100 So. 525 | Miss. | 1924
delivered the opinion of the court.
The appellant, James Stevenson, was indicted and tried in the circuit court of Jefferson county for murder and was convicted of manslaughter, and sentenced to serve a term of ten years in the state penitentiary, and from this conviction and sentence he prosecuted this appeal.
The appellant shot and killed his wife in their home. Other than the appellant, there was only one eyewitness, the sixteen-year old stepson of the appellant. The testimony of this boy, if believed, makes a clear case of murder, while if the testimony of the appellant is accepted the killing was accidental.
In this state of the record the state secured the following instruction:
“The court instructs the jury for the state that their verdict wall be in one of the following forms:
“(1) ‘We, the jury, find the defendant guilty as charged. ’ In this event the court will sentence the defendant to be hanged.
“(3) ‘We; the jury, find the defendant guilty as charged, but certify that we cannot agree on the punishment. ’ In this event the court will sentence the defendant to life imprisonment in the state penitentiary.
“ (4) ‘We, the jury, find the defendant guilty of manslaughter’ — in which event the court-will sentence him to serve a term of years in the state penitentiary, not to exceed twenty years.
“ (5) ‘We, the jury, find the defendant not guilty.’ ”
The only assignment of error argued by counsel for ap’pellant is directed at the fourth clause of this instruction, the objections to this clause of the instruction being summarized as follows:
“First. Because there is no evidence in the record on which a manslaughter instruction could be based. ■
“Second. Because the instruction does- not define the crime of manslaughter, but leaves it to the whim or imagi - nation of the jury.
“Third. Because the instruction undertakes to set out the penalty for manslaughter, which is improper, and then makes bad matters worse by giving only a portion of the penalty.”
The first objection to this instruction is fully answered by the cases of Calicoat v. State and Strickland v. State, 131 Miss. 169, 95 So. 318, in which the court expressly overruled the case of Rester v. State, 110 Miss. 689, 70 So. 881, and that line of cases which are in accord with the doctrine of the Hester case, and returned to the principles announced in the case of Huston v. State, 105 Miss. 413, 62 So. 421. In the Calicoat case the court quoted at length, and adopted, the reasoning of the Huston case, and announced as the correct rule the following:
“The question here presented for our determination, and which we decide, is this: Where a person is slain by another, and the slaying is. admitted by the defendant,
While the writer was not in accord with the majority of the court in the Calicoat case, and expressed the view that the doctrine of the cases of Parker v. State, 102 Miss. 113, 58 So. 978, and Rester v. State, 110 Miss. 689, 70 So. 881, and other cases in accord with them, should be followed, the rule announced in the Calicoat case is controlling and is decisive of the first criticism of this instruction.
The next point argued is that the instruction complained of fails to define the crime of manslaughter. No instruction was asked by either side defining the crime of manslaughter, and a court' may not, under our statute, give instructions not asked in writing. Johnson v. State, 78 Miss. 627, 29 So. 515. The defendant asked no instruction defining manslaughter, and consequently the failure of the court to. give the jury such a definition was not an error of which he may complain. In the case of Dixon v. State, 106 Miss. 697, 64 So. 468, the defendant was convicted of murder, and, on appeal, assigned as error the failure of the court to give the jury a definition of murder, and in responding to this assignment the court said:
“No instruction was asked by either the state or defendant requesting the court to define the crime of murder, and therefore, under section -793 of the Code, it was with
The third and last objection to this instruction is that it tells the jury the penalty for manslaughter and only gives part of this penalty.
In the case of Johnson v. State, 78 Miss. 627, 29 So. 515, the refusal of a requested instruction was assigned as error. The court held that the instruction was properly refused for the all-sufficient reason that it authorized a verdict of guilty of'manslaughter, when there was absolutely nothing’ in the evidence to warrant a finding of manslaughter'; but the court also said that the instruction was faulty in stating that the court had control of the punishment of that crime¡
In the case of Ellerbe v. State, 79 Miss. 10, 30 So. 57, the state ashed and was granted an instruction which authorized a verdict of manslaughter, and informed the jury that under such a verdict the court might fine the defendant in any sum not less than five hundred dollars, or imprison him in the county jail not more than one year, or both, or may sentence him to the penitentiary not less than two years. The court held that it was improper to inform the jury of the character or degrees of punishment for manslaughter in any case, and held that the instruction was reversible error in that ease, and assigned as the reason for so holding- that — “It is faulty in stating the punishment, and that in its milder forms, it looks too much like an invitation to the jury to compromise'on the lesser offense. ”
Eor the reason assigned by the court it does not appear that it intended to hold that every instruction referring to the penalty for manslaughter would be reversible error in all cases, and the holding that the instruction granted in the 'Ellerbe case was reversible error can only be justified on the ground therein stated; that is, that the instruction as given constituted an invitation or inducement to the jury to compromise on the lesser offense.
The judgpient of the court below will therefore be affirmed.
Affirmed.
