Summary
In May v. State, 205 Miss. 295, 299, 38 So.2d 726, the Court applied the rule that "evidence of other crimes is incompetent except to show identity, guilty knowledge, intent or motive, or where the offense charged is so interwoven with other offenses that they cannot be separated."
Summary of this case from Wilson v. StateOpinion
February 14, 1949.
1. Criminal procedure — evidence of connected events to reveal motive and malice.
When a homicide occurred in the afternoon, evidence that the parties had had an altercation at the same house that morning, and that earlier in the same afternoon the accused returned and shot into the house, is competent to reveal motive and establish malice and deliberation in the homcide.
2. Criminal procedure — evidence of another crime, when admissible.
Evidence of other crimes is incompetent except to show identity, guilty knowledge, intent or motive, or where the offense charged is so interwoven with other offenses that they cannot be separated.
3. Criminal procedure — manslaughter instruction.
Accused may not complain of failure of the State to request a manslaughter instruction, and especially when there is no evidence suggesting manslaughter.
4. Criminal procedure — instruction of defendant's theory — manslaughter verdict not suggested.
When in a homicide case the defendant has requested and obtained an instruction which limits the verdict to guilty of murder or of an acquittal with no suggestion of any middle ground, he may not complain that the state requested no instruction on manslaughter.
5. Criminal procedure — instruction covered by other granted instructions may be refused.
An instruction requested by the defendant in a homicide case which has been covered in all valid respects by other instructions granted may be properly refused.
Headnotes as approved by Smith, J.
APPEAL from the circuit court of Jasper County; HOMER CURRIE, J.
J.M. Travis, for appellant.
The general rule is that, on a prosecution for a particular crime, evidence which in any manner shows or tends to show that accused has committed another crime wholly independent of that for which he is on trial, even though it is a crime of some sort, is irrevelant and inadmissible. 16 Corpus Juris, p. 586, Sec. 1132; Bennett v. Bay St. Louis, 103 Miss. 218, 60 So. 137; Brown v. State, 72 Miss. 997, 17 So. 278; Whitlock v. State, 6 So. 237; King v. State, 66 Miss. 582, 6 So. 188. This court has laid down the general rule. The general rule in criminal prosecutions is that evidence of a crime other than the one with which the accused is charged and for which he is being tried is inadmissible. And if it be doubtful whether such evidence falls within any exceptions to the general rule, it should be excluded. Dabney v. State, 82 Miss. 252, 33 So. 973. Details of previous disconnected difficulties between parties not admissible in trial of subsequent offense. Rich v. State, 124 Miss. 272, 86 So. 770. Language used by third person in prior difficulty with deceased held improperly admitted. Martley v. State, 109 Miss. 7717, 69 So. 210. In homicide details of previous difficulty on same day of killing between defendant's brother and deceased are inadmissible. McCoy v. State, 91 Miss. 257, 44 So. 814.
The appellant complains of the refusal of the following instruction: "The court charges the jury for the defendant, that if you believe from the testimony and evidence in this case that the defendant and the deceased, Richard Lang, had a difficulty at the house of Eddie B. Gillam on the day it is said the deceased was killed and prior to the time of the homicide, that the life of the defendant was threatened; and even though you believe from the testimony and evidence in this case that the defendant was warned not to return to the dwelling house of the said Eddie B. Gillam, that under the law, if he had good reason to believe that the deceased was undertaking and threatening the life of the defendant; then that the defendant not only had the right to arm himself with a twenty-two rifle, introduced into evidence for the protection of his life, but that he had a right to return to the house of Eddie B. Gillam at any time he so desired provided the same was not objected to by the said Eddie B. Gillam".
