Brown v. State

Oct 15, 1910
Versions:54 So. 305
98 Miss. 786
McWillie, special judge,

delivered the opinion of the court.

The appellant, on an .indictment for the murder of Alonzo Addison, was 'convicted of manslaughter. The deceased, a youth under twenty years of age, was at the time of the homicide engaged, with two companions, in stealing watermelons by night from the melon patch of a brother of the appellant. It is claimed on behalf of the appellant that the court below erred in submitting to the jury the question of whether or not he was guilty of murder; manslaughter being the only crime of which he could be convicted, since the deceased was himself-at .the time offending against the .law.

. Section 1237, Code of 1906, is relied on in support of ■this position. We quote it as follows: “Killing unnecessarily, while resisting effort of slain to commit felony or do unlawful act, etc. — Every person who shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony or to do any unlawful act or after such attempt shall have failed, shall be guilty of manslaughter.” With the .propriety of. returning an indictment, valid upon its face, this court can have, no concern, in the absence of any .showing of misconduct in the proceedings before the grand jury. The indictment being duly returned, the accused was triable on it, and the objection founded upon the above statute can only relate to. the proceedings of the trial. .

. The greater charge of murder includes the lesser charge of manslaughter, and .the conviction of the lesser crime was in any event within the statute. But on the trial there was evidence tending to show facts which fully warranted the court below in submitting to the jury the question of whether or not the appellant was guilty of the greater crime of murder. The malice essential to a conviction of murder may be ascertained from previous threats and measures taken in prepara*795tion, and, too, may arise suddenly and be implied from circumstances, as from the intentional use at the outset of a deadly weapon. There was evidence that appellant had, on the day preceding the night of the tragedy, threatened that the next trespasser upon the melon patch would be found ‘there the next morning, which threat, while not directed against the deceased individually, was directed against a class of which he unfortunately became a member, and that at the time of the killing appellant was in ambush, armed with a double-barreled shotgun, and fired upon the deceased when the latter was only ten or twelve steps distant and in an attitude wholly inoffensive, except as to the prosecution of the trespass upon the melon patch, and deceased and his companions all being unarmed. It is true that the gun was loaded with.bird shot, and might not, when'so loaded, have been a deadly weapon when fired from a greater distance; but, as the result showed, and as the appellant must be treated as knowing, it was a deadly weapon when directed against a human being at such short range.

The case of Long v. State, 52 Miss. 23, in which the statute above mentioned was considered, affords no sanction for the view that upon an indictment for murder the fact that the unnecessary killing was of one engaged in the commission of a misdemeanor precludes an inquiry into the question of malice, in order to determine whether the crime was' murder or manslaughter. In a murder trial, where self-defense was set up and the statute in question was relied on, the case being parallel with the one at bar in so far as the power of the jury to convict either of murder or manslaughter was concerned, this court declared: “Code 1892, § 1159, has never yet been and never will be applied, in a case like this, to reduce a homicide from murder to manslaughter.” McMaster v. State, 29 South. 522. In another murder case, where the statute does not clearly appear to have been relied on, this court condemned an instruction for the state on *796the ground that a killing in self-defense is not an unnecessary killing; and it may be that the case last cited was predicated on the fact that a killing cannot be both necessary and unnecessary. Brandon v. State, 75 Miss. 904, 23 South. 517.

It is undeniable, however, that a trespasser engaged in the commission of a misdemeanor may be the subject of a murder, as well as another, and it is a question for the jury on the trial under an indictment for murder to say, on a consideration of all the facts and circumstances, including the character and extent of the means employed against the trespasser, together with the manner of their application, whether the offense is manslaughter under the statute or the graver offense of murder. In the case of Ayers v. State, 60 Miss. 709, the right of a property owner to arm himself to resist the commission of trespass is recognized; but his right to use a deadly weapon is limited to cases where he has to protect his own life from a felonious assault by a resisting trespasser.

In his closing argument for the state the district attorney commented in very strong language upon the failure of the appellant to introduce as witnesses his father, W. S. Brown, and his brother, Henry Brown, both of whom lived but a short distance from the melon patch, though in separate houses, and were the first persons to reach the scene after the occurrence of the homicide. The circuit judge declined to intervene on the objection of the attorneys of the accused, and his action in overruling their objection was duly excepted to. It appears, from the remarks of the district attorney to which the objection was offered, as well as in the testimony, that both the father and brother of the accused were in attendance upon the trial and as accessible to the state as to the accused. Under such circumstances, the remarks of the district attorney were unwarranted and constitute reversible error. This precise question *797has never been heretofore decided in this state, but elsewhere authority is not lacking. The rule that the failure of either party to examine a witness equally accessible to both offers no foundation for a prejudicial inference applies to both civil and criminal proceedings. The cases of Crawford v. State, 112 Ala. 661, 21 South. 64; State v. Cousins, 58 Iowa 250, 12 N. W. 281, and State v. Rosier, 55 Iowa 517, 8 N. W. 345, cited by counsel for the defendant, are criminal cases in which it was so held. To these may be added the following: Brock v. State, 123 Ala. 24, 26 South. 329; State v. Fitzgerald, 68 Vt. 125, 34 Atl. 429; People v. Quimby, 6 Cal. App. 482, 491, 92 Pac. 493. Vide, also People v. Fowler, 104 Mich. 449, 62 N. W. 572. The following civil cases are to the same effect: Mutual, etc., Co. v. Perkins, 81 Ark. 87, 98 S. W. 709; Scoville v. Baldwin, 27 Conn. 316; Sears v. Duling, 79 Vt. 334, 65 Atl. 90; Malone v. Gates, 87 Mich. 332, 339, 49 N. W. 638; Jordan v. Austin, 161 Ala. 585, 50 South. 70; Louisville, etc., R. R. Co. v. Sullivan, etc., Co., 126 Ala. 95, 27 South. 760.

In the case of Story v. Railroad Co., 70 N. H. 364, 48 Atl. 288, the general rule that no inference can be drawn because a witness equally at the command of each party is not called was fully recognized, though held to be inapplicable to the case of a railroad company failing to produce an engineer, its employe, who was the very man who caused the action in question. In the case of Western, etc., R. Co. v. Morrison, 102 Ga. 319, 29 S. E. 104, 40 L. R. A. 84, 66 Am. St. Rep. 173, another civil case, the contrary view was expressed by a majority of the court; but the dissenting opinion of Chief Justice Simmons is stronger in both reason and authority than that of the majority of the court, and is really the fullest and ablest dissertation on the subject that a diligent search of the books has afforded. Among other matters considered, he shows quite plainly that the fact that the persons not examined as witnesses are relatives of the *798accused affords no ground for a prejudicial inference, and thereupon no excuse for comment on the failure of the accused to put them on the stand.'

There was in the present case evidence for the accused tending to prove an alibi, and also evidence tending to impeach the only two eye-witnesses of the homicide, upon whose testimony rested the identification of the accused as the slayer. The case was, therefore, one where the jury were not constrained to convict of either murder or manslaughter; and it was in his closing argument that the district attorney made use of the objectionable remarks.

As the case is to go back for a new trial, we refrain from all comment on the evidence, but dispose of the question arising under section 1237, Code of 1906, in order that there may be no misapprehension on the subject when the case is tried anew.

Reversed and remanded.