Butler v. State , 146 Miss. 505 ( 1927 )

^* Corpus Juris-Cyc. References: Ciminal Law, 16CJ, p. 885, n. 73; 17CJ, p. 319, n. 22; Homicide, 30CJ, p. 398, n. 39. The appellant was indicted and convicted of the murder of his brother in Lowndes county, Mississippi. The evidence shows that the two brothers met at the house of a third party on the occasion of the killing, and that they were friendly during the first part of the time they were together, but that a dispute arose between them and hot words passed, finally resulting in the appellant picking up a brickbat and throwing it at his brother, striking him on the head, from which lick he died during the following night.

Among the instructions asked for and refused the defendant, was one reading as follows:

"The court instructs the jury for the defendant that they shall not find defendant guilty of murder, but if they find the defendant guilty at all it must not be for a higher degree of homicide than manslaughter."

We have carefully examined and considered the evidence in the record, and have reached the conclusion that it is insufficient to support a conviction of murder. We have great respect for the verdict of a jury, where the jury is composed, as they are required to be, of persons of good intelligence, sound judgment, and fair character, and we are reluctant ever to disturb the finding of fact by a jury unless the record establishes error, apart from the judgment of the facts, warranting us in reversing the case.

We can only account for the verdict in the present case on the theory that the state's witness, introduced by the state to contradict the defendant on some matters about which he testified while being cross-examined as to his interest in the result of the suit, stated that he was interested, that his father owned a large plantation and employed considerable labor in the community, and that the defendant was a bad negro, and that he wanted to get rid of him. This statement was not objected to, nor was any motion made to exclude it, and of course we cannot consider it as error per se. The law, however, recognizes the force and efficacy of evidence either of good or bad character in the trial of criminals; and, while evidence of a good character may be legally sufficient to warrant an acquittal, it is equally efficacious when evidence of a bad character creeps into the hearing to turn the scale in the other direction, not legally, but in fact; and we are satisfied that this evidence had a prejudicial effect in the decision of the case, and it should have been excluded, although not objected to.

We would not reverse for the admission of this evidence without objection, if the evidence were strong enough to support a conviction of murder, but in a case where the evidence shows manifestly that it was either manslaughter or in self-defense, we think it was the moving cause for the conviction. The judgment of conviction will, therefore, be reversed and the cause remanded for a new trial.

Reversed and remanded.