Martin v. State

Homicide. Instructions. Manslaughter. Evidence. In a trial for homicide where the evidence was conflicting as to who was the aggressor in a fight during which one of the participants was killed by the other and the jury might have believed from the evidence that the killing was in the heat of passion, an instruction on manslaughter should have been given when asked for by the defendant and the failure in such case to give such instruction was reversible error.

Appeal from the circuit court of Alcorn county. HoN. Claude Clattou, Judge. John Martin was convicted of murder and appeals. The facts are fully stated in the opinion of the court. “The defendant in a criminal prosecution has a right to have the court instruct the jury on the law applicable to his contention, if supported by substantial evidence. However weak, unsatisfactory, or inconclusive it may appear to the court, to refuse to so instruct the jury would be to invade its province in the trial of a case. The question is not whether, in the mind of the court, the evidence, as a whole, excludes the idea that the defendant is guilty of an inferior degree of the offense charged, but whether there is any substantial evidence tending to prove any inferior degree of the offense. If there is, then the question of such'degree should be submitted to, and left for the determination of the jury. The unsupported testimony of the defendant alone if tending to establish such inferior degree, is sufficient to require the court to so instruct.” Stake v. Buffington, 66 Kan. 706, 72 Pac. 213. “In the prosecution for murder whatever grades of the crime defendant’s testimony may tend to prove should be governed by appropriate instructions, although his evidence may not be true.” State v. Richardson, 92 S. W. 649, 194 Mo. 326. This same principle of law is sustained in the following cases: State v. Fisher, 59 Pac. 919, 23 Mont. 540; Ringer v. State, 85 S. W. 410, 74 Ark. 262; Newton v. State, 41 So. 19, 51 Fla. 82; Trigo v. State, 74 S. W. 546, 45 Tex. C. E-. 127; Boles v. Commonwealth, 48 S. E. 527, 103 Yir. 816. Judge SteveNS in rendering the opinion in the case of Rester v. State, 70 So. 881, uses the following language: “It is the province of the jury to pass upon the facts of a case and to believe parts of evidence of either side and discard any portion of the evidence either for the state or for the defendant. It is certainly the province of the jury also to settle any issue of fact in the case, but the defendant has the absolute right to have the facts of the case presented to the jury on instructions ■which state them fully and accurately. The jury must apply the facts to the particular case in the light of and in accordance with the law of the case.” Bester v. State, 70 So. 881. The statutes of what constitute murder and manslaughter are so diversified that the court should' give to the jury free latitude in determining these facts. “As a general rule it is always best to give both degrees of murder, no matter how atrocious the circumstances attending the homicide.” Barth v. State, 39 Tex. Cr. R. 381, 73 Am. St. Rep, 935. “On the trial for murder the ■court should charge the jury as to what .constitutes murder in the second degree though counsel for accused admit him to be guilty of that degree of crime, and if he is convicted of murder in the first degree in the absence of such charge his conviction should be set aside.” State v. Foster (N. 0.), 89 Am. St. Rep. 876. “The ■court should have given the charge asked, defining manslaughter.” Green v. State (Miss.), 37 So. 646. “If a conviction of manslaughter would be correct should the jury accept one view of the evidence an instruction limiting the verdict to a conviction of murder or an acquittal is erroneous.” Johnson v. State of Miss., 75 Miss. 635, 23 So. 579. “Where in a prosecution for homicide the evidence ■did not warrant a conviction for a higher offense than manslaughter it was error to omit to charge on manslaughter, though no such instruction was requested.” May v. State (Miss.), 42 So. 164. “Whether a defendant was guilty of manslaughter should be left to the determination of the jury although the evidence shows an unpremeditated killing by the , defendant’s brother in response to request of the defendant who had just been engaged.in a fight, and was being held by two men, confronted by deceased armed with a stick to attack someone when he made the request.” Cook v. State of Miss., 85 Miss.'738. “When two persons on a sudden quarrel engage in a mutual combat, and one is killed in the heat of the conflict the offense is at least manslaughter.” State v. Davidson, 8 S. W. 413, 95 Mo. 155. Counsel for appellant have no intention to ask this .court to reverse or overrule the cases of Virgil v. State, 63 Miss. 320, Parker v. State, 102 Miss. 113, and Pester v. State, 70 So. 881, for the facts in these cases shows clearly that the offense was murder or nothing. There is no evidence in any of these cases upon which a verdict of manslaughter could be based but the facts in this case make out an entirely different