Opinion
No. 31333.
June 11, 1934.
1. HOMICIDE.
Evidence held to sustain conviction for manslaughter.
2. CRIMINAL LAW.
Giving of instructions after argument has begun is improper but not necessarily reversible error.
3. CRIMINAL LAW.
Amendment of instruction so as to make it proper statement of law after district attorney's closing argument held not error, where court required district attorney to read corrected instruction to jury and offered counsel for accused an opportunity to reply and to make any comments thereon they desired without limit of time.
4. CRIMINAL LAW.
Where decedent's clothing at time of killing was admitted in evidence without objection in murder prosecution, there was no error in permitting jury to take clothing to consultation room.
5. CRIMINAL LAW.
Permitting rebuttal evidence in murder prosecution to contradict accused's witness on immaterial and irrelevant matters held not reversible error, particularly where evidence was admitted without objection, and only a general motion was made to exclude part of such evidence.
APPEAL from Circuit Court of Tate County.
E.D. Dinkins, of Senatobia, for appellant.
The testimony of the defendant made out a complete case of self-defense. It was supported by the physical facts and not materially contradicted. In such case this court has never hesitated to reverse or discharge a defendant according to the particular facts presented.
Houston v. State, 117 Miss. 311; Patty v. State, 126 Miss. 94; Byrd v. State, 154 Miss. 742, 123 So. 867; Washington v. State, 155 Miss. 404, 124 So. 480; Grey v. State, 158 Miss. 266, 130 So. 150.
To permit instructions to be changed at the last moment before the jury is a practice that should be condemned, and to permit bloody clothing to be taken into the jury room at the special request of the district attorney, that the jury should examine it with the view of determining the position of the deceased when shot, occurs to me as being distinctly in the face of the holdings of this court that it is not error for the clothing of a deceased to be taken out by the jury unless there is some evidence that it was experimented with.
Where impeachment is undertaken on a collateral or immaterial matter, objection is not required to be made, but it was made in a motion to exclude the testimony of the witness after it had been heard.
Barnes v. State, 152 Miss. 250, 119 So. 172; Wallace v. State, 151 Miss. 862, 119 So. 796; Cofer v. State, 158 Miss. 493, 130 So. 511.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
A motion for a new trial was filed, setting up six different grounds therefor. Conspicuous by its absence is the ground that the verdict is contrary to the weight of the evidence.
Justice v. State, 170 Miss. 96.
It is true, of course, that the practice of giving instructions after argument is begun has been many times condemned by this court, but this court has indicated in several cases that if the opposing party is given an opportunity to answer the matter obtained in an instruction and to obtain an instruction along the same line if he desires, and to argue the matter to the jury, it would not be reversible error to give an instruction after the argument has been begun.
As indicating that the procedure would not have constituted reversible error, see: Boykin v. State, 86 Miss. 481, 38 So. 725; Maxey v. State, 140 Miss. 570, 106 So. 353; Nelson v. State, 129 Miss. 288, 92 So. 66; Montgomery v. State, 85 Miss. 330; King v. State, 121 Miss. 230, 83 So. 164; Wellington Wood v. State, 64 Miss. 761.
The rebuttal impeaching testimony of the state is next referred to, and it is insisted here that such testimony had the effect of contradicting witnesses for the defendant in immaterial and irrelevant matters, and therefore it was erroneously admitted. There were no objections to this testimony.
Appellant was indicated and tried for the murder of her husband, and was convicted of manslaughter and sentenced to the state penitentiary for ten years. She admitted the killing, but testified that she shot the deceased at the conclusion of an extended wrangle or fuss, in which the deceased repeatedly threatened her life and at a time when she believed her life was in danger at his hands.
For the state the testimony was to the effect that the appellant shot her husband when he was unarmed and running from her, while she was following close behind him. The appellant testified that when she shot her husband, he was pointing a shotgun at her in a threatening manner.
The first contention of appellant is that the evidence was insufficient to sustain the verdict of conviction. The evidence as to the circumstances of the killing was sharply conflicting. The evidence for the state, if believed, was amply sufficient to sustain the verdict; and it was the province of the jury to pass upon the conflicting evidence and the credibility of the witnesses.
The appellant next complains of the fact that during the closing argument of the district attorney, the court permitted an instruction for the state to be amended by inserting in two places therein the words "not in necessary self-defense." The practice of giving instructions after the argument has begun has been repeatedly condemned by this court; but it is not necessarily reversible error so to do. In the case at bar no new instruction was given, but a mere omission in an instruction already read to the jury was supplied. Without the amendment the instruction was subject to criticism, and the addition of the words made it a correct statement of law and placed an added burden on the state. The special bill of exceptions, by which the action of the court in permitting the amendment was made of record, shows that, when the amendment was made, the court required the district attorney to read the corrected instruction to the jury, and offered counsel for the appellant an opportunity to reply thereto and to make any comments thereon that they might desire without limit of time. Under these circumstances, no reversible error was committed in permitting the amendment.
The appellant next complains of the request made by the district attorney in his closing argument, that the jury take the clothing worn by the deceased at the time he was shot and examine it with a view of determining his position when the fatal shot was fired. No objection was made to this request at the time it was made; but there was an objection to this clothing being taken to the jury room. In the case of Triplett v. State, 159 Miss. 365, 132 So. 449, it was held that, in a murder trial, the clothing worn by the deceased at the time of the killing is admissible in evidence if it is in substantially the same condition as when it was taken from the body, and that it is not error to permit the jury to take garments introduced in evidence into their consultation room for use and examination during their deliberation. In the case at bar the clothing was admitted in evidence without objection on the part of appellant, and no error was committed in permitting the jury to have these garments in their consultation room.
Finally, the appellant contends certain rebuttal testimony was improperly admitted for the reason that it tended to contradict a witness for the appellant about immaterial and irrelevant matters. The rebuttal evidence complained of was given by three witnesses. No objection whatever was made to the testimony of two of them. As to one question propounded to the third witness, Catherine Lentz, an objection was interposed, but it was immediately withdrawn. At the conclusion of the testimony of this witness, there was a motion to exclude it. The court ruled that since the objection had been withdrawn when the testimony was offered, the motion to exclude would be overruled. Aside from the fact that the testimony complained of would not alone constitute reversible error, there was no error in overruling the general motion to exclude the same, since it was admitted without objection. Wright v. State, 82 Miss. 421, 34 So. 4.
We find no reversible error in the record, and the judgment of the court below will therefore be affirmed.
Affirmed.