Bangren v. State , 196 Miss. 887 ( 1944 )

SPECIALLY CONCURRING OPINION. I concur in the reversal of the case upon the asserted grounds but not upon its remand except for sentence. The jury rejected the plea of self-defense and resolved the issue of justification adversely to appellant. She was therefore found guilty of unjustifiable homicide which is either murder or manslaughter. The verdict is for murder, which, under the facts of the case, includes manslaughter. Hughey v. State (Miss.), 106 So. 361. Had the jury found a verdict for manslaughter, we should have allowed it to stand. There seems to be no reason, therefore, why our assent to a conviction for the lesser offense should not stand, and the cause be remanded for sentence only. Oliver v. State, 5 How. 14, 6 Miss. 14; Ex parte Burden,92 Miss. 14, 45 So. 1, 131 Am. St. Rep. 511; Martin v. City of Laurel, 106 Miss. 357, 63 So. 670; Smithey v. State, 93 Miss. 257, 46 So. 410; Jones v. State, 147 Miss. 85, 113 So. 191. This procedure is uniformly followed in some states. Reynolds v. State, 186 Ark. 223, 53 S.W.2d 224; Brooks v. State,141 Ark. 57, 216 S.W. 705. Under our statute when there is a valid conviction, an error in fixing the punishment entitles a defendant only to a reversal as to the degree of punishment. 2 Miss. Code 1942, Section 2609. Defendant is in no position to complain since the judgment here is favorable to her. Compare Calicoat v. State, 131 Miss. 169, 95 So. 318. See also Grillis v. State (Miss.), 17 So. 2d 525.

It may be that the course here advocated should not be followed in all reversals of convictions of murder, for the only alternative in some cases may be acquittal. But when as here, there was a deliberate homicide not justified as either inadvertent or in the heat of passion, and when jury have found defendant guilty not only of manslaughter but of murder, it should be affirmed as to that degree implicit in the jury's verdict.

A defendant's privilege against former jeopardy should not be enlarged to require the prosecution to be subjected to a similar hazard. To allow appellant a new trial means that she is entitled to have a second jury ratify the present conviction, with the added privilege of seeking an acquittal upon a plea of self-defense which has already been rejected. Upon the record, we have in effect said that she was guilty of manslaughter but must be again convicted before being punished.

I am authorized to state that Justice Griffith concurs in the foregoing views.