Opinion
No. 34074.
March 11, 1940.
HOMICIDE.
Where evidence would support conviction of manslaughter but did not support conviction of murder, refusal of defendant's request for an instruction limiting his conviction to manslaughter was error.
APPEAL from the circuit court of Carroll county; HON. JNO. F. ALLEN, Judge.
S.E. Turner and J. Crawford Neill, both of Carollton, for appellant.
The facts show that the two men had only known one another five or six days and had never had any trouble before and that they like boys or young men got into the fight which resulted seriously. That under the law and the facts in this case we take the position that the defendant was not guilty of murder and the court should have so instructed the jury. We therefore contend as stated in the suggestions of error that the court should have instructed the jury not to convict the defendant of any crime greater than manslaughter, which the court refused. If the court should so have instructed, then as a matter of course all instructions on the charge of murder should have been refused.
The facts in this case show that this matter as a whole could not be murder, wherefore we respectfully submit that this cause should be reversed and remanded.
W.D. Conn, Jr., Assistant Attorney-General, for appellee.
Appellant argues that these two negroes had not known each other longer than just a few days and that it would be unnatural for one in that length of time to have concluded to kill the other. If we understand the law and human nature, malice can be suddenly formed and no particular time is required for deliberation to make a killing murder. On the evidence contained in this record now before the court, the jury could have well believed that appellant bided his time after the previous difficulty with deceased and struck and killed him with his knife at the time when the deceased was not expecting any assault from him. The jury could have found a justification in the evidence for a verdict of manslaughter as well. The defendant's testimony, both on direct and cross-examination with reference to the "break," which he says deceased made at him, does not indicate that the assault which he made was justifiable in any sense of the word. We do not believe that his explanation, of itself, is sufficient for the court to say, as a matter of law, that the presumption of malice which attends the deliberate use of a deadly weapon, has been overcome. We submit that this conviction should be affirmed.
This is an appeal from a conviction of murder. The evidence would support a conviction of manslaughter, but does not support a conviction of murder; consequently, the court erred in not granting the appellant's request for an instruction limiting his conviction to manslaughter.
Reversed and remanded.