Boykin v. State

86 Miss. 481

• Court: Mississippi Supreme Court
• Decided: April 15, 1905
• Status: Published

Opinion

HoustoN, J.,

delivered the opinion of the court.

At the April term of the Clarke county circuit court the appellant was jointly indicted with his aunt, Mrs. Garrison, for the murder of Marvin Long. At the next term of said court the case was nol-prossed as to Mrs. Garrison. At the March term, 1905, the defendant was tried and convicted of manslaughter, and sentenced to ten years in the penitentiary, from which conviction he prosecutes this appeal, and mainly assigns as error the refusal of on© instruction requested by him, the modification of four others, and the granting of two instructions requested by the state.

We think the court erred in refusing the instruction asked by appellant. The evidence for appellant shows that he had forbidden the removal of the sugar cane which had been banked on his premises by Jackson Long (who was his tenant the year before, and the father of deceased) until the accounts between them had been settled, and had posted a notice on the cane bank to that effect; that, on the day of the killing, said Long and his son Marvin went upon the premises of appellant with their wagon to remove this cane situated thereon; that, seeing them coming after it, appellant, who was working in the field near said cane with one McQuirter, went to the cane bank, accompanied by his aunt, Mrs: Garrison, and said McQuirter, and arrived there about the time (perhaps a little before) the Longs did; that, when the two parties first met, they spoke, and there was no manifestation of any unfriendly feeling existing between them. Jackson Long, the only eyewitness for the state, says that when he arrived at the cane pile he (quoting) “noticed a board on it with a note on it, and I asked Boy-kin what that note meant, and Boykin said, 'It is to forbid you or any one from taking that cane until you pay me for that sack of meal;’ ” that witness denied owing appellant; and that, when appellant repeated and reiterated that he did, witness said, “You are a liar,” and walked up to the appellant, and, while the colloquy was going on, witness (quoting) “got off of wagon, and was going round to the cane pile with, my hoe, to drag the dirt off of the cane pile, to get my cane.” As to the above facts there is no substantial, if any, difference between any of the witnesses as to what occurred. In fact, this is virtually so stated with commendable frankness in the brief of the able assistant attorney-general, who, in view of the un-contradicted testimony of two or three witnesses that appellant was a sickly, weak boy all of his life, also admits that “it appears that Boykin was not a strong man.” Appellant, 'his aunt, and McQuirter (the only eyewitnesses except Jackson Long) all swear substantially, with some immaterial differences, that the latter (Long) became angry, and, after calling appellant a liar, struck him with his fist, then caught him by his throat, and, while he was choking him with one hand and striking him in the face with the other, Mrs. Garrison asked Marvin Long to aid her to stop them from fighting; that he replied that he would not, but was “going to beat hell out of Will Boykin with a stick;” and, picking up a heavy hickory walking stick which appellant had carried there with him, but thrown down on the ground before the difficulty began, deceased began to severely beat appellant with it, while Jackson Long continued to choke and strike appellant. Appellant swears that just at that time, 'when Jackson Long was also doubling him back, choking him, he succeeded in getting his pocketknife from his hip pocket, opened it, and cut bim. loose from his throat; that he (appellant) ran back from Marvin Long, who continued to follow him up, striking him with the stick, until finally he cut him, exactly how many times he does not know, but that he ceased to cut him as soon as deceased stopped striking him with the stick; that just before this appellant tried to wrench the stick out of Marvin Long’s hands. Mrs. Garrison also swore that Marvin Long continued to strike appellant with the stick, and then Boykin cut him. Appellant testified that he did not want or expect or intend to have any trouble with the Longs before going there, in which he is corroborated by Mrs. Garrison and McQuirter; tbat wben J ackson Long, at the very beginning, became angry, he told him he did not desire to have any trouble, and would rather give him the debt. He also testified that both he and Jackson Long were jointly interested in the cane, and that some of it had never been divided. If it was true that he and Jackson Long were jointly interested in this cane, then the Longs, in coming upon his premises to remove it before it was divided, were trespassers ; and as the relation of landlord and tenant had existed between appellant and Jackson Long, and as this cane was produced on the landlord’s premises, if it be true, as appellant-swore, that Jackson Long owed him for supplies furnished, then appellant had a landlord’s lien therefor on this cane; and, in attempting to remove same, the Longs were not only guilty of a trespass, but if the removal had been completed, they would have been guilty of a misdemeanor, by express provision of our statutes. Now, whether all this evidence was true or not was for the jury; and we think the appellant was entitled to have his theory of the case, on -this phase, of it, submitted to them under the instruction asked, which only announced that “if the jury believed from the evidence” certain facts, most of which were uncontradicted (in truth, admitted), it amounted to a trespass on the part of the Longs. Manifestly, these facts upon which this instruction was predicated, if the jury believed them, demonstrated that the Longs were trespassers. Jackson Long swears, and the brief of the assistant attorney-general admits, that the cane was banked, and that the trouble occurred upon appellant’s premises, and that the Longs came there to remove it. Indeed, this trespass committed by the Longs was the very origin and cause — the causa causcms, so to speak — of the whole difficulty which resulted in the death of the deceased. At the very moment that the combat began they were trespassers on appellant’s premises, and, over his protest, were proceeding to commit another trespass. Then, if they were trespassers, the instruction only announces that “Boykin had the right,” not to kill the Longs, but “to employ such reasonable force as might be necessary to prevent the trespass;” that they did “not have the lawful right to resist such” reasonable “force;” and that, “if the jury believed they employed means in resisting such reasonable force which was likely to produce death or to inflict great bodily harm on defendant, then defendant had the lawful right,” not to kill them, but only “to meet such resistance, and if, in so doing [that is, in meeting the resistance], the defendant wounded the deceased by cutting him with a knife, from which wound he died, such killing was justifiable.” We think the instruction announced, in well-guarded language, the rights of the defendant under the law as applied to this competent and material evidence which had been adduced, and that its refusal was error, under the principles enunciated in Ayers v. State, 60 Miss., 709, and other cases.

