Opinion
No. 39411.
January 3, 1955.
1. Homicide — guilt — grade of homicide — jury question — manslaughter — evidence — sustained conviction.
Conflicting evidence as to circumstances of fatal stabbing was sufficient to take prosecution for homicide to jury on question of guilt and grade of the homicide, and a conviction for manslaughter was not against the weight of the evidence. Sec. 2226, Code 1942.
2. Homicide — murder issue — properly submitted to jury — instructions — limiting grade to manslaughter — properly refused.
Where State's evidence showed that defendant had stabbed and killed defendant without justification, issue as to murder was properly submitted to jury and instruction requested by defendant, limiting the grade to manslaughter, was properly refused. Sec. 2226, Code 1942.
3. Appeal — manslaughter conviction — murder instruction — defendant cannot complain of.
Where defendant was convicted only of manslaughter, she could not complain on appeal of the giving of a murder instruction. Sec. 2226, Code 1942.
4. Homicide — self-defense — instructions — elements necessary to justify — not erroneous.
In such case, State's instruction directed to the existence of the elements necessary to justify a homicide on plea of self-defense was not erroneous.
5. Homicide — manslaughter conviction — instructions — presumption — malice from use of deadly weapon — not prejudicial.
Where all of the facts and circumstances surrounding a homicide are fully disclosed by the evidence, it was error to instruct that the law presumes malice from the use of a deadly weapon, but where defendant was convicted only of manslaughter, and malice is not a requisite ingredient thereof, defendant suffered no harm from such instruction.
6. Criminal law — homicide — manslaughter — lesser grade than murder.
It is generally known that manslaughter is a lesser grade of felonious homicide than murder. Sec. 2226, Code 1942.
7. Criminal law — murder — instructions — defining manslaughter — defendant's duty to request.
In such case, where State's evidence showed that defendant, without justification, had stabbed and killed decedent, and instruction for State informed jury in effect that, if it found defendant guilty of manslaughter, what the form of the verdict should be, it was not incumbent on prosecution to request a manslaughter instruction, and on appeal from conviction of manslaughter defendant could not complain of failure of Court to define manslaughter in submitting such form of verdict, in absence of request by defendant for instruction correctly defining manslaughter. Sec. 2226, Code 1942.
Headnotes as approved by Lee, J.
APPEAL from the circuit court of Jones County; F. BURKITT COLLINS, Judge.
Raymond Swartzfager, Laurel, for appellant.
I. The Trial Court erred in refusing the following instruction for the appellant: "The Court instructs the jury for the defendant that you may not find the defendant guilty of any greater crime than manslaughter." Bangren v. State, 196 Miss. 887, 17 So.2d 599; Bergman v. State, 160 Miss. 65, 133 So. 209; Cutrer v. State, 207 Miss. 806, 43 So.2d 385; Shedd v. State, 203 Miss. 544, 33 So.2d 816; Taylor v. State, 188 Miss. 166, 194 So. 589; Williams v. State, 122 Miss. 151, 84 So.2d 85.
II. The Trial Court erred in refusing appellant's instruction for a directed verdict. Cook v. State, 194 Miss. 467, 12 So.2d 137; Hill v. State, 94 Miss. 391, 49 So. 145; Lamar v. State, 64 Miss. 428, 1 So. 354; McNeal v. State, 115 Miss. 678, 76 So. 625; Patterson v. State, 75 Miss. 670, 23 So. 647.
III. The Trial Court erred in granting an instruction to the State, which reads as follows: "The Court instructs the jury for the State that in order to justify a homicide on the pleas of self-defense, there must be something shown in the conduct of the deceased indicating a present intention to kill, or to do some great personal injury to the slayer, and immediate danger of such intention being accomplished; and mere fears or belief are insufficient. The danger must be such as to lead a person reasonably to believe that the killing was necessary to prevent the deceased from killing her, or doing her some great bodily harm." Hartfield v. State, 176 Miss. 776, 170 So. 531; Lamar v. State, supra; McNeal v. State, supra; Staten v. State, 30 Miss. 619; Vance v. State, 182 Miss. 840, 183 So. 280.
IV. The Trial Court erred in granting an instruction to the State, which reads as follows: "The Court instructs the jury for the State that the deliberate use of a deadly weapon in any difficulty, not in necessary self-defense, is a fact from which malice may be inferred." Batiste v. State, 165 Miss. 161, 147 So. 318; Bridges v. State, 197 Miss. 527, 19 So.2d 738; Hartfield v. State, supra; Hawthorne v. State, 58 Miss. 778; Walker v. State, 146 Miss. 510, 112 So. 673.
