Opinion
October 11, 1948.
1. Trial — instruction, error in, harmless when.
Although an instruction may be erroneous the judgment of conviction will not be set aside where the guilt of the accused is clearly proved by undisputed testimony, there being in such a case no miscarriage of justice.
Headnote as revised by Montgomery, J.
APPEAL from the circuit court of Washington County, ARTHUR JORDAN, J.
Dyer Campbell, for appellants.
We respectfully suggest that the safer course, as was said by this court in Ellis v. State, 33 So.2d 839, is to follow the general rule set forth in 53 Am. Jur. 494, Section 639, which requires that in all criminal prosecutions the instructions to the jury shall "give the law as to the offense charged and the elements thereof."
Furthermore, since the Ellis case was decided, this court has twice ruled upon the proposition presented here. In Rogers v. State, 36 So.2d 155, 156, an appeal from a conviction of rape, the instruction complained of did define the crime charged and the conviction was reversed on other grounds. However, the objection to the instruction was that
". . . the jury was referred to the indictment for the elements of the crime, whereas the instruction should have set them out within itself. We have condemned such defect in instructions. Upton v. State, 143 Miss. 1, 108 So. 287; Ellis v. State, Miss., 33 So.2d 838, not yet reported in State Reports."
Similarly in Ball v. State, 36 So.2d 159, 160, the challenged instruction also contained a definition of the crime charged and the conviction was affirmed. Nevertheless it was said:
"As to the second proposition, wherein it was complained that the instruction for the State contained the words `as charged in the affidavit in the case,' it is to be conceded that this Court has condemned instructions which would require the jury to go to the pleadings, affidavit or indictment to ascertain what the charge may consist of, . . ."
Accordingly we urge that, for failure of the single instruction in the instant case to give the law as to the crime of grand larceny and the elements thereof, the judgment of the court below should be reversed and the cause remanded for a new trial.
The granting of said instruction was also error for the further reason that the jury might understand from said instruction that they could not find defendant guilty without also finding the other guilty.
The rule applicable under this point is set forth in 23 C.J.S. 874, Section 1294, and in 16 C.J. 1028, Section 2461b, and 1104, Section 2591(3), citing, among other cases, Davis v. State, 75 Miss. 637, 23 So. 770.
In the Davis case this court held that where two or more persons are jointly indicted and tried before the same jury for the same offense, not joint in its nature, "The jury may, if the evidence warrants the difference in the findings, convict one, acquit another, and disagree as to a third." But it was expressly stipulated in the opinion that in such case "the findings must be responsive to the evidence."
In 23 C.J.S., supra, the rule in such case is stated thus: ". . . an instruction which submits only verdicts finding all defendants guilty or all not guilty, or which, in other words, makes the guilt or the innocence of one dependent on the guilt or the innocence of the others is erroneous."
The record in the case at bar reflects that the appellants were jointly indicted and tried before the same jury for the same offense, not joint in its nature, to-wit: grand larceny. The single instruction given to the jury directed: ". . . if you believe from the evidence beyond every reasonable doubt that the defendants are guilty as charged in the indictment, you should so find by your verdict, and in that event the form of your verdict should be: "`We the Jury find the defendants guilty as charged in the indictment.'"
By the rule set out above the propriety of this instruction depends upon whether or not the evidence in the case at bar clearly indicates that if one of the appellants was guilty, the other was necessarily guilty too. See 16 C.J. 1104, footnote 99(a). In other words, is the case at bar on all fours with that of Davis v. State, supra, where the only proof of guilt was the evidence of one witness which was identical in every detail against the two defendants? We think that an analysis of the proof in the record herein requires a negative answer to this query.
R.O. Arrington, Assistant Attorney General, for appellee.
Neither of the appellants testified in their own behalf nor was any other witness offered. Therefore, the State's case was undisputed.
Rule 11 of the revised Rules of the Supreme Court of Mississippi is as follows: "No judgment shall be reversed on the ground of misdirection to the jury, or the improper admission or exclusion of evidence, or for error as to the matter of pleading or procedure, unless it shall affirmatively appear, from the whole record, that such judgment has resulted in a miscarriage of justice."
In Wexler v. State, 167 Mont. 464, 142 So. 510, the court said: "Before this court will reverse a cause, it must be satisfied of two facts: First, there must be error; and, second, the error must be prejudicial to the appellant. Jones v. State, 104 Miss. 871, 61 So. 979, L.R.A. 1918B, 388; Patterson v. State, 106 Miss. 338, 63 So. 667; House v. State, 121 Miss. 436, 83 So. 611; Calicoat v. State, 131 Miss. 169, 95 So. 318; Lewis v. State, 132 Miss. 200, 96 So. 169; Goins v. State, 155 Miss. 662, 124 So. 785; Comings v. State, 163 Miss. 442, 142 So. 19."
I submit that the guilt of the appellants was clearly established and not disputed and that the appellants were not prejudiced by any erroneous instruction granted, and under the authorities above cited, the judgment should be affirmed.
Appellants were convicted in the court below on a charge of grand larceny and were sentenced to serve a term of five years in the State Penitentiary. From this they appeal to this Court.
(Hn 1) Amongst the errors complained of is the giving of the only instruction to the jury, which was given at the instance of the State and is in the following form: "The court instructs the jury for the State that if you believe from the evidence beyond every reasonable doubt that the defendants are guilty as charged in the indictment, you should so find by your verdict, and in that event the form of your verdict should be: `We the jury find the defendants guilty as charged in the indictment.'" The defendants requested no instruction. It is argued that the instruction is erroneous, because (1) it did not define within itself the elements and nature of the crime charged but only referred the jury to the indictment; and (2) the jury might understand from the instruction that they could not convict one defendant without convicting the other.
Our attention has been called to Ellis v. State, Miss., 33 So.2d 838, 839; Upton v. State, 143 Miss. 1, 108 So. 287; Thompson v. State, 158 Miss. 121, 130 So. 112, but after a careful examination of the evidence, we are so overwhelmingly convinced of the guilt of the defendants that we are of the opinion that from this whole record the guilt of each of the defendants affirmatively appears and that the judgment of the court below was not a miscarriage of justice.
As to all of the errors complained of, we are convinced that, if errors they were, they were harmless in the face of the testimony in this record, and that this case must be affirmed under the provisions of Rule 11, of the rules of this Court: which reads as follows:
"No judgment shall be reversed on the ground of misdirection to the jury, or the improper admission or exclusion of evidence, or for error as to the matter of pleading or procedure, unless it shall affirmatively appear, from the whole record, that such judgment has resulted in a miscarriage of justice."
In Wilson v. State of Mississippi, Miss., 37 So.2d 19, an instruction similar to the one herein complained of is held to be reversible error under the indictment in that case, but in that case the judgment is being reversed also for errors other than the instruction, which errors may have a definite bearing on another conviction. Here those questions are not presented, and it is our judgment that no honest jury could do otherwise than return a verdict of guilty against each of these appellants upon the testimony in this record.
Affirmed.