113 So. 627 | Miss. | 1927
During the latter part of October, 1925, E.B. Blalock and his son, W.B. Blalock, killed Lee McGraw. It appears from the record that Lee McGraw and his brother were traveling along the public highway in a wagon drawn by mules. Blalock and his son came up behind in a truck, and requested McGraw to give them more road. McGraw seems to have replied that they had one-half of the road, and that they could pass if they wanted *3 to. Blalock asked McGraw if he was armed, to which he replied that he was not, that he did not need a pistol, and to get out and they would settle it. From this a difficulty arose in which Lee McGraw was killed, being shot twice by E.B. Blalock, and his throat cut by W.B. Blalock. The Blalocks seem to have been wounded in the difficulty.
Among other instructions the court charged the jury on the form of the verdict in the following language:
"The court instructs the jury that in this case their verdict will be in one of the following forms, to-wit: (1) `We, the jury, find the defendant guilty as charged.' In this event, the court will sentence the defendant to be hanged. (2) `We, the jury, find the defendant guilty as charged, and fix his punishment at life imprisonment in the state penitentiary.' (3) `We, the jury, find the defendant guilty as charged, but certify that we cannot agree on the verdict.' In this event, the court will fix the punishment at life imprisonment in the state penitentiary. (4) `We, the jury, find the defendant guilty of manslaughter.' In this event, the court will fix the punishment at imprisonment in the state penitentiary for a term of years, not to exceed twenty years. (5) `We, the jury, find the defendant not guilty.'"
It is urged that the use of the words "will be," instead of "may be," should cause a reversal of the case, because it shuts the jury off from disagreeing on a verdict; that section 1512, Code of 1906 (section 1270, Hemingway's Code), prescribes the power of the jury to fix punishment at life imprisonment in capital cases, and the word "may" is used in the statute, and that the words "will be," instead of "may be," directs the jury to return a verdict under one of the forms set out in the above instruction, and denies them the right to disagree altogether, and the defendant had the right to have the jury understand that they had the right to disagree.
We think the instruction, for this reason, does not constitute reversible error: That the instruction is construed *4 to mean that, if the jury returns a verdict in the case, it will be for one of the hypotheses stated in the instruction, and that it did not involve the jury's right to disagree, because of irreconcilable opinions entertained individually by different jurors. The instruction ought to have been more carefully drawn, but we do not think it was misleading to the jury in this particular.
It is next argued that the instruction on manslaughter is erroneous, in that it fixes the kind and amount of punishment that would be inflicted, or could be inflicted under the law, for that crime, whereas the jury had no right to be informed of the punishment, or to consider it. The cases of Johnson v. State,
"We think the granting of this charge reversible error, because of its third clause. It is faulty in stating the punishment, and that in its milder forms. It looks too much like an invitation to the jury to compromise on the lesser offense. The jury have nothing to do with, and should be told nothing of, the character or degrees of punishment in any case whatever, except in murder, in *5 the instance of the first, second, and fourth clauses of the charge, because of the statute. It may be that this charge and it alone, produced the manslaughter verdict."
In the case before us, the instruction on the punishment for manslaughter does not call the jury's attention to the minimum punishment, and does not, by inference, lead the jury to believe that, if so convicted, a light punishment will be inflicted. We think this distinction important between the Ellerbe case and this one. It is one thing to hold out the definition of a minimum punishment, and another to tell the jury of a maximum punishment. It was, in our opinion, the singling out, in the Ellerbe case, the minimum features of punishment for manslaughter, that produced the reversal therein. It is difficult to see how it prejudices the right of a person being tried for a crime for the jury to know what the punishment is that may follow a conviction for that crime. It is true that the court administers the punishment, except in capital cases, and some others not here involved, and that the jury should not be told anything in reference to what that punishment will be; but we fail to see how the present instruction prejudiced the defendant's rights. It certainly did not lead the jury to believe he would be dealt with leniently. The maximum was stated, and the minimum was left out.
In so far as the effect on the jury is concerned, we cannot see it had any harmful effect upon his rights. Anything less than twenty years for manslaughter is in the discretion of the court, and it does in no wise prejudice the defendant's rights for the jury to know what the maximum would be. At least, we think it is apparent that his rights were not so prejudiced as to cause the court to reverse a judgment therefor. Stevenson v. State,
It is next contended that no element of manslaughter is involved in the killing; that it is either murder or self-defense, and that there is no middle ground, and no element *6
authorizing the giving of an instruction of manslaughter; and the cases of Virgil v. State,
This court, in Calicoat v. State, 95 So. 318, andStrickland v. State, 95 So. 318, both in
We decline to reconsider this proposition. It is one that, in view of the court's position in several past cases, ought to remain settled, and we decline to disturb the holding therein. We followed that in several cases, viz. Stevenson v. State,
It follows, from what we have said, that there is no reversible error in the record, and the judgment of the court below is affirmed.
Affirmed.