V. The Trial Court erred in granting an instruction to the State, which reads as follows: "The Court instructs the jury for the State that you do not have to know that the defendant is guilty before you can convict her; it is only necessary that you believe from all the evidence in this case beyond a reasonable doubt that the defendant is guilty before you are warranted in finding her guilty." McNeal v. State, supra.
VI. The Trial Court erred in granting an instruction to the State, which reads as follows: "The Court instructs the jury for the State that if you believe from all the evidence in this case beyond a reasonable doubt that the defendant is guilty of manslaughter, the form of your verdict will be, `We, the jury find the defendant guilty of manslaughter,' writing your verdict on a separate sheet of paper."
VII. The Trial Court erred in granting to the State the instruction to the effect that they could find the defendant guilty of murder. Jones v. State, 98 Miss. 899, 54 So. 724; Taylor v. State, supra.
VIII. The Trial Court erred in excluding from the jury testimony relating to deceased's past record or numerous assaults and batteries. Cotton v. State, 31 Miss. 504, Ring v. State, 5 So. 97; Smith v. State, 75 Miss. 542, 23 So. 260.
IX. The Trial Court erred in refusing appellant's motion for a new trial on the grounds that the verdict of the jury was contrary to the evidence. Cook v. State, supra; Henderson v. State (Miss.), 180 So. 89; Houston v. State, 117 Miss. 311, 78 So. 182; Johnson v. State, 79 Miss. 42, 30 So. 39; McNeal v. State, supra; Williams v. State (Miss.), 98 So. 242.
Joe T. Patterson, Asst. Atty. Gen., Jackson, for appellee.
I. Ordinarily, accused's guilt of murder or manslaughter is a question for the determination of the jury.
II. The jury found the appellant guilty of manslaughter; therefore, appellant is in no position to complain of the State being granted an instruction on murder, or the defendant being refused an instruction limiting the conviction to manslaughter. Trask v. State, 216 Miss. 557, 62 So.2d 888.
III. It is only when taking all of the State's evidence as being true, the proof fails to show appellant guilty of the crime charged that a peremptory instruction should be granted. Vol. I, Alexander's Miss. Jury Instructions, Sec. 76 p. 47.
IV. In order to justify or excuse the taking of human life in self-defense, the danger of peril of loss of life or the inflicting of serious bodily harm must be, or appear to be, impending and imminent, and so urgent and pressing that it is necessary for him to kill in order to save himself. Pitts v. State, 211 Miss. 268, 51 So. 448; Ransom v. State, 149 Miss. 262, 115 So. 208; Robinson v. State (Miss.), 49 So.2d 413; Sec. 2218(f), Code 1942.
V. The deliberate use of a deadly weapon in any difficulty, not in necessary self-defense, is a fact from which malice may be inferred. Dickens v. State, 208 Miss. 68, 43 So.2d 366; Sec. 2226, Code 1942.
VI. It was not incumbent upon the State to request an instruction defining the elements of manslaughter.
VII. The murder instruction was properly granted.
VIII. The issue of whether the accused was guilty of murder or manslaughter was submitted to the jury under proper instructions, and that issue is ordinarily one for the determination of the jury. West v. State, 218 Miss. 397, 67 So.2d 366; Sec. 2226, Code 1942.
Pairlee (Alias Parllee) Rogers was indicted in the Circuit Court of Jones County for the murder of Woodrow Crosby. The jury found her guilty of manslaughter and the court sentenced her to serve a term of twelve years in the state penitentiary. From the judgment rendered she appealed.
On September 5, 1953, Woodrow Crosby and his wife, Phoebe Lee, were operating a sandwich shop in the City of Laurel. During the afternoon Sammy Evans and Jesse James Keys engaged in a fist fight in the shop. Woodrow undertook to separate them. He got his arms around Sammy's neck, and in tussling they moved outside of the shop. The versions of the State and the defendant, as to the subsequent events, were in sharp conflict.
According to the evidence of Phoebe Lee Crosby and her sister, Amy Day, two alleged eyewitnesses, Pairlee Rogers came directly across the street from the home of Bessie May Moffett, a cousin of her husband, with either a Texas jackknife or a switch blade. Phoebe Lee, thinking that the defendant was about to make an attack on her, grabbed her arm and said, "Sister, I haven't done anything to you" and shoved her backwards. The defendant then struck Woodrow over the eye. Thereupon he turned Sammy loose, picked up a brick and said, "If you come up on me with that knife, I will hit you with this brick." However she did go up on him and stabbed him; and he immediately exclaimed, "I am stabbed to the heart, take me to the doctor." Amy's version was that the defendant went up to Woodrow and said, "Don't hit him any more," and immediately struck Woodrow. Thereupon Woodrow reached down for a brick, saying, "If you cut me again I will hit you with this brick"; but, as he came up with it, he exclaimed, "Oh, I am stabbed to my heart," and fell to his knees. Both of these witnesses testified that they did not have bricks or weapons of any kind; that Woodrow had no weapon of any kind, did not strike the defendant with a brick, and made no effort to get the brick until after defendant had struck him.
