Walton v. State

57 Miss. 533

• Court: Mississippi Supreme Court
• Decided: October 15, 1879
• Status: Published

Opinions

George, C. J.,

delivered the opinion of the court.

The plaintiff in error was convicted of murder and sentenced to death. He asks for the reversal of this judgment because the court refused to give an instruction to the jury informing them that, in case they failed to affix to his crime the punishment of confinement for life in the State Penitentiary, then it was the duty of the court to impose on him the penalty of death. We think the court erred in refusing the charge.

It is true that when the question submitted to a jury is alone as to the guilt or innocence of the accused, they have nothing to do with the punishment to be inflicted, in case they render a verdict of guilty. Their duty is simply to find the fact of guilt or innocence, according to the evidence before them, and a charge from the court as to the punishment to follow conviction could have no other effect than to deter them from discharging their duty. But in this case, that was not the sole question submitted .to the jury. They are invested by law with the .power, and charged with the duty, of determining which of two punishments shall be inflicted. It is true, the statute does not in express terms say that they shall choose between the two punishments ; but such is its necessary meaning and effect, for tbe failure to choose one of them necessarily imposes the other. A failure expressly to choose one is a necessary though tacit choice of the alternative. The duty, or privilege, if that term is preferred, of choice between tyro, necessarily involves tbe idea of knowledge as to the alternatives about which the choice is to be exercised. Certainly the legislature did not intend that there should be a blind and unreasoning choice, but a careful, intelligent and discriminating selection. It is impossible to conceive that this could be done if the jury were ignorant of one of the two punishments between which they were to select. It was a necessary element, in determining whether the imprisonment for life should be inflicted, to know whether a milder or greater punishment might or must necessarily be inflicted, in case of their omission to affix imprisonment. The jury might have supposed that the punishment to be inflicted, in ease of their failure to act, would-be milder than imprisonment for life, and for that reason have failed to act; or their failure may be attributable to a belief on-their part that, in that event, the punishment would be left to the discretion of the judge.

We are not authorized to assume, as an answer to this view, that the jury were well acquainted with the law condemning the prisoner to death in case they failed to impose imprisonment. It would very materially change the character and modify the functions of this court if our duty should be held to be, not to determine upon the legality of instructions asked by testing the principles stated in them by our knowledge of the rules of law, but by an inquiry, impossible of certain solution, as to how much or how little instruction the jury needed, based upon the further equally fruitless inquiry as to how much each individual juror might know. It is true that as to his business transactions and civil conduct, every man is presumed to know the law. This presumption we know, in most instances, to be false, and it is indulged in only from a necessity which mainly arises from the impossibility of determining how much or how little law any man knows. But the presumption is the contrary as to jurors, so far as it relates to principles of law applicable to the case before them, and about which the court is asked to charge them. As to these, they are presumed to know nothing, and to derive all tbeir knowledge from the court. If we consider, as we legally must, in determining the propriety of the charge refused by the court below, that the jury were ignorant of the law which made the infliction of the death penalty the only alternative of their omission to affix imprisonment for life, that they were called upon to decide between two punishments, one of which must necessarily be inflicted, and were kept in ignorance as to the nature and extent of one of them, the great wrong done the prisoner by the refusal of the instruction will be at once perceived. Certainly there can be no principle of law or public policy which could justify the condemnation of a man to death by a tribunal which was ignorant of the fact of condemnation when it was made.

We do not understand the view taken in the dissenting opinion to be that the instruction, if given, would have been improper,but that the judge is to be excused for the failure to give it because, on the modification of the charge, this part of it was inadvertently omitted, and that it is incredible that the jury should have" been ignorant of the law omitted to be stated to them. Inadvertence, however much it may be considered as an excuse for the non-performance of a legal duty, can never be held to be equivalent to performance, or to be a substitute therefor. The wrong to the accused is just as great,, whether the failure to give the charge resulted from the innocent mistake of the judge or his wilful refusal. The belief that the jury could not have been ignorant of the law thus declined to be charged to them is equally unavailing. The question to be determined by us is not as to the extent of the knowledge of the jury, as to which we have no criterion whatever for forming an opinion, but as to the propriety of giving or refusing the charge, tested by the principles of law applicable to the case. That such a belief in tbeir knowledge would be but a poor substitute for the actual imparting of this knowledge by a proper instruction is. made evident when we consider that the choice of imprisonment for life may be prevented by one juror alone, and his ignorance may be the cause of his disagreeing with his fellows. Under the present system of selecting juries in this State, it is not incredible that one member, at least, of some one jury might be ignorant of that or any other named principle of law. So far as we know, the fact that the jury were already well acquainted with the law has never been held a good answer to the objection that the court refused a legal and proper instruction, and we do not consider this a proper case in which to make a precedent of that kind, if we had the power. Judgment reversed and cause remanded.