Moore v. State

86 Miss. 160 | Miss. | 1905

Cox, J.,

delivered the opinion of the court.

Appellant was tried on an indictment for murder, and convicted of manslaughter. Numerous errors are assigned. Some of these it is not necessary now to consider, because, in the light of the verdict, the action of the court complained of, even if erroneous, did not prejudice appellant. If the court erred in admitting testimony relative to the altercation in the barber shop and to the threat at the drug store, this evidently did not affect the result. The only effect of this evidence would be to show malice in the killing. The verdict of the jury involves a finding that there was no malice and acquits of murder.

There was no error in excluding the testimony of Dr. O. A. Harrison, in which he narrated a statement made by the deceased, after the shooting, as to which shot struck him and as to who was to blame for the shooting. This statement was not a part of the res gestae, was not made under a sense of impending death, and is not within any of the exceptions to the rule against hearsay testimony. The court erred in admitting this over the objection of the state, and did not err in afterwards excluding it sua sponte.

There was no error in admitting the testimony of McNair, George and Lon Montgomery, and Sam Sheely touching the question whether or not Poole was armed at the time of the difficulty. Their testimony tended to show that deceased was not armed, and was proper to be considered by the jury for whatever it might be worth in passing upon the testimony of appellant that when he first fired on deceased he was reaching behind him, or to his pocket, as if to draw á weapon.

The state was allowed to show by Mrs. Poole, mother of deceased, over defendant’s objection, that she had told him to hurry back before dinner; that she would have the money ready for him, which she testified, without objection, she had told him she would give him to pay his expenses to Vicksburg, and this is assigned for error. If erroneous, it clearly did not affect the verdict, and cannot avail to reverse the ease.

It is contended that the fifth instruction for the state is erroneous. It reads as follows: “The court charges the jury for the state that they are not to convict the defendant unless they believe from the evidence beyond a reasonable doubt that he is guilty. Still, that does not mean that they must know, that he is guilty, but if, after considering, comparing, and weighing all the evidence, they conscientiously believe from all the evidence beyond a reasonable doubt that he is guilty, that is sufficient, and they should convict.” The use of the word “conscientiously” in this instruction is objected to as erroneously qualifying the reasonable doubt which should actjuit. There is no merit in the objection. In this instruction the word is mere surplusage. If omitted altogether, the instruction is correct. Surely defendant was not injured by an instruction to the jury informing them that, in order to a conviction, they must conscientiously believe from all tbe evidence beyond a reasonable doubt that defendant is guilty. The instruction given does not substitute conscientious belief for belief beyond a reasonable doubt, but warrants a conviction only upon a conscientious belief of guilt beyond a reasonable doubt.

We come now to the third instruction for the state, upon which appellant chiefly relies for a reversal. It reads as follows: “The court charges the jury for the state that manslaughter is the hilling of another in the heat of passion, without malice, by the use of a dangerous weapon, without authority of law, and not in necessary self-defense; and the court further instructs the jury for the state that if the jury believe from the evidence beyond a reasonable doubt that Ellis Poole cursed Daniel Moore for a son of a bitch, and that Moore, while still under the heat of passion, aroused by such insult, seemed a pistol and shot and killed Poole, not in malice, but in the heat of passion^ and not in his necessary self-defense, then he is guilty of manslaughter, and the jury should so find.” It is contended that this instruction is erroneous, as being upon the weight of the evidence and as assuming that Moore was under heat of passion aroused by having been cursed by Poole for a son of a bitch. We think the objection not well taken. The instruction, fairly construed, imports that the jury must believe from the evidence beyond a reasonable doubt not only that Poole cursed Moore for a son of a bitch, but also that Moore’s passion was aroused by such insult, and that while still under the heat of that passion he secured the pistol and shot Poole. In one of the numerous briefs for appellant it is insisted that, save for the objections noted, the instruction is free from objection, as .being an instruction strictly applicable by its terms to the crime of manslaughter. In another brief filed for appellant it is insisted that the instruction is incorrect, because, if appellant shot Poole under the circumstances stated in the instruction, he was guilty of murder. It is not necessary that we should say which of these conflicting views is correct. In either view appellant was not prejudiced in bis defense by tbe instruction. Self-defense was the sole defense relied upon by appellant. This defense was presented to tbe jury by numerous instructions which most liberally, exhaustively, and persuasively expounded the law applicable to that subject. The jury could by no possibility have acted in ignorance as to appellant’s right to slay his antagonist, if apparently necessary so to do in order to save himself from impending danger to life or limb, actual or apparent. Their verdict of manslaughter can mean nothing less than that they were satisfied beyond a reasonable doubt that appellant did not act in justifiable self-defense. We cannot say that this finding of fact is not correct, and it shuts us up to the conclusion that appellant was guilty of either murder or manslaughter. A conviction of the lesser of these two crimes will not be set aside because had upon an instruction which, if incorrect at all, is incorrect only in this: that it directed a verdict of manslaughter upon facts which would have warranted a conviction of murder.

Affirmed.