The record in this case fully discloses that the life of the appellant had been threatened by the deceased and others, and that under the law if he had good reason to believe that the threats would be carried out that under the law he, the appellant, had the right to make due preparation to protect his own life. The appellant contends that every man under the law has the right to protect himself from his adversary, where threats have been made. The law in this state seems to be well settled that where threats have been made, that the party has a right to make due preparation to protect his own life and the many decisions of this court have held the same as an excuse for carrying concealed weapons. The appellant cites the following authority to-wit: "Section 2081, Code of 1942, Deadly Weapons — Not applicable to certain persons. Any person indicted or charged for a violation of Section 2079 of this Code, may show as a defense, (a) That he was threatened, and had good and sufficient reason to apprehend a serious attach form any enemy, and that he did so apprehend. Suddith v. State, 70 Miss. 250, 2 So. 680; Page v. State, 99 Miss. 72, 54 So. 725; Harvey v. State, 102 Miss. 544, 59 So. 841; Hurst v. State, 101 Miss. 402, 58 So. 206.
The record fully discloses that when the first row came up all the parties in the fuss were ordered away from the house of Eddie B. Gillam; that on the last occasion when appellant returned to the house of Eddie B. Gillam about one o'clock of the day of the homicide, where the appellant stayed until the homicide occurred there was no objections raised by Eddie B. Gillam and he was not ordered away from his home. Anyway, the appellant had as much right to be there as the deceased Richard Long and Cliff Ratcliff.
The appellant contends that the above instruction correctly states the law and the same should have been granted to him by the trial court. The denial of this instruction places the appellant in the position that he had no right to arm himself for the protection of his own life after he had been threatened, and prejudiced his rights upon the trial of his case.
The appellant complains of the instruction granted the State, submitting the case to the jury on murder alone, and not including in the same or giving the jury the right to pass upon the matter on manslaughter.
After reviewing the record of the case now before the court, one would think the opinion of this court in the case of Johnston v. State, 23 So. 579, is so fitting and so applicable to the record now before the court that one would think that Judge Whitfield was writing in special reference to the case now before the court, when he says: "A more unsatisfactory case on the testimony was, perhaps, never presented to an appellate tribunal. There was not a charge given on either side as to manslaughter, and yet, on the proof, we think there might have been, properly, a verdict of manslaughter. We do not mean to say that a verdict of murder would be improper, on the testimony, if there had been no error of law, but since a verdict of manslaughter might also be held, it was, in the distressingly conflicting state of evidence, to the last degree important that no error of law should have been committed. The third instruction for the State shut the jury to a verdict of murder or nothing, and was on the record reversible error. The first instruction was also, in the state of the record, error; but as it is not assigned for error, we only notice it to preclude it being given again. Judgment reversed, verdict set aside, and cause remanded."
This court again in the case of Allen v. State, 139 Miss. 605, 104 So. 353, in discussing an instruction identical with the one now before the court, reversed the decision of the lower court and held that the instruction was error.
Geo. H. Ethridge, Assistant Attorney General, for appellee.
In appellant's brief under his argument, he first assigns and argues that the court erred in admitting incompetent testimony on behalf of the State over the objection of the appellant. It appears that this assignment is largely based on the theory that the morning difficulty which was introduced in evidence and objected to was a separate and disconnected matter from the matter of the fatal shooting. It appears that there was intimate relation between the happening in the morning and the happening of the afternoon and the fact that when Gillam sent a witness to the appellant to ask him not to return to Gillam's house with the gun, appellant was fixing a shot gun shell, cutting the pasteboard holding the shell together so that the shot would be propelled without scattering. The appellant did not carry the shotgun as presumably planned but carried a twenty-two rifle instead, making the carrying of the gun some evidence of the purpose to kill but even if he fired the gun on the way to Gillam's house it was an unlawful act indicative of ill will or malice and an act regardless of social duty or right and fatally bent on mischief and this brings it within the provisions of Section 2215, Code of 1942, defining murder. If the bullet fired into the house by appellant had killed any person the act would have been murder and would have come within Clause (b) of said section, which defines recklessness and killing in consequence thereof. The appellant aimed the gun at the deceased deliberately at a time when appellant was in no danger whatever.
