Opinion
No. 40412.
March 4, 1957.
1. Homicide — manslaughter — evidence of defendant's guilt sufficient for jury.
Evidence of defendant's guilt of manslaughter was sufficient for jury.
2. Criminal law — evidence — confessions — free and voluntary.
Evidence established that defendant's confession was voluntary and given without any threat, coercion or promise and was properly admitted in evidence.
3. Criminal law — instructions — refusal where erroneous or where amply covered by other instructions not error.
Refusal of instructions which were either clearly erroneous or were amply covered by other instructions was not error.
Headnotes as approved by Hall, J.
APPEAL from the Circuit Court of Jones County; LUNSFORD CASEY, Judge.
L.K. Saul, Ellisville, for appellant.
I. A man about to be assaulted is not required by law to wait until his adversary is on equal terms with him, but may rightfully anticipate his action and kill his adversary, if it reasonably appeared to be necessary in his self-defense. Leverett v. State, 112 Miss. 394, 73 So. 273; McNeal v. State, 115 Miss. 678, 76 So. 625.
II. The admissibility of confessions is for the Court alone, but when they are in evidence the jury must consider them like other evidence. If they believe after such consideration that they are false, they may disregard them, for they are not bound to believe them because the judge admitted them. If they think they were made because of fear, or for a hope of reward or aid, and because of the truth, the jury may then, after such finding, disregard them in their further deliberations. Brown v. State, 142 Miss. 335, 107 So. 373; Ellis v. State, 65 Miss. 44, 3 So. 188, 7 Am. St. 634; Williams v. State, 72 Miss. 117, 16 So. 296.
III. The following instructions requested by the appellant were refused by the Court:
"1. The Court instructs the jury to find the defendant not guilty.
"2. The Court instructs the jury for the defendant, that if you believe from the evidence in this case, that the defendant's mind was in a state of fear at the time of the alleged confession, because of the facts and circumstances surrounding him at that time, then you should disregard such confession in reaching your verdict in this case, even though you further believe that no threat nor promise of a lighter sentence or any other promises or threat was made to him.
"3. The Court instructs the jury for the defendant that if you believe from the evidence, that the alleged confession was brought about by fear, duress, intimidation or threat, or that the alleged confession is untrue, then you may disregard the alleged confession altogether in determining the guilt or innocence of the defendant.
"4. The Court instructs the jury for the defendant, that the State must prove beyond every reasonable doubt that the alleged confession of the defendant was free from any threat of punishment, or hope for a lighter sentence or fear, and that it was freely and voluntarily made, and if you find from the evidence that the State has failed to prove beyond every reasonable doubt any of the foregoing requirements of a confession then you should not take in consideration the alleged confession in reaching your verdict.
"5. The Court instructs the jury for the defendant, that even though he had a pistol, yet that fact is not proof of a premeditated murder, but the State must prove beyond a reasonable doubt that the defendant armed himself with the pistol for the purpose of using it to commit murder.
"6. The Court instructs the jury for the defendant that if you believe from the evidence that Buster Mitchell, the deceased, was making motion as if to draw a knife or gun to cut or shoot the defendant, that the defendant had a right to act upon the assumption that the deceased was intending to kill or do him a serious bodily injury; that the defendant had a right to shoot the deceased regardless of whether the dead man was armed with a knife or pistol, and if you find this to be the facts in the case, the defendant should be found not guilty.
"7. The Court instructs the jury for the defendant, that if you believe from the evidence of this case that the defendant reasonably believed that Buster Mitchell was intending to do him serious bodily harm, then the killing would be justifiable and the jury should find the defendant not guilty."
The refusal of these requested instructions was error. Fore v. State, 75 Miss. 727, 23 So. 710; Lee v. State, 138 Miss. 475, 103 So. 233; McNeal v. State, 115 Miss. 678, 76 So. 625; Patterson v. State, 75 Miss. 670, 23 So. 647; Thomas v. State, 61 Miss. 60; Williamson v. State, 115 Miss. 716, 76 So. 637.
J.R. Griffin, Asst. Atty. Gen., Jackson, for appellee.
I. The evidence is sufficient to support the verdict of the jury. McGehee v. State, 138 Miss. 822, 104 So. 140; Woods v. State, 229 Miss. 563, 91 So.2d 273.
II. The Court did not err in refusing appellant's instructions 2, 3 and 4 found on pages 26, 27 and 28 of the record. Brooks v. State, 178 Miss. 575, 173 So. 409; Alexander's Miss. Jury Instructions, Chap. 13 p. 120.
III. It is not error to refuse instructions requested by the appellant. Dobbs v. State, 200 Miss. 595, 29 So.2d 84; Holmes v. State, 199 Miss. 137, 24 So.2d 90; Alexander's Miss. Jury Instructions, Sec. 4368 p. 354.
Appellant was indicted for the murder of Buster Mitchell and was tried and convicted of manslaughter and sentenced to serve a term of fifteen years in the state penitentiary, from which he appeals here.
