Mississippi Supreme Court, 1940

Davis v. State

Mississippi Supreme Court · Decided November 11, 1940 · McGehee

198 So. 572; 189 Miss. 768; 1940 Miss. LEXIS 154 (Southern Reporter)

Counsel

Earle L. Wingo, of Hattiesburg, for appellant. We do not feel that there was sufficient testimony before the jury upon which to predicate a conviction of the crime laid in the indictment for the reason that the testimony shows that the appellant did not use any deadly instrument whatever in pursuing his part of the alleged assault. For this reason we earnestly feel that the motion for a peremptory instruction of not guilty should have been sustained, and because of the error in refusing to grant the same the appellant should receive a new trial. One of the instructions for the State directed the jury to find the appellant guilty of murder merely if they believe that the appellant was present and aided, assisted and encouraged such killing. This is an improper statement of the law because it eliminates the necessary element of a felonious intent on the part of the appellant and the commission of an act feloniously and with malice aforethought by the appellant to commit the crime of murder. Under this instruction if the jury believed that the deceased was killed with malice aforethought by the act of another then the jury would only have to further believe, under said instruction, that the appellant was present and aided, assisted and encouraged such killing in order to find him guilty of murder. We submit that the instruction is fatally defective on this point. Another instruction is in the following language: "The court instructs the jury for the state that each person present at the time of, and consenting to and encouraging, the commission of a crime, and knowingly, wilfully and feloniously doing any act which is an ingredient in the crime or immediately connected with it, or leading to its commission, is as much a principal as if he had with his own hand committed the whole offense." We submit that the above instruction is confusing for the reason that since the appellant was being tried for the crime of murder the jury is told in substance that they would be warranted in finding the appellant guilty of murder merely because the proof may have shown that the appellant was present at the time of and consenting to and encouraging the commission of the crime. The instruction was highly misleading and does not state the law. W.D. Conn, Jr., Assistant Attorney-General, for appellee. The evidence fully established the corpus delicti of murder and had pointed out appellant as one of the criminal agents. Under such circumstances, it would have been improper for the court to have excluded this evidence and directed a verdict of not guilty. Both of the instructions complained of state the law with reference to persons who aid and abet the commission of an offense. This law is particularly applicable to the facts of the case at bar where it appears that all three were engaged in a joint adventure in assaulting and beating Jordan. McCoy v. State, 91 Miss. 257 , 44 So. 814; Anderson v. State, 171 Miss. 41 , 156 So. 645 .

Opinion of the Court

McGehee, J.,

delivered the opinion of the court.

It is assigned as error on this appeal that the court below refused to grant a peremptory instruction in behalf of the appellant, and also that the court erred in the granting of two instructions on behalf of the State; that by reason thereof the appellant was wrongfully convicted of the crime of murder and sentenced to serve a life term in the state penitentiary.

There was ample testimony to warrant the jury in believing beyond a reasonable doubt that the appellant, in company with two other young men, went to what is known as a road-house on a public highway, where beer and other drinks were being sold, and that while there *771 they created a disturbance on the inside of the place of business by their misconduct to such an extent that they were repeatedly asked by the proprietor to leave. That finally they went on the outside of the house to where the deceased, Elmer Jordan, a paralytic, was seated in his automobile, dragged him out onto the ground, kicked and “stomped” him on the head until he.was unconscious, bruised and mangled him almost beyond recognition, and with the result that their victim died soon thereafter because of this unprovoked and brutal assault.

There was specific proof offered as to the appellant’s actual participation in the crime, since it was shown that although the assault occurred in the nighttime he was seen to have extended his arm into the car towards the deceased immediately preceding his being dragged out of the car, and it was stated by two or three witnesses that he later kicked the deceased twice on the head. It was also shown that he thereafter stated to the jailer that he pulled the deceased out of the automobile and ‘ ‘ struck him on the head with a pistol and ‘ cold-cocked ’ him;” and there was proof that the appellant did, in fact, have a pistol in his hand and was commanding by-standers to stand back while the “stomping” was in progress.

Under this state of case the court instructed the jury that if they “believed from the evidence beyond a reasonable doubt that the deceased was killed unlawfully, wilfully, feloniously, and with malice aforethought, and that the defendant was present and aided, assisted, and encouraged such killing . . . then the defendant is guilty of murder.” It is contended that the instruction is an improper statement of the law, because it' eliminates the necessary element of felonious intent on the part of the appellant in aiding, assisting, and encouraging such killing. We are unable to agree with this contention, for the reason that if the deceased was killed unlawfully, wilfully, feloniously, and with malice aforethought, it would naturally follow that one present aiding, assisting, and encouraging such killing would be doing so feloniously.

*772 The other instruction complained of, which is of similar import to that above mentioned, we think correctly advised the jury as to the law to be applied to the facts of this ease.

¥e are therefore of the opinion that the action of the court below was correct in submitting the case to the jury, and that the instructions complained of were proper.

Affirmed.

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