jury that, if they could not agree on a verdict, they could return a verdict of guilty as charged, certifying their inability to agree thereon.
The judgment will be reversed, and the cause remanded for a new trial.
Reversed and remanded.