Johnson v. State, 78 Miss. 627

Johnson v. State

78 Miss. 627 | Miss. | 1900

Calhoon, J.,

delivered the opinion of the court.

Jacob Johnson was convicted of the murder of Ella Johnson, and sentenced to death. It was a murder without any pretense of justification, excuse or alleviation. The man and the woman had lived for a number of years in adulterous cohabitation, with occasional separations. On the last breach the woman had left him. He persistently hunted her up. In his diabolical and revengeful pursuit, he saw one Robert Kaiser, inquired of him whether the perpetrator of a recent murder had been arrested, and said he was going to kill somebody, and not a man, but a woman. An hour or so before he did the killing he informed one Sam Martin that he was going to kill some one. About half after five o’clock in the afternoon, after hunting for her all day, he found her, seized her by the left arm and shot her twice with a pistol, killing her almost instantly, and then left, and was arrested some ten days after-wards in Louisiana, to which state he had fled. All this is undisputed.

The district attorney wisely asked but one instruction, and it was wholly unobjectionable on the facts, though we think it *630wiser always to add the words, “and. not in necessary self-defense.” In this case there is no evidence squinting in the remotest degree at any act of the woman to warrant any imaginative fancy of self-defense.

Defendant’s counsel, in his argument, bases his hope of reversal solely on the refusal of an instruction asked by him, as follows: “The court instructs the jury that they may find one of the following verdicts, to wit: (1) Guilty as charged, upon which the defendant will be sentenced to death; (2) guilty as charged, and fix his sentence at imprisonment for life, which will commit him to imprisonment for the balance of his life; (3), guilty of manslaughter, upon which the court will impose such term of imprisonment as he may deem proper; (4) not guilty.”

This instruction was, properly refused. To say to the jury, you “may find” a verdict of guilty of manslaughter, would mean that they might properly so find, whereas there is absolutely nothing in the evidence to warrant such a finding.' The fact that the jury might, by mere brute power, have so found, is no reason the court should tell them so. Besides, the instruction does not define manslaughter, and it is faulty in stating that the court had control of the punishment of .that crime. The only instance in which it is allowable to say anything to the jury about the quantum of punishment is, in capital cases, to inform them, where the statute so authorizes, that they may, if they agree on it, fix the sentence at imprisonment in the penitentiary for life, if they convict.

It follows that the instruction as a whole could not properly have been given. It is true the court might have modified it by erasing the manslaughter clause, but it was under no legal obligation to do this, and it was quite improbable that astute counsel wanted it done. If he had, he would, no doubt, have asked another free from the objection. He. no doubt foresaw the same result in either case, and preferred the chance of error in the refusal. - .

*631A court may not, under our statute, give instructions not asked in writing, and need not modify those so asked unless it sees fit to do so. Lawyers, as a rule, prefer that the instructions they ask be given as asked, without modification, or refused, but, even then, the court may modify if it chooses. Walton v. State, 57 Miss., 533, has no pertinency. There the refused instruction was sound, and the error in refusing was not cured by the state’s instruction.

Affirmed, and the day of execution fixed for Wednesday, April 8b, 1901.