case to those referred to above. In the Rester case the contention of the appellant was that he was sitting on or near the east end of the bridge across alligator creek, facing west, when Ladner, coming down the creek, raised his rifle to shoot appellant; appellant threw his gun up and shot Ladner in self defense. This state of facts show that it was murder or nothing. In the Parker case, the facts are such as reported that it is impossible to get a clear cut idea of just how the tragedy took place. In the Virgil ease the only question' to be decided was whéther Virgil wilfully and feloniously burned the house which caused the death of the deceased. You may analyze and investigate the facts in the numerous other cases decided by this court upholding the same principles of law and you will not find in any of these cases facts similar to the case at bar where a combat was entered into by the parties at night in a crowd where the combat was fierce and of duration of three or four minutes, where the evidence is conflicting as to who began the fight, as to who was the aggressor from the beginning to the end. “Whenever the life of a human being is in the. balance, it is but just to him that the law governing the casé made against him be properly stated.” Strickland v. State of Miss., 85 Miss. 134. It was error for the court to refuse the charge of manslaughter when the records show so clearly that Walter Taylor was killed by John Barton in the heat of a combat. I give the following authorities which bear out my contention as to this charge of manslaughter: Green v. State, 37 So. 646; Johnson v. State, 75 Miss. 635; Mays v. State, 42 So. 164; Cook v. State, 85 Miss. 738; Slimmer v. State, 34 S. E. 293, 109 Ga. 142; Dorsey v. State, 35 S. E. 651, 110 Ga. 331; Davis v. State, 39 S. E. 906, 114 Ga. 104; Horton v. State, 47 S. E. 969, 120 Ga. 307; State v. Buffington, 72 Pac. 213, 66 Kan. 706; Bollin v. Commonwealth, 94 Ky. 391; Greer v. Commonwealth, 111 Ky. 93; Strickland v. State, 81 Miss. 134; State v. Magers, 57 Pac. 197, 35 O. R. 520; Riley v. State, 81 S. W. 711; Lara v. State, 89 S. W. 840; 48 Tex. O. R. 568; Fuller v. State, 95 S. W. 1099. Counsel cites several authorities from this state to sustain his proposition that the manslaughter instruction should have been granted the accused. A reference to all the cases of this state cited by counsel will show that each case depended upon its own facts and that the facts in none of those cases are parallel with the facts now before the court. The cases cited were cases where the difficulty resulting in the killing originated suddenly between parties, and were cases where the heat of passion was aroused by sudden heated provocation. As stated in the case of Guice v. State, a case very similar to this one on the facts where the point was made that the court refused'to instruct on manslaughter; still others sought an enunciation of the law as to the crime of manslaughter, and were properly refused, because there was no element of manslaughter in the case. The killing was either murder or justifiable upon the ground ■of self-defense. There can be no claim of legal heat of passion arising from the act of an enemy in making a supposed hostile demonstration.” In the casé of Rester v. State, 70 So. 881, in briefing that case I argued that Rester, according to his own evidence, unnecessarily shot the deceased at a time when his life was not in danger or apparently so, and that for this reason the jury would have been warranted in finding him g’uilty of the lesser crime on the ground that he shot from fear rather than from malice. This court however, held that there was no element of manslaughter in the •case and that it was error to grant an instruction authorizing the jury to convict of manslaughter. Judge StepheNS quotes from the case of Bates v. State to the •effect that if the evidence for the state was the truth, the verdict should have been for murder and if the defendant’s statement was truth the defendant should have been acquitted. The rule announced in the Parker case, 102 Miss. 113, is the correct one and the one applicable to this case as said there, so we say here, that there is no halfway •ground, no debatable question, except that of the appellant’s guilt or innocence of the crime of murder and that to have ..given a manslaughter instruction under the facts of this case would not only have been improper but would have been manifestly erroneous. In this case, .according to the state’s evidence we have all the elements that usually attend a case of deliberate murder. "We have a motive, a purpose on the part of the appellant to carry it into effect, threats made several days before •evidencing such motive and purpose and the presence of the appellant at the scene of the homicide awaiting his victim who was expected in on the train to marry his ■sweetheart. We therefore most respectfully submit that under the facts of this case, the authorities cited by appellant’s ■counsel are not in point and that there was no error on ■the part of the trial court in refusing the manslaughter instruction.