Gooch v. State, 24 So. 2d 736 (Miss. 1946). · Go Syfert
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Gooch v. State, 24 So. 2d 736 (Miss. 1946). Cases Citing This Book View Copy Cite
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Gooch
v.
State.
Mississippi Supreme Court.
Feb 11, 1946.
24 So. 2d 736
John T. Smith and W.D. Jones, both of Cleveland, for appellant. When evidence in any case is sharply conflicting, the Supreme Court will examine carefully all instructions to determine whether they are erroneous. Bounds v. Watts, 159 Miss. 307 , 131 So. 804 . In murder prosecution it is error to grant an instruction for the state which singles out and gives undue prominence to the testimony of single witness for the state and puts the case to the jury on that testimony alone. Hood v. State, 170 Miss. 530 , 155 So. 679 ; Stringer v. State (Miss.), 38 So. 97; Prine v. State, 73 Miss. 838 , 19 So. 711; Gordon v. State, 95 Miss. 543 , 49 So. 609; Hawkins v. State (Tex.), 32 S.W.2d 202; 4 Warren on Homicide, pp. 86, 261, Secs. 325, 338. Where theory of state and defense in homicide prosecution are directly opposed to each other and defendant's theory is supported by substantial evidence, omission from state's instruction of qualifications that a reasonable apprehension of danger to life or limb or great bodily harm justifies the taking of a human life is error and such error is not cured by correct instructions for the defendant. McNeal v. State, 115 Miss. 678 , 76 So. 625; Douglas v. State, 2 Miss. Dec. 220. An instruction in murder prosecution which directs a conviction for manslaughter if the jury believes certain facts without stating all the essential elements necessary to convict of manslaughter is erroneous. Walters v. State, 176 Miss. 790 , 170 So. 539 . Where instructions for the state and the defendant are so conflicting as to be irreconcilable and therefore do not furnish a correct guide for the jury prejudicial error has been committed and reversal results. Murphy v. State, 89 Miss. 827 , 42 So. 877. An instruction in a criminal case based upon facts not in evidence is erroneous. Jones v. State, 129 Miss. 457 , 92 So. 586; Smith v. State, 161 Miss. 430 , 137 So. 96 . Persons are not to be charged into the penitentiary by the court as a matter of law. Patterson v. State, 75 Miss. 670 , 23 So. 647. Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee. Instructions given by the presiding judge to the jury are to be taken and considered together and if, when so considered, they constitute a fair announcement of the law applicable to the evidence, then no error exists that would reverse the case. See Neilsen v. State, 149 Miss. 223 , 115 So. 429 ; Cummins v. State, 144 Miss. 634 , 110 So. 206 ; Upton v. State, 143 Miss. 1 , 108 So. 287 ; Pickett v. State, 140 Miss. 671 , 106 So. 95 ; Carter v. State, 169 Miss. 285 , 152 So. 876 ; Boutwell v. State, 165 Miss. 16 , 143 So. 479; Williams v. State, 160 Miss. 485 , 135 So. 210 ; Callas v. State, 151 Miss. 617 , 118 So. 447 ; Myers v. State, 167 Miss. 76 , 147 So. 308 ; Lee v. State, 192 Miss. 785 , 7 So.2d 875 ; Barr v. State (Miss.), 21 So. 131; Mississippi Digest, Annotated, title \Criminal Law
Smith, Alexander.
\" key No. 822(1).

Lead Opinion

[*283] Alexander, J.,

delivered the opinion of the court.

Appellant was indicted upon a charge of murder and was convicted of manslaughter. The assignments of error-have been carefully examined. We find it appropriate to respond to only two. These involve the granting to the state of the following instructions:,

1) The second instructions is: “The Court instructs the -jury for the State that the defendant was only justified in killing the deceased because she wat in imminent danger of great bodily harm or losing her life at the hands of the deceased, and while acting in necessary self-defense, and if you believe from the evidence in this case, beyond a reasonable doubt, that the defendant killed the deceased at a time when she was not in danger of great bodily harm or losing her life at the hands of the deceased, then under your oaths you cannot acquit the defendant. ’ ’

2) The sixth instruction is: “The Court.instructs the jury for the State that if you believe from the evidence in this case, beyond a reasonable doubt, that the defendant killed the deceased because of illicit relations with her husband, and not in necessary self-defense, then the defendant is guilty of unjustifiable homicide, and in such case- it will be the sworn duty of the jury to find the defendant guilty of either murder or manslaughter; murder if the killing was done with malice aforethought, manslaughter if it was done in the heat of passion. ’ ’

The second instruction for the state omits as part of the definition of justifiable self-defense the fact that the danger of death or great bodily harm may be either real or reasonably apparent. Under the testimony the defendant was guilty of murder or nothing. If she acted under a reasonable apprehension of great danger to herself under an attack provoked by the deceased she was entitled to acquittal. Under the state’s proof she was guilty of murder; under appellant’s proof she could have been found justified. Under this state of case it is important that the state’s instructions be technically correct.[*284] Bounds v. Watts, 159 Miss. 307, 131 So. 804. The principle was announced in our state in Long v. State, 52 Miss. 23, and has since been upheld, Douglas v. State, 2 Miss. Dec. 220; Godwin v. State, 73 Miss. 873, 19 So. 712; McCrory v. State (Miss.), 25 So. 671; Ellerbee v. State, 79 Miss. 10, 30 So. 57; Johnson v. State, 79 Miss. 42, 30 So. 39; Hood v. State (Miss.), 27 So. 643; Hartfield v. State, 176 Miss. 776, 170 So. 531; Hodges v. State, 192 Miss. 322, 6 So. (2d) 123.

* The sixth instruction is subject to the same criticism. Error is also predicated upon the alleged comment upon the “illicit relations,” presumably between the deceased and defendant’s husband. It is attacked as unduly emphasizing the state’s testimony that defendant admitted killing deceased because of her relations with him. We find no error here. This was the state’s theory even as self-defense was the theory of the defendant. Both were contrasted and submitted for the jury’s election. Compare Gerdine v. State, 64 Miss. 798, 2 So. 313; Lambert v. State, 171 Miss. 474, 158 So. 139; Woods v. State, 183 Miss. 135, 183 So. 508, 184 So. 311; Windham v. State, 91 Miss. 845; 45 So. 861.

Reversed and remanded.

Dissent

Dissenting Opinion.

Smith, O-. J.,

delivered a dissenting opinion.

The failure of the state’s instructions to advise the jury that the danger of death or great bodily harm that will justify self-defense may be either real or reasonably apparent, could not have misled the jury if they were read, as the law required them to be, in connection with the instructions granted the appellant, one of which, leaving the others out of view, charged the jury that “. . . if the evidence is such as to leave upon your minds a reasonable doubt as to whether or not defendant acted in self-defense, then defendant should be acquitted,[*285] and this is true whether the danger was actual or apparent, and even if, in fact, there was no actual danger but only apparent danger.”

The judgment should be affirmed.