We deem the modifications made by the court of instructions Nos. 1, 3, 19, and 20 for appellant erroneous. We think the charges, as framed and asked by appellant’s counsel, correctly announced the principles of law as applied to the competent, pertinent evidence, and his theory of the case; and, as held in Lamar v. State, 64 Miss., 428, and other cases, this was a right which the law guaranteed him, and the modifying, restrictive clauses inserted by the court, by injecting other propositions into them, might, and probably did, serve to confuse and mislead the minds of the jury, and to deprive the defendant of a clean, clear-cut enunciation of the law as applicable to his theory of self-defense. As this case must be reversed, we will only add this observation to this branch of it: That, where the prosecution desires a modification of the principles of law as set forth in defendant’s instructions, the better practice is for it to ask the court for a separate instruction. Mask v. State, 36 Miss., 77; Archer v. Sinclair, 49 Miss., 343.

In our opinion, the fifth instruction granted the state is • plainly and palpably erroneous, in failing to embody the idea and to inform the jury that the fact upon which the untruth or falsehood is stated must be material. As given, it told the jury that they might, in the consideration of the case, wholly disregard the entire testimony of any witness who, they believed, from the evidence, beyond a reasonable doubt, had willfully and corruptly testified falsely to any fact in the ease, no matter how immaterial or collateral, or even incompetent or irrelevant, that fact might be. So far as our research extends, there is a unanimity in the authorities in all jurisdictions on the proposition that, in order to authorize or justify the jury to reject the whole testimony of a witness on the ground that he -has willfully and corruptly sworn falsely in the case, such false testimony must have been in relation to a material fact. In Am. & Eng. Ency. Law, vol. 30 (2d ed.), p. 1072, under the general title of “Witnesses” and the subtitle of “Falsus m uno, falsus in omnibus ” this language is used: “To authorize the application of the doctrine, it is not sufficient that the testimony of the witness is in some particular simply untrue or that he even willfully swore falsely to an immaterial fact. It must appear that he has willfully and knowingly sworn falsely to a material fact.” Citing many decisions from 23 states, and two cases from the circuit court of appeals of the United States. See also 29 Am. & Eng. Ency. Law (1st ed.), p. 780, and cases cited. The principle enunciated by this court in Shaw v. State, 79 Miss., 21 (30 South. Rep., 42), cited by the assistant attorney-general, does not, in our opinion, militate against this doctrine. None of the other instructions given defendant related to either of these two particular phases of the case, or the principles of law applicable thereto. Most of them were very general, and many only announced abstract propositions. It is no answer to say, as contended by the assistant attorney-general, that the court and the jury pass upon the materiality of the evidence, and that it is presumed that every fact allowed to go to the jury is material. The evident reply to such a contention is that the question here is as to the credibility of witnesses and. the weight to be attached to their evidence, of both of which the jury are the sole judges. The court only decided upon the relevancy and competency of the evidence, and it may, and frequently does, admit evidence which, though relevant and competent, does not prove to be material in the consideration of the case. It is but simple justice to the accomplished trial judge to say in this connection that it appears from his own statement in the record, made on a motion for a new trial, that in the original draft of this instruction, as submitted to and given by him, the word “material” did appear, and the cause of its inadvertent omission in the instruction,' as it was finally read to the jury, is not fully developed or clearly shown by the record before us, thus showing — inferentially, at least — that he recognized the eminent propriety, if not legal necessity, for this qualifying word in the charge. The assistant attorney-general, in his brief, concedes that it is usual and proper to use this restrictive word in such charges, but contends that its omission could work no harm, except under peculiar circumstances — in other words, that, while it was error, it was not fatal, reversible error. We cannot affirm that this erroneous instruction did not' mislead the jury and prejudice the cause of appellant. On the contrary, from this record, we can see how it might, and probably did, do so. In McDonald v. State, 28 South. Rep., 750, the court reversed and remanded the case alone because of the giving of the following instruction for the state — “If any witness has made statements out of court different and contradictory from those made in court in this case, then you may disregard the whole testimony of such witness or witnesses, if you see proper . . .” — - saying: “It does not even qualify by requiring the statements out of or in the court to be material. It would operate upon the mind of the average juror as an injunction not to believe "anything the defendant said, if some one testified that he anywhere in his testimony contradicted anything he had said outside. It is dangerous thus to experiment on the exploded doctrine of 'falsus in uno/ etc. Snob efforts to get some advantage from tbe old doctrine must lead to numerous reversals.”