He first contends that he was entitled to a peremptory instruction for the reason that there was no believable evidence which contradicted his evidence and that consequently his version of the killing should be accepted. The shooting occurred at about 10:00 P.M. in a place known as Wilson's Cafe in the town of Ellisville. Jessie Wilson owned the cafe but she was employed at the Jones County Junior College and she had her sister Alma Carter operating the cafe. Buster Mitchell came to the cafe about 8:00 P.M. on the night of the killing and J.T. Green came at about 8:30 P.M. The appellant came in at about 10:00 P.M. Alma was standing behind the counter and J.T. and Buster were seated on stools at the counter, but there was some distance between them. According to Alma's testimony the appellant walked between Buster and J.T. and Buster told the appellant that he almost stepped on his foot. Appellant said that he didn't and Buster got up and put both hands in his pants' pockets and walked away from the counter. The appellant told Buster "Looks like you want something at me", and Buster said no, and appellant then said "I will shoot you" and pulled out his pistol and shot Buster. According to Alma's testimony Buster had nothing in his hands and she did not see anything in his pocket. When he was shot Buster said "I thought you was my friend" and fell on the floor and the appellant went on out the door and did not say anything further to Buster. According to Alma, Eddie Lee had been in the cafe about four minutes at the time of the shooting. She said he acted normal and wasn't drunk. She said that both Buster and the appellant talked all right and she didn't smell any liquor on either of them. She admitted that Buster was a little taller and heavier than appellant.
J.T. Green, the other person present in the cafe, testified substantially to the same effect as Alma. After the shooting he went and told Buster's sister who lived nearby and she began screaming and several other colored people came in the cafe and put Buster in a car and carried him to the hospital. He, too, testified that neither the appellant nor Buster was drunk. A physician with the South Mississippi Charity Hospital at Laurel testified that he saw Buster at about 10:50 P.M. after he was brought to the emergency room at the hospital. He said that Buster was then about dead from the gunshot wound and did die about two hours later while under an operation to remove the bullet which had lodged in Buster's spine. On the following day he performed an autopsy at the funeral home and described the course of the bullet and was definite in his testimony that the bullet wound caused the death.
A sister-in-law of appellant testified that immediately after the shooting the appellant came to her house and told her that he had shot Buster and gave her the pistol and she later gave it to "the law". She said that before appellant went to the cafe she and her husband and appellant and appellant's girl friend had drunk a half-pint of moonshine whiskey. Two of those who went into the cafe to remove Buster to the hospital testified that he had no weapon of any kind in his pockets or on the floor. The sheriff of the county testified that on the following day while he had the appellant in jail the appellant made a written confession in which he said that he had been drinking bootleg whiskey before he went to the cafe and that he carried the pistol with him; that he had never had any trouble of any kind with Buster; that he talked with Buster but could not remember anything that was said by Buster or himself; that he shot Buster and shot him for nothing and that during the entire time he was in the cafe there were no threats by any person to do any bodily harm to any other person and specifically that he did not threaten to kill or harm Buster, and that Buster did not threaten to kill or harm him, but that he just shot him over nothing and killed an innocent boy who was his good friend, and that the only reason he can give for shooting Buster was that he, the appellant, had been doing some drinking.
The appellant testified in his own behalf and said that he remembers the occasion of the shooting. According to his version, Buster was advancing toward him after the conversation about his almost stepping on Buster's foot.
(Hn 1) Under the foregoing statements of the witnesses we do not think that the appellant was entitled to a peremptory instruction and we are further of the opinion that he should consider himself fortunate in that the jury convicted him of manslaughter instead of murder. (Hn 2) The appellant next complains that the trial court erred in admitting in evidence the written confession. Before it was admitted the circuit judge heard the testimony in the absence of the jury as to the voluntary character of the confession, which evidence was that the sheriff wrote the statement himself but wrote it exactly in accordance with what appellant told him, and further that before making any statement whatever the appellant was told that any statement he made might be used against him and that he did not have to make a statement at all; that no threats, promises or hope of reward, or any other action was taken against him to induce him to make the statement, but that the statement was of his own free will. It is true that the appellant said he was unable to write and that it was signed "His Mark X" by a colored cook in the jail. On the preliminary examination of evidence in support of the voluntary character of the confession, the appellant's counsel declined to have him take the stand and deny the same, and when appellant testified on the merits in his own behalf he stated that nobody threatened him in any manner to induce him to make the statement. He said that the statement was read to him before it was signed and he did not deny telling the sheriff and other officers exactly what was in the statement and gave as his only excuse for making the statement that he was scared, and then he admitted that he was scared because Buster had died. From the evidence surrounding the giving of this statement we are convinced, as was the trial court, that it was wholly voluntary and was given without any threat, coercion or promise and was properly admitted in evidence by the lower court.
(Hn 3) The appellant also complains at the action of the lower court in the refusal of five instructions. Without discussing these instructions in detail, it is sufficient to say that some of them were clearly erroneous and the others were fully covered by four other instructions which the appellant obtained.
We conclude that the judgment of the lower court should be affirmed.
Affirmed.
McGehee, C.J., and Kyle, Holmes and Gillespie, JJ., concur.