Pope v. State

(dissenting).

For the first time, I find myself in the minority in the decisions of this court. As I read the evidence in this case, there is not a shred of testimony in the entire record which could, by any possibility of construction, authorize the jury in believing that this defendant was guilty of manslaughter. The issue is sharply defined by the evidence in the case, the circumstantial evidence for the state showing a rather weak.case of murder; but, if believed, it would have justified the jury in rendering a verdict against the defendant for that crime. The evidence for the defendant shows, without question that he was justified in. slaying the deceased. This being the state of the record, I think the instruction given by the court at the request of the state was unwarranted, and *145undoubtedly prejudiced the accused. The instruction authorized a compromise, which was unsupported by either the evidence of the state, or the defendant, or the evidence as a whole.

The opinion of the court says: “If the jury believed only the testimony introduced by the state, they could have found appellant guilty of murder. On the other hand, if they believed only the testimony for the defense, they could have acquitted him.” The only objection to this language is: The court, in my opinion, should have employed the word “should” instead of “could.” The last pronouncement of this court upon the precise question here involved reads as follows: “The instruction authorizing the jury to convict the defendant of manslaughter was vicious in the extreme, when applied to a case like the one under review. There is no halfway ground here; no debatable question, except the defendant’s guilt or innocence of the crime of murder. To advise the jury that they could compose their differences and doubts, if any they had, by finding the defendant guilty of a lesser crime, without evidence to support the verdict, is unfair to defendant and manifest error.” Parker v. State, 58 South. 978.

The quotation from this opinion was announced to be the law in this state July 1, 1912, and; without expressly overruling this case, I am unable to see how the present case can be affirmed. If, without the advice of the court, the jury should have returned a verdict of manslaughter, it might be argued from the evidence that defendant had no right to complain; but in my opinion, in a case like the one under review, the jury will usually compromise their differences and render a verdict for the lesser crime, if the instructions authorize such verdict, and this cannot be tolerated by the court-without overthrowing the well-settled law of this state.

delivered the opinion of the court.

Levi Pope was indicted for murder, and convicted of manslaughter. He contends that the evidence in the case *143was not sufficient to sustain a verdict of manslaughter. He assigns as error the giving at the instance of the state, of the following instruction: ‘ ‘ The court instructs the jury that, if you believe from the evidence beyond a reasonable doubt that the defendant killed the deceased in the heat of passion, without malice, at a time when he was in no danger, real or apparent, of losing his life, or of receiving great bodily harm, at the hands of the deceased, you will find him guilty of manslaughter, and the form of your verdict will be: ‘We, the jury, find the defendant guilty of manslaughter.’ ”

It is argued by counsel for appellant that there are only two theories arising out of the evidence in this case, to wit: First, a case of murder; second, a case of self-defense. The state claims that there is another theory from the evidence — a case of manslaughter. If the jury believed only the testimony introduced by the state, they could have found appellant guilty of murder. On the other hand, if they believe only the testimony for the defense, they could have acquitted him. But a careful reading of the entire record in this case leads us to conclude that the jury could have considered together all of the testimony, that for the state as well as that for the defense, and, after harmonizing it as far as possible, could have decided that appellant was not guilty of murder, nor was he justified in killing deceased, but that he was guilty of manslaughter. They could have believed some of the testimony for the state and some of that for the defense. To illustrate: The theory of appellant’s defense depends in a large measure upon the fact that deceased was assaulting him with a knife when he fired the fatal shot. Now the testimony shows that the knife was afterwards found on the ground near the place of the altercation, and that it was closed, and the testimony of the surgeon showed that the scratch, or slight wound, over appellant’s eye, might have been caused .by any sharp object, or by a scratch of the finger nail. The jury *144could have decided from the testimony that appellant was not cut by the knife, and that it was not really being used in the fight when he shot the deceased, and could have decided that in the sudden encounter, after being struck with the stick, which was broken, appellant, in the heat of passion, and without justification, killed deceased. Therefore, we do not believe that the trial court erred in giving the instruction complained of.

We do not see any reversible error in the action of the court in the rulings relative to the admission of certain testimony by Dr. Primrose, the surgeon who attended deceased, with reference to the course of the bullet in the body of deceased. He was permitted to testify what he actually knew of the wound, and through what organs in deceased’s body the bullet would have gone, if it followed a certain course, and the effect of such wound. He did not probe the wound, nor did he make any autopsy of the body. The bullet did not come out, but remained in •the body. In the absence of knowledge from an internal examination, the surgeon was not permitted to express his opinion as to the course of the bullet.

Affirmed.