Smith v. State

65 So. 498 | Miss. | 1914

Need, J.,

delivered the opinion of the court.

Appellant was convicted on a charge of murder and sentenced to the penitentiary for life. He killed another young man, George Bullard, by stabbing him repeatedly, some nine times, with a knife. The evidence in the case is sufficient to sustain the verdict of guilty returned by the jury. "We see no error in the action of the court in refusing to direct the jury to bring in a verdict of not guilty.

The giving of the fifth instruction for the state is assigned as error. Appellant complains particularly of the concluding words of the instruction, which are as follows :

“Or they may return, if warranted by the testimony, the following verdict: ‘We, the jury, find the defendant not guilty. ’ ’ ’

We quote the entire instruction No. 5 in order that it may be seen exactly the location and use of the words complained of therein:

“The court charges the jury for the state that they may return either of the folowing verdicts in this case if warranted by the testimony:

“First, ‘We, the jury find the defendant guilty as charged.’ In which event it will be the duty of the court to sentence the defendant to be hanged.

“Second. ‘We, the jury, find the defendant guilty as charged but disagree as to the punishment.’ In which event it will he the duty of the court to sentence, the defendant to the penitentiary for his natural life.

“Third. ‘We, the jury, find the defendant guilty as charged’ and fix his punishment at imprisonment in the penitentiary for life. In which event it will he the duty of the court to sentence the defendant to the state penitentiary for his natural life.

‘ ‘ The court charges the jury further that, if warranted by the testimony, they may return the following: ‘We, the jury, find the defendant guilty of manslaughter.’ Or they may return, if warranted by the testimony, the following verdict: ‘We, the jury, find the defendant not guilty.’ ”

It is contended by counsel for appellant that the instruction “amounts to informing the jury that the defendant is required to meet the testimony, whether sufficient to convict or not, before they would be warranted in bringing in a verdict of not guilty. ’ ’

This instruction is upon the form of the verdict. It tells the jury that they may return a verdict of guilty in any of several cases — three different verdicts upon conviction of murder, and a verdict upon conviction of manslaughter. In reference to manslaughter, it states that, “if warranted by the testimony,” they may return the verdict of guilty of manslaughter, and then the instruction continues in the words above referred to and complained of, repeating'the expression “if warranted by the testimony,” and tells them that they can find the defendant not guilty. We only see in this general instruction information given to the jury of the formal wording of their verdict, and, in the event of the conviction of murder, the effect of the several different verdicts.

We must construe this instruction with all the other instructions in the case — those-for the defense as well as those for the state. In order to arrive at the proper meaning of the several instructions given, all must be considered together. We find that sixteen instructions were given in this case for the defense. At least six of these instructions clearly expresses to the jury their duty to acquit if they have a reasonable doubt of the defendant’s guilt. It is fully stated in the instructions that this doubt can arise out of the evidence or want of evidence. We do not see, after consideration of all of the instructions, how the jury could have possibly been misled, or appellant prejudiced, by the words in instruction No. 5 by which they Avere told that they could find the defendant not guilty. We see no error in the granting of this instruction.

Another assignment of error argued in this case is:

“The court erred in receiving the vague, indefinite, and obscure verdict as a legal verdict of the jury in this case.”

The following is the verdict returned by the jury:

“We, the jury, find the defendant guilty as charged but disagree as to the punishment and ask the mercies of the court.”

When the verdict was returned, at the request of counsel for appellant, the jury was polled, and each juror answered that the verdict was his verdict. The record does not show that any further request was made to the court for inquiry as to what was meant by the verdict, and the attitude of the jury in reference to the punishment.- The jury were plainly instructed as to the effect of the verdict they rendered. There is nothing in the record to show that the jury did not intend to convict appellant, even though his punishment might be life imprisonment. The court appears to have treated the words “and asks the mercies of the court” as surplusage. The court was correct in this. Penn v. State, 62 Miss. 450; Sykes v. State, 92 Miss. 250, 45 So. 838.

Affirmed.