94 So. 717 | Miss. | 1922
delivered the opinion of the court.
The appellant was indicted for the murder of her husband, Freeman Woodward, and on trial was convicted of manslaughter and sentenced to two years-in the state penitentiary, from which judgment this appeal is prosecuted.
Appellant and the deceased had been married about two years, and had separated several times, the last time being about two weeks prior to the fatal difficulty. The deceased had been married several times, and had abandoned
The state obtained two instructions which are alleged to be erroneous and are as follows:
“The court instructs the jury for the state that, if you believe from the evidence beyond every reasonable doubt that the defendant, Lizzie Woodward, shot Freeman Woodward, the deceased, when the defendant was in no danger, real or apparent, of great bodily harm at the hands of deceased, then she is guilty as charged in the indictment, and this is true regardless of every other fact in this case.”
“The court instructs the jury for the state that there are five verdicts that you may find in this case as follows:
“ ‘We, the jury, find the defendant guilty as charged in the indictment.’
“In this event it would be the duty of the court to sentence the defendant to hang. Or,
“ We, the jury, find the defendant guilty as charged in the indictment and fix her punishment at imprisonment in the penitentiary for life.’
“In that event it would be the duty of the court to sentence her to the penitentiary for life. Or,
“In that event it would be the duty of the court to sentence her to the penitentiary for life. Or,
“ ‘We, the jury, find the defendant guilty of manslaughter.’ " '
“ ‘We, the jury, find the defendant not guilty.’ ”
It is objected to the first instruction that it does not deal with the heat of passion, and that the concluding clause, “and this is true regardless of every other fact in this case,” necessarily excludes manslaughter from the finding of the jury, while the second instruction tells the jury that they may find the defendant guilty of manslaughter as one of the verdicts which might be rendered iii the case; that the two instructions are inconsistent. It is also insisted that there is no manslaughter because the testimony for the state shows the killing to be murder while the evidence for the defendant establishes a justifiable homicide; that the doctrine of the Rester Case, 110 Miss. 689, 70 So. 881, and of Walker v. State, 123 Miss. 517, 86 So. 337, became applicable; and that appellant should be discharged because acquitted of murder.
We have carefully considered this assignment of error with the evidence in the record, and we think it is not well taken because the jury were warranted in finding manslaughter in this case. Whenever the quality of the act of killing is involved, the line of demarcation between murder and manslaughter may be hard to distinguish. There is frequently a twilight zone' between the two when it is hard to distinguish whether the killing is done with malice aforethought or whether it be done in the heat of passion caused by adequate provocation, and sometimes whether the facts and circumstances upon which the defendant acts are such as would cause a reasonably prudent man to so act under the same circumstances or not is hard to define and distinguish. In such case a great deal of latitude is allowed the jury in passing upon the facts. The circumstances in evidence in this record show that the con
It is also assigned for error that the court erred in overruling the motion for a new tidal on the ground that the trial judge had a conversation with a member of the jury outside of the presence of. .the defendant, and that in such conversation the juror desired to know the least penalty for the conviction of manslaughter, and that the judge stated he could not tell the maximum and minimum punishment, but that manslaughter could be punished by a fine, and that the juror asked, if they convicted of manslaughter with recommendation of mercy, what punishment the court Avould inflict, and the judge told him he could not give this information, but he would not disregard the jury’s recommendation in such case. This matter is set forth in an affidavit filed by the attorney for the appellant after the rendition of the verdict and is not contained in any bill of exceptions. In his affidavit he states that a bailiff; came to the room where the attorney and the judge were in conversation and told the trial judge that a juror wished to
In the case of Powers v. State, 83 Miss. 691, 36 So. 6, this coxxrt held that a bill of exceptions was the proper remedy to present any matter occurring at the trial that was xxot properly a part of the record. See the discussion at pages 699 ,and 700 of the Mississippi report of this case and the authorities there referred to. Whether the bill of exceptions is the exclusive remedy or not, it was the duty of the appellant to promptly make objections and take exceptions on learning what happened, and there
The judgment of conviction will therefore be affirmed.
Affirmed.