Opinion
No. 36164.
October 14, 1946.
1. HOMICIDE.
In murder prosecution, testimony of constable that accused had lost pistol used in homicide while fleeing from the scene, and that accused was called by his father into the house from nearby bushes, was properly admitted though incriminatory, since evidence is not prejudicial merely because incriminatory.
2. HOMICIDE.
When case is one of murder or complete justification, trial judges should not give instructions on manslaughter.
3. HOMICIDE.
Where defendant was convicted of manslaughter in accord with manslaughter instruction, and evidence would have warranted conviction of murder, the instruction, even if not authorized by evidence, did not constitute reversible error.
APPEAL from the circuit court of Monroe county, HON. THOS. H. JOHNSTON, Judge.
McFarland Holmes, of Aberdeen, for appellant.
This case should not be affirmed on the testimony of a ten year old child.
Standard Oil Co. et al. v. Henley et al., 199 Miss. 819, 25 So.2d 400; Anderson v. State, 199 Miss. 885, 25 So.2d 474.
We are familiar with the cases decided by this Court that upon a conviction for manslaughter, where the testimony would sustain a verdict of guilty of murder, and where there are no elements of manslaughter involved, it is harmless error of which the appellant cannot complain that a jury convicted him of manslaughter; but we submit that in the case at bar there is no evidence to sustain a conviction for either murder or manslaughter except on the testimony of this ten year old negro boy, Arthur Smith, and the giving of the manslaughter instruction by the trial court in the case at bar was highly prejudicial to appellant. There certainly is no element of manslaughter present anywhere in this record and, therefore, the case should be reversed and the appellant discharged. If we are incorrect in this contention, we then urge that the case should certainly be reversed and remanded so that this appellant can have a new trial under the indictment charging him with murder.
In every criminal case a defendant should be tried upon the issues made up by the evidence and should not be convicted on a compromise verdict as was done in this case, the appellant having been convicted of manslaughter where no element of manslaughter is present anywhere in this record.
The court erred in permitting B.M. Bittle, the constable of district No. 4 and deputy sheriff of Monroe County, Mississippi, over the objection of appellant, to testify in this cause, his testimony being incompetent, irrelevant and prejudicial to the appellant and should have been excluded.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
In an action at law, where there has been a trial and verdict for plaintiff, if the defendant makes no motion for a new trial, the court will presume that sufficient evidence was before the jury to justify the verdict.
Gale v. Lancaster, 44 Miss. 413.
What may have been the evidence on the trial, or what questions may have arisen and been decided during its progress, the court cannot know, in the absence of all exceptions in the record, but it will be presumed that every fact essential to a verdict was proved before the jury.
Gale v. Lancaster, supra.
No harm could come to appellant from the testimony of the witness Bittle. The jury were perfectly competent to weigh and value the evidence, and certainly there is no cause for reversing the case on this ground.
A felonious homicide is "manslaughter," and not murder, first, when the defendant killed the deceased either in the heat of passion, without malice, by the use of a deadly weapon, without authority of law, and not in necessary self-defense; or, second, when the defendant killed the deceased without malice, under the bona fide belief, without reasonable cause therefor, that it was necessary for him to do so in order to prevent the deceased from inflicting death or great bodily harm upon him; or, third, when the defendant unnecessarily killed the deceased while resisting an attempt by the deceased to commit a crime.
Williams v. State, 127 Miss. 851, 90 So. 705.
There is ample evidence to sustain the conviction of manslaughter. As for the contention that their verdict should be either murder or not guilty, the jury found that the killing was wrongful and not justified under the law as given them by the court and the appellant cannot complain that he was convicted of a lesser offense than that for which he should have been convicted.
In the present case the appellant did make a motion for a new trial but he did not set out as one of the particular grounds of said motion that the verdict was contrary to the overwhelming weight of the evidence. This was necessary if he intended to rely on this point.
Flynn v. Kurn, 183 Miss. 413, 184 So. 160; Saenger Theatres v. Faulk (Miss.), 193 So. 910.
Appellant was indicted for murder and convicted of manslaughter. We are of the opinion that the evidence warrants a verdict of guilt. Only two other assignments need be noticed.
The first concerns the alleged error in allowing constable Bittle to testify regarding the search for and arrest of appellant, and which disclosed that appellant had lost the pistol used in the homicide while fleeing from the scene, and that the appellant, who was not found in the home of his father, was called by the latter into the house from nearby bushes. We find no error in admitting this testimony. If the circumstances implied flight by the accused, this would be a relevant circumstance; to the extent that his surrender was voluntary, it was available to appellant's advantage. Evidence is not prejudicial merely because incriminatory; it is only when irrelevant words or acts are allowed to intrude upon and deflect the normal course of reasonable deduction. Conclusions thus reached become colored by the witness or jury to harmonize with prejudgments dictated by an existing bias.
The next assignment relates to the granting of a manslaughter instruction to the State. This procedure has been provocative of much discussion by the courts in cases where the evidence shows no element of manslaughter. When a case is one of murder or complete justification, trial judges ought not to give to the State nor the defendant instructions upon manslaughter. Yet, we have held repeatedly that where the evidence would warrant a conviction of murder, a verdict of manslaughter will be allowed to stand even though there were no elements thereof shown and no instruction so authorizing such verdict.
The contention has been set at rest by Adams v. State, 199 Miss. 163, 24 So.2d 351, where precedent authorities are collected and cited.
Affirmed.
Sydney Smith, C.J., did not participate in this opinion.