Calicoat v. State , 131 Miss. 169 ( 1922 )

Sykes, P. J.,

delivered the opinion of the court.

Opinion in No. 22290, Calicoat v. State.

The appellant (defendant in the circuit court) was indicted for murder, convicted of manslaughter, and by the court sentenced to a term of five years in the penitentiary; from which judgment this appeal is prosecuted.

At the request of the district attorney a manslaughter instruction was given for the state. The appellant shot and killed the deceased with a pistol. He admitted the shooting, but claimed he did it in self-defense. There was no testimony whatever of an altercation between the appellant and the deceased prior to the shooting. No hot words or insulting epithets passed between them. Under the testimony it was either a case of murder or justifiable homicide, committed in self-defense. . Presumably acting upon the instruction given for the state, the jury returned a verdict of manslaughter. The principal assignment of error, and in fact the only one which merits any consideration, is whether or not the giving of the manslaughter instruction constituted reversible error.

Under the decision of this court in the case of Rester v. State, 110 Miss. 689, 70 So. 881, and other cases which follow that one, this contention of the appellant is well taken. In this case, however, the court has considered the advisability of overruling the Rester case, and returning to the principles announced in the case of Huston v. State, 105 Miss. 413, 62 So. 421.

Since the Rester case was decided this court in following it has sometimes reversed and l’emanded cases, where, under the testimony, the defendant was guilty of murder or nothing, and where there was no element of manslaughter shown by the testimony. In a number of these cases which were remanded it became the duty of the circuit court to discharge the defendants because of lack of evidence upon which to base a verdict of manslaughter. In several instances this court here has discharged a defendant when it Avas satisfied that the state could not make out a case of manslaughter. The practical effect of the decision in the Rester case has certainly in some instances resulted in guilty parties going unwhipped of justice. This result has had great weight Avith the court in its conclusion to overrule the Rester case and return to the doctrine announced in the Huston case. There is authority in Mississippi to sustain the holdings of the court in each of these cases. The Rester case is in line with the Parker case, 102 Miss. 113, 58 So. 978, and Johnson case, 78 Miss. 627, 29 So. 515. The principles enunciated in the Huston case are supported by the Rolls case, 52 Miss. 391, Powers case, 83 Miss, 691, 36 So. 6, and Moores case, 86 Miss, 160, 38 So. 504. Each of these cases is also sustained by authority from without the state. However, the weight of authority seems to favor the decision in the Huston case.

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, whose plea is self-defense, then, on an indictment for murder, and a conviction of manslaughter, where the testimony would sustain a verdict of guilty of murder, and where there are no elements of manslaughter involved, it is harmless error, of which the defendant cannot complain, that a jury saw fit to find him guilty of manslaughter instead of murder. Or, stated briefly in a different way, where the killing is admitted, and only the nature and quality of the act are to be determined, a manslaughter instruction under the above circumstances is harmless error. Before this court will reverse a cause it must be satisfied of two facts, namely, that an error in favor of the appellee was committed in the trial of the cause by the court below, and, second, that this error was prejudicial to the rights of the appellant. Jones v. State, 104 Miss. 871, 61 So. 979; rule 11 of this court (72 So. vii).

The verdict of the jury in this case found that the appellant was guilty of an unlawful homicide. By this verdict they rejected in whole the testimony of the appellant that he shot- in self-defense. The mistake of the jury was in finding that the killing was done in the heat of passion, instead of with malice aforethought; for which mistake of the jury the appellant is now under sentence to serve a term of five years in the penitentiary, whereas, if this mistake had not been made, he would either have been hanged or sent to the penitentiary for life. Under the Huston case this error was certainly not prejudicial to this appellant. Without approving the facts upon which the opinion in the Huston case rests, we adopt this portion of the Huston case as correctly stating the rule which we shall follow in this case.

“We proceed now to analyze the verdict. The essential and potent fact is that the jury believed, and so said by their verdict, that the defendant was guilty of an unlawful and felonious homicide. To reach this conclusion, the jury necessarily and entirely rejected the evidence given on behalf of defendant. This is true, because if they had any reasonable doubt about -the truthfulness of any, or all, of this evidence, it was the duty of the jury to say not guilty. But the jury, by its verdict, said guilty, and ignorantly named the crime manslaughter. First, defendant was found guilty; second, the jury say he was guilty of manslaughter. If guilty, he should be punished for murder. That he was guilty was the solemn finding of the jury; but the jury went further, and said that he was guilty of the lesser crime, and it is of this that appellant complains.

“It seems to us that this complaint overlooks, or ignores, the fact that the jury rejected all of defendant’s testimony, and pronounced him guilty, and that the jury could not have reached this verdict, unless they did reject the defendant’s theory, and unless they did adopt and believe the state’s theory of the facts. It is a fact that the jury, for some reason satisfactory to them, thought defendant was not guilty of the higher crime, which error of the jury resulted in a five-year sentence instead of a life sentence. So it seems, in the last analysis, the complaint is that the verdict, to satisfy the law, should have been for murder, and that defendant, by the verdict rendered, was deprived of his legal right to spend the balance of his days in the penitentiary.

“Technically the contention of defendant may be flawless; but practically we think it is without substance or merit. Logically the defendant is not complaining of any injury to himself, but insists that the law has been perverted in his interest, and to this he cannot give his consent. Upon an indictment charging- murder, the person charged may be legally convicted of manslaughter, provided there is evidence justifying the belief that the defendant is guilty of the lesser crime. This is admitted; but it is contended that there was no evidence even tending to prove manslaughter. The reply is that there was abundant evidence to prove murder . . . and we are unable to see how he can complain of the instruction on manslaughter, or of the verdict of the jury.”

This opinion is in no wise conflicting with the opinion of the court in the case of Virgil v. State, 63 Miss. 317. In the Virgil case the indictment was for the murder of an infant by burning a house (arson). The sole issue in that case was the identity of the guilty party. The Virgil case in no wise attempted to modify or overrule the Rolls case, 52 Miss. 391, which is in accord with this opinion.

Since our views lead to an affirmance of the case, we ave not here presented with other questions argued by counsel at the request of the court in case it should be reversed and remanded.

Affirmed.

Opinion in No. 22821, Strickland v. State.

Sykes, P. J.,

delivered the opinion of the court.

The same questions are presented by this record as in that of Callaway Calicoat v. State, this day decided by us. For the reasons given in the Callaway Calicoat case, this case will be affirmed.

Affirmed.