Nor do we think the charge given the state numbered 6 in the record should have been granted, in view of the facts of this case. It instructs the jury that if the defendant was cutting Jackson Long with a knife, which was a deadly weapon, not in his necessary self-defense, then Marvin Long had the lawful right to attack the defendant while he was so cutting Jackson Long with a knife, even .to the taking of his life. Aside from any other objection, it is clearly subject to the criticism that it assumes as true a material fact prejudicial to defendant, of which there is no evidence — to wit, that the defendant was cutting Jackson Long with a knife when Marvin Long attacked defendant. Now, Jackson Long, the only witness for the state relative to this point, swears that the combat, and even scuffle, between himself and defendant had entirely and completely ended, and that defendant had turned him loose and quit, not only before defendant cut deceased, but even before deceased had alighted from the wagon. On the other hand, the appellant and his two witnesses swear in effect, if not in so many words, that appellant did not commence using his knife or cutting Jackson Long until after deceased had gotten off of the wagon, grabbed the stick, and begun and continued to strike Boykin with it. So that, in either view, the instruction assumes the existence of a state of facts which the evidence both for the state and the defendant shows was not proven. .And this court has settled beyond cavil or controversy, by repeated adjudications, that an instruction, in the absence of evidence upon which to predicate it, is erroneous, and that such an instruction, not based upon evidence, is fatally erroneous, if by any means it might mislead the jury. Oliver v. State, 39 Miss., 527; Frank v. State, Id., 705; Fore v. State, 75 Miss., 727 (23 South. Rep., 710); Cooper v. State, 31 South. Rep., 580; Smith v. State, 75 Miss., 542 (23 South. Rep., 260); Spradley v. State (Miss.), 31 South. Rep., 534; Rogers v. State, 82 Miss., 479 (34 South. Rep., 320); Cothran v. State, 39 Miss., 541. Due objections and exceptions were taken to the action of tbe court on all of these instructions.

As shown by the evidence and the bill of exceptions taken on the motion for the new trial, objection was also made to said fifth and sixth instructions on account of the circumstances under which they were granted. The prosecuting attorney presented the instructions to the court for the first time during the closing argument for the defendant, and the court gave them. Counsel for defendant testify that they were in utter ignorance of their having been granted until after they had concluded their arguments, and that their attention was called to the same for the first time when the district attorney began to read them to the jury in his closing argument, whereupon they objected to his reading said instructions on the ground that they were given by the court while counsel for defendant was making the closing argument, and were never submitted to them, and they knew nothing of their existence, which objection was overruled by the court, and the district attorney proceeded to argue and comment on them without even offering to defendant’s counsel the right or opportunity to reply thereto or to discuss said instructions, to all of which due exceptions were taken. This evidence brings the case squarely within Montgomery v. State, 85 Miss., 331 (s.c., 37 South. Rep., 835), where this court condemned exactly the same practice, and reversed and remanded the case on account thereof. The facts in the instant case make it even stronger than in the Montgomery case; for there, when the defendant’s counsel objected to the reading of the instruction, the state’s counsel offered him the right to answer it or reply thereto. As this is a question of importance, which arises constantly in the trial of causes, and which, if the proper practice is not observed, will necessitate frequent reversals, and the consequent entailment of costs on the state and other litigants, we take occasion to commend and reaffirm the announcement of the Montgomery case relative to' the proper practice as to instructions, especially in cases where the life or liberty of tbe citizen is involved and where the state always has the closing argument. We depreciate any deviation from the rule as therein announced.' In our opinion, it will be conducive to a due and proper administration of justice, and certainly be fair to court and to counsel, as well as to defendants, the state, and all litigants, to require that opposing attorneys shall present to each other the charges which they intend to request, at some time prior to final action thereon by the court, in order that either side may, if they so desire, request additional instructions applicable to their theory, or may make objection to the court to the instructions given or requested by their opponent, and may reserve due exceptions to the action of the court in the premises. This will not only be fair to the litigants and the attorneys, but to the court, who will thereby be given an opportunity to modify or refuse any instruction, or to correct any error which he may have committed, before the instruction is finally passed on by him and read to the jury. In the haste and hurry almost necessarily incident to a nisi prius trial, any judge, no matter how qpick his perception or keen his discrimination or deep his legal knowledge, will naturally and necessarily commit errors if many instructions are presented to him during the closing arguments, without opportunity for objection from opposing counsel, which errors might be avoided or corrected if instructions were seasonably presented and such opportunity given counsel for each side.

It -residís that the Gase must be reversed and remanded.