Springer v. State, No. 22447

No. 22447 | Miss. | Mar 15, 1922

Ethridge, J.,

delivered the opinion of the court.

Elmer Springer was indicted for the murder of Arch Larkin, and tried, and convicted of manslaughter, and sentenced to ten years in the state penitentiary,, from which judgment he prosecutes this appeal.

The appellant and the deceased had a difficulty on the premises of one Neal King, and engaged in a fight. They were separated in the house, and the appellant was ordered to leave the house by King, and went into the yard, and picked up an ax, and started to return to the house, and King ordered him to put the ax down, and, if he couldn’t do better than that, to leave. At about this time the deceased came out of the house, and according to some of the state’s witnesses was leaving the place, and according to others the deceased said to the appellant that, if he wanted to fight, to come away from the house, when the appellant picked up a half brick, threw it at deceased, struck him on the side of the head, and knocked him senseless, and then ran off. According to the defendant, the deceased was coming upon him with a poker in his hand, or something else, and he threw the brick to prevent him -from assaulting him. After the deceased was struck, on the following day, a physician was sent for, who attended the deceased, and who found him suffering intense pain in the head. 1-Ie made an examination of the wound with his fingers, but could find no fracture. He continued to Visit the deceased once or twice a day until about Wednesday, when he seemed to be better, and he did not visit him again until Friday, when he found him suffering intensely, and found symptoms of meningitis. He testified that in his opinion the meningitis was caused by the germs enter-lug the wound on his head and thereby infecting him, and that but for the wound he would not have been infected by such genns. lie further testified that he thought meningitis was the immediate factor producing the death. According to a number of eyewitnesses, the appellant at the time of the throwing of the brick was very angry from the fight in the house, in which he seems to have been worsted.

The state procured a manslaughter instruction, which it is contended constitutes error, and it ivas given over the objection of tlie defendant. The defendant obtained twelve instructions, and ivas refused five. We think the refused instructions, with the exception of No. 16, which is one of the refused instructions, are covered by the instructions given. The sixteenth instruction requested, which was refused, reads as follows:

“The court charges the jury that you must return a verdict of not guilty, unless it appears from the evidence beyond all reasonable doubt that the disease of meningitis was not the sole cause of decedent’s death.”

In the course of the defendant’s argument the attorney for the defendant stated that the defendant was either guilty of murder or should be acquitted:

“We do not want the jury to bring in any manslaughter verdict; that the district attorney had asked for a manslaughter, and the state would be tickled to death to secure a verdict of manslaughter, and send this man to the pen-ilentiary for a term of years.”

To which statement in reference to punishment the district attorney objected, and the court ruled that it was an improper argument for the attorney to state in his argument what the punishment might be for manslaughter, and instructed the jury to disregard' such statements, as they had nothing to do with fixing the penalty in this case, which ruling is assigned for error.

In the trial one witness for the state stated that the deceased would weigh about one hundred and forty pounds, and gave his age to the jury. In the defendant’s evidence-one witnesses testified that the deceased would weigh about one hundred and eighty pounds, but the court sent tlit-jury out, and then stated to the attorneys that nothing had- developed so far that would warrant evidence of the difference as to size and strength of the two parties, the defendant and the deceased, and ruled out the evidence with reference to the size of the deceased. There was no proof as to the size or weight of the defendant, but he appears to have been eighteen or nineteen years of age, and this ruling of the court is assigned for error.

We think the manslaughter instruction was proper, because it clearly appears that the parties engaged in a fight immediately preceding, and there is ample testimony for the jury to believe that the deceased ivas not assaulting ot attempting' to assault the defendant at the túne of the throwing of the brick. This is not a case of murder or nothing, and it is probable that the -guilt was really manslaughter, and not . murder. We do not think that the court erred in refusing instruction No. 16 under the facts in ibis record. The only testimony bearing on meningitis is that of the physician, who testifies that meningitis was caused by the wound becoming infected with the germs, and if there had been no wound there won id have been no meningitis. Wherever disease not originating from the wound inflicted by defendant is a prime cause of death, being independent of the act of the defendant, the defendant will be entitled to have the charge requested; but where the disease is caused by the wound, which wound is produced by the act of the defendant, he is not entitled to this instruction. In other words, he is not permitted to inflict a wound which results in death by reason of becoming infected, and then to claim that he is not responsible for the death which he sets in motion by his unlawful act.

We do not think there is any merit in the objections taken to the court’s ruling to the defendant’s argument. This court has several times ruled that it -was improper for an attorney to comment on the punishment which the lav-visited upon a defendant for the offense, where the jury-had nothing to do with fixing the punishment, and the jury lias nothing to do with that subject on a conviction of manslaughter. There are cases in which the jury have the right to fix or recommend punishment; but this is not one of those cases, and it is not error for the court to disallow argument upon that subject.

We also think there is no merit in the assignment that the court erred in ruling out the evidence in the disparity of the relative sizes of defendant and the deceased. The distance between them was too great for the defendant to be in such danger from the superior prowess of the deceased as to inflict a deadly wound upon him. The other assignments of error are without merit, and the judgment is affirmed.

Affirmed.