As to the introduced evidence of the morning fuss between the deceased and appellant as constituting a separate offense, appellant cites 16 Corpus Juris 586, Section 1132. This rule has been recognized throughout the history of this state and exceptions showing when it is admissible have been discussed in the cases cited in appellant's brief and I do not question the doctrines of these cases in applying the rule and exceptions found in law on their respective facts. I do not deem it necessary to enter upon any analysis of these various cases because the facts in the present case make it clearly proper to show the previous difficulty and the return of the appellant to the home of Gillam after being warned to stay away was correctly introduced. The evidence shows that Gillam was apprehensive that appellant would do some mischief and might shoot Gillam himself.
Appellant next complains of an instruction requested by him and refused by the court. This instruction is copied in appellant's brief. I submit that this instruction is of itself vicious and does not announce the law as applied to the facts in this case. A person is not authorized to kill another merely because of threats made by such other person and threats only furnish evidence of hostility on the part of the person making the threats but before it can be acted upon by killing or using a deadly weapon there must be an overt act evidencing a present intention by the party making the threat to immediately carry out the threat. There must be some active demonstration then to warrant so serious a thing as taking the life of another person.
Appellant also complains that the State's instructions did not inform the jury that they could convict the appellant of manslaughter rather than murder. The court cannot give the jury any instructions on the weight of the evidence. Section 1530 prohibits the judge from giving instructions on his own motion and in the present case neither the state nor the defendant requested a manslaughter instruction. The judge, of course, could not act until he was requested to give such an instruction and the defendant had a perfect right if he thought it was a case where an instruction on manslaughter was proper to request the court to give it. It is beyond the power of this court to reverse a case for failure to give any instruction not requested by one of the litigants in the case. If either of the parties desires they may fight the case out before the jury on the evidence without any instructions whatever. The law does not require the district attorney or prosecuting power to apply for any instruction that the litigant does not believe proper under the evidence. Other states have different positions on this question, some of them requiring the trial judge to give the needed instructions and many reversals in such states take place because the judge, acting alone, injects instructions in the case not proper to be given. Whether the statute prohibiting the judge to give instructions on his own initiative is wise or unwise is not for this court or any other body except the legislative power to deal with or amend or correct. Personally, I think the statute is sound. The litigants usually have studied their case and are able to determine what instructions would be proper and correct, this being the result of previous study of the case in all of its angles, whereas the judge, if acting independently, undertakes without long reflection to select the law to be applied to the evidence would no doubt do more harm than good. Nevertheless, that is the law and there was no request on the part of the appellant to secure such instruction and, consequently, he cannot put the court in error in this regard because the law forbids the court to independently instruct the jury.
Upon an indictment charging him with the murder of Richard Lang, appellant was convicted in the Circuit Court of Jasper County, and sentenced to the penitentiary for life. The jury was unable to agree on the punishment.
On appeal here, he assigns and argues three allegedly prejudicial errors committed by the trial court, which we deem worthy of discussion. One, that he should have had a peremptory instruction at the end of the State's evidence, or, at the conclusion of all of the testimony; another, granting certain instructions to the State, and refusing others he requested; and objections to some of the testimony. We find no merit in these contentions.
The facts, briefly, are that about 9:30 A.M. of the second Sunday in May 1948, several negroes, including appellant, and Richard Lang, were gathered in the home of Eddie Gillam, when Richard Lang offended the appellant's amour propre, who attempted to assault the former with a walking stick. This stick was taken from appellant by Richard Lang, whom he afterwards killed. Appellant went to his own home not so far away, where he began preparing shells for his shotgun, so that, upon firing, the shot would not scatter. While he was so engaged, a messenger from Eddie Gillam arrived and urged him not to return to Gillam's house. His wife, and another woman, also urged him not to do so, and all tried to persuade him not to go back armed. He insisted he intended no harm to anyone, but had a right to return and to arm himself for his self-defense, and stubbornly rejected all pleas. However, he substituted his twenty-two riflle for the shotgun. Consequently, at half-past one of the same day, he left his home on his journey back to Gillam's house, from which the deceased, Richard Lang, had departed earlier with the intention of returning later, upon a perfectly lawful mission. Appellent at first contended that he went rabbit hunting, but later admitted he went to and fired into Gillam's home, where, all reasonable inferences from the evidence demonstrate, he considered Lang still to be present among those whom he claimed he desired to "scatter," by such otherwise motiveless shooting into the home of a friendly acquaintance. He had no quarrel with anyone there except Richard Lang, the victim of the homicide.
