Opinion
No. 39155.
April 26, 1954.
1. Homicide — manslaughter — evidence sustained conviction.
Where defendant was convicted of manslaughter on a charge of murder, evidence sustained such conviction.
2. Homicide — manslaughter conviction — murder instruction — not error.
In such case, where defendant was convicted of manslaughter, he could not complain of the giving of a murder instruction, since he was not prejudiced thereby.
3. Criminal law — refused instructions — self-defense — use of deadly weapon — not error.
No error was committed in refusing defendant's certain requested instructions on self-defense where he was given four detailed instructions on that theory; and the refusal of defendant's instruction concerning his right to use a deadly weapon in self-defense was correct.
4. Criminal law — arguments of district attorney — not prejudicial.
In such case, arguments of the district attorney, although improper, under facts of the case, were not prejudicial to defendant's rights.
Headnotes as approved by Ethridge, J.
APPEAL from the circuit court of Lee County; RAYMOND T. JARVIS, Judge.
Ramon L. Burgess, Tupelo, for appellant.
I. The verdict of the jury is contrary to the law and the evidence. Bang v. State, 60 Miss. 571; Hill v. State, 94 Miss. 391, 49 So. 145; Long v. State, 52 Miss. 23.
II. The Court erred in giving each and every instruction requested by the State of Mississippi.
III. The Court erred in refusing to grant the instructions as requested by the defendant.
IV. Evidence in this cause is insufficient to sustain a verdict of manslaughter. Bell v. State, 207 Miss. 518, 42 So.2d 728; Scott v. State, 203 Miss. 349, 34 So.2d 718; Sec. 2218, Code 1942.
V. The Court erred in refusing to declare a mistrial as set out in the special bill of exceptions.
VI. The sentence given the appellant in this cause in view of the jury's recommendation is highly excessive.
Wm. E. Cresswell, Asst. Atty. Gen., Jackson, for appellee.
I. The guilt or innocence of appellant was a question for the jury, and there is ample evidence in the record to sustain the conviction. Goff v. State (Miss.), 49 So.2d 238; Sims v. State, 209 Miss. 545, 47 So.2d 849; Spivey v. State (Miss.), 47 So.2d 855.
II. The Court was eminently correct in granting all instructions to the State. Bangren v. State, 198 Miss. 359, 22 So.2d 360; Crockerham v. State, 202 Miss. 25, 30 So.2d 417; Hudson v. State, 185 Miss. 677, 188 So. 561; Johnson v. State, 75 Miss. 635, 23 So. 579; McCaffrey v. State, 185 Miss. 675, 187 So. 740.
III. The Court correctly refused certain instructions on behalf of the defendant. Durham v. State, 158 Miss. 833, 842, 131 So. 422; Molphus v. State, 124 Miss. 584, 597, 87 So. 133; Pitts v. State, 211 Miss. 268, 51 So.2d 448.
IV. There was ample evidence before the jury to sustain the conviction of manslaughter.
V. The Court was correct in refusing to declare a mistrial because of argument of the District Attorney. Herrin v. State, 201 Miss. 595, 29 So.2d 452; Jennings v. State, 118 Miss. 619, 79 So. 814; Pittman v. State, 147 Miss. 593, 113 So. 348; Shows v. State, 103 Miss. 640, 60 So. 827.
VI. The sentence given appellant was not excessive, but was within the province of the trial court. Griffin v. State (Miss.), 195 So. 472; Lester v. State, 209 Miss. 171, 46 So.2d 109; McCaffrey v. State, supra.
Appellant Curtis Richey was indicted for murder and was convicted of manslaughter in the Circuit Court of Lee County.
Appellant contends that the verdict of the jury is not supported by the evidence and is against the great weight of it. But we think that the record amply supports the conviction. The State's case, which the jury manifestly accepted, was supported by two eyewitnesses and another person who did not see the actual stabbing, but was present at the preliminaries. According to this version, appellant was angered at J.B. Jones, because of a common interest in the same woman. At a time when he was not in any immediate or apparent danger of great bodily harm and when Jones was unarmed, appellant turned sharply and stabbed Jones who was walking with others behind Richey. On the other hand, appellant contended that he acted in necessary self-defense; that both he and Jones had open knives and were cursing each other; and that when he was walking away from Jones the latter stabbed at him and cut the back of his shirt, in response to which Richey turned and in necessary self-defense killed him. (Hn 1) This conflicting testimony was for the consideration of the jury, which found against appellant.
(Hn 2) Richey also complains of instructions given the State on the theory of murder. But appellant was convicted of manslaughter, and it has been held many times that one who is convicted of manslaughter cannot complain of the giving of a murder instruction, as he was not prejudiced by it. Crockerham v. State, 202 Miss. 25, 30 So.2d 417 (1947); Denham v. State, 67 So.2d 445 (Miss. 1953). (Hn 3) Nor was there any error in refusing appellant certain requested instructions on self-defense, since he was given four detailed instructions on that theory. Refusal of defendant's instruction concerning his right to use a deadly weapon in self-defense was correct. Molphus v. State, 124 Miss. 584, 597, 87 So. 133 (1920); Durham v. State, 158 Miss. 833, 842, 131 So. 422 (1930). The sufficiency of appellant's defense was amply submitted to the jury.
(Hn 4) It is contended that certain arguments of the district attorney to the jury were reversible error. We have given this point careful consideration, and have concluded that under the facts and circumstances the argument, although improper, did not prejudice appellant's rights. The weight of the evidence would indicate that the offense committed was murder rather than manslaughter, but the jury convicted appellant of manslaughter with a recommendation of mercy. The trial court instructed the jury to disregard the most objectionable part of the argument complained of, and the balance of it had some basis in fact. So we do not think that appellant suffered any prejudice from the argument in question. Rule 11, Mississippi Supreme Court; Herrin v. State, 201 Miss. 595, 602, 29 So.2d 452 (1947); Pitts v. State, 211 Miss. 268, 51 So.2d 448 (1951).
Affirmed.
Roberds, P.J., and Lee, Holmes and Arrington, JJ., concur.