Sammy Evans testified that the tussle arose from his shoving Keys on some Coca-Cola bottles; that he and Woodrow were not fighting; that they were life long friends; that Woodrow did not hit him with a brick and he had no knots on his head; that there was no reason for Pairlee to come to his rescue, as he was in no danger; and that he did not even know her, and had never seen her until the day of the trial.
According to the medical evidence, the stab was about three-quarters of an inch wide and in the right side of the chest. It penetrated the lungs and caused death about thirty minutes later.
The defendant, in testifying for herself, said that she was on her way home when she observed the fighting; that she asked Woodrow to turn Sammy loose and she would take him up the street; that Phoebe Lee, with a brick in her hand, intervened and asked what she had to do with it; that her sister, Amy, also had a brick; that Woodrow turned Sammy loose, ran at her, struck her with a brick, knocked her down, started on her again, and then it was that she stabbed him. She was given substantial corroboration in her version by three other witnesses, and in part, by another. On cross examination, she admitted that, prior to the trial, she stated that she and Woodrow were facing each other when he struck her with the brick, and she could not explain how, with the brick in his right hand, Woodrow struck her on her right arm. But, as a witness, she said that she fell, and in that way, caught the lick on her right arm.
(Hn 1) Since the evidence presented a sharp dispute as to the circumstances of the stabbing, the issue was for the jury. Hence the requested peremptory for the defendant was properly refused. Neither was the verdict against the weight of the evidence.
(Hn 2) According to the State's evidence, the appellant stabbed Crosby to death at a time when neither she nor Sammy Evans were in any danger, real or apparent, of losing their lives or suffering some great bodily harm at the hands of Crosby. If the killing occurred under those circumstances, it was either murder or manslaughter; murder, if done with malice aforethought, and manslaughter, if done without malice. Both guilt and the grade of the homicide were for the determination of the jury. Hence it was not error to submit the issue as to murder. Denham v. State, 67 So.2d 445. (Hn 3) Besides since the appellant was convicted only of manslaughter, she can not complain at the giving of a murder instruction. Trask v. State, 216 Miss. 557, 62 So.2d 888; Denham v. State, supra, and authorities there cited. Consequently the court properly refused the defendant's requested instruction which limited the grade of the homicide to manslaughter. Knight v. State, 215 Miss. 251, 60 So.2d 638.
(Hn 4) Complaint is made of a certain State instruction directed to the existence of the elements necessary to justify a homicide on a plea of self-defense. Without quoting the instruction, it is sufficient to say that it was in substantial conformity with the instruction which was approved by this Court in Ransom v. State, 149 Miss. 262, 115 So. 208. See also Robinson v. State, 49 So.2d 413; Pitts v. State, 211 Miss. 268, 51 So.2d 448.
Appellant also complains of a State instruction which informed the jury in effect that malice may be inferred from the deliberate use of a deadly weapon in a difficulty, not in necessary self-defense.
(Hn 5) This Court has repeatedly held that where all of the facts and circumstances surrounding a homicide are fully disclosed by the evidence, it is error to instruct that the law presumes malice from the use of a deadly weapon. Cumberland v. State, 110 Miss. 521, 70 So. 695; Walker v. State, 146 Miss. 510, 112 So. 673; Smith v. State, 161 Miss. 430, 137 So. 96; Winchester v. State, 163 Miss. 462, 142 So. 454; Batiste v. State, 165 Miss. 161, 147 So. 318; Dickins v. State, 208 Miss. 69, 43 So.2d 366. This conviction however was for manslaughter, not murder; and malice is not a requisite ingredient of manslaughter. Section 2226, Code of 1942; Moore v. State, 86 Miss. 160, 38 So. 504. Consequently the appellant suffered no harm from the instruction.
A State instruction informed the jury in effect that, if it found the defendant guilty of manslaughter, what the form of the verdict should be. Appellant contends that this constituted error because it did not define manslaughter.
(Hn 6) Now it is generally known that manslaughter is a lesser grade of felonious homicide than murder. (Hn 7) Under the State's evidence, it was not incumbent on the prosecution to request a manslaughter instruction, although it would have been proper to do so. If the defendant had requested an instruction correctly defining manslaughter, of course the Court would have granted it. In the absence of such request, she is not in position to complain of the verdict.
The other assignments have been duly considered, but they possess so little merit that it is deemed unnecessary to make response to them.
No prejudicial error appears in the record, and the cause must therefore be affirmed.
Affirmed.
McGehee, C.J., and Arrington, Ethridge and Gillespie, JJ., concur.