Following this episode, appellant reentered Gillam's home. Lang was absent. But, appellant sat around there with the rifle until later in the afternoon when Lang and a companion drove an automobile into the yard of the residence. When this happened, appellant immediately stepped to the front door, drew deliberate aim, and shot the deceased through the eye, killing him instantly. Lang was doing nothing to him whatsoever, had never threatened him, and was unarmed, and even unaware of his presence. All of the witnesses for the State agreed as to these matters, and all persons present were introduced on behalf of the State, except one woman, and, of course, the appellant. The woman, who appeared as a witness for the defense, contradicted appellant as to some of his statements, and testified to nothing in his favor.
The appellant, in his own behalf, testified that Lang, the deceased, had drawn a pistol in the morning embroglio, and was in the act of attempting to draw a bead on him with a pistol in the afternoon culmination, so that he, appellant, shot in his own self-defense. He also claimed that threats made against him justified him in defending himself. He alone so testified. The companion of Lang, in the car at the time of the fatal shooting, testified that deceased was unarmed, and never drew any pistol or other gun. Other eye-witnesses corroborated him.
From the foregoing summary of the evidence, it will be seen that the trial court was correct in overruling appellant's motions for a peremptory instruction and directed verdict, on the facts. We so hold, and also that the verdict of "guilty" returned by the jury was the only one which the testimony justified.
Objection was made to evidence of the original events at Gillam's home in the morning; and to the shooting into his house in the afternoon. The former, on the ground that it was irrelevant; and the latter because it involved another and separate offense, and was, therefore, incompetent. (Hn 1) All of the events formed a continuous and inseparable sequence culminating in the ultimate murder of deceased. The testimony furthermore was competent to reveal motive and establish malice, or deliberation in the homicide. Section 2215, Sub-section (a), Code 1942. (Hn 2) The rule applicable here is that evidence of other crimes is incompetent except to show identity, guilty knowledge, intent or motive, or where the offense charged is so interwoven with other offenses that they cannot be separated. Collier v. State, 106 Miss. 613, 64 So. 373. See also Clark v. State, 181 Miss. 455, 180 So. 602; Massey v. State, Miss., 19 So.2d 476; and Bangren v. State, 198 Miss. 359, 22 So.2d 360. The evidence was relevant and competent.
(Hn 3) Complaint is made that the conventional instruction as to verdicts and punishments upon conviction of murder, which did not also contain an instruction on manslaughter, was improper, because it limited the jury to murder or acquittal. Among others, perhaps, there are two answers to this argument which at once present themselves in the record of this case. First, in it there is no evidence even suggesting manslaughter. Second, the appellant was granted this instruction: "The court instructs the jury for the defendant; that unless you believe from the evidence in this case, beyond every reasonable doubt and to a moral certainty, that the defendant did, wilfully, unlawfully, feloniously and of his malice aforethought kill and murder the deceased, in manner and form, as charged in the indictment, then it is your sworn duty to find the defendant not guilty." (Hn 4) This instruction, asked by and granted the appellant, obviously limits the jury to a verdict of guilty of murder, or acquittal. The State properly refrained from asking the court for an instruction on manslaughter, and the appellant did not ask such an instruction, and had he done so, would not have been entitled to it. Section 1530, Code 1942, governs the method of obtaining instructions.
Complaint is made, also, by appellant that he was denied another instruction, to which there were so many reasons for rejecting it, we deem it profitless to set it out in this opinion. (Hn 5) Moreover, other instructions granted appellant embraced therein everything that was at all valid in this one refused. Futhermore, appellant was treated more than fairly by the instructions granted him by the lower court, numerous as they were, and some of them more favorable to him than was his right under the law. We find no merit in appellant's assign ment of errors as to the instructions in the case.
The judgment of the trial court is affirmed.
Affirmed.