
    Youngblood v. State.
    Jan. 12, 1953
    No. 38582
    15 Adv. S. 11
    62 So. 2d 218
    
      Breed O. Mounger, for appellant.
    
      
      J. T. Patterson, Assistant Attonxey Gexxeral, for appellee.
   McGehee, C. J.

The appellant, Hosea Youngblood, was indicted and tried in February 1952, for the alleged murder of Bay Broomfield on December 8, 1951. The jury convicted the accused of the crime of manslaughter and he was sentenced to serve a term of fifteen years in the state penitentiary. Upon his appeal here he assigns as ground,® for a reversal of the case (1) that the trial court denied his motion to exclude the evidence at the close of the State’s case and direct a verdict in his favor; (2) that he was refused a peremptory instruction at the close of all of the evidence; (3) that the verdict is contrary to the overwhelming weight of the evidence — a ground not assigned in a motion for a new trial; and (4) the granting of instruction No. 3 for the State, the substance of which will be hereinafter set forth.

We shall consider the first two grounds of alleged error above set forth the same as if one assignment for the reason that they involve the single question on appeal here of whether or not the whole evidence was of sufficient weight to present an issue of fact for the jury, as against the plea of self-defense. On that question, it is to be conceded that the testimony, even of the State’s witnesses alone, is in hopeless conflict in many particulars as will be hereinafter shown.

The testimony of the State’s witnesses as a whole shows that the defendant was seated at the end of a bench in church on the evening of the homicide and that Bay Broomfield, who was later shot by the defendant Hosea Youngblood, came and sat o'n the same bench near him and began reading alond from a questionnaire tbat he bad received from tbe local Selective Draft Board; tbat tbe mother of tbe deceased (tbe designation of tbe “deceased” being of course in tbe present tense, and not as of December 8, 1951, before be was sbot) asked tbat be quit reading alond, evidently because be was disturbing those near him who were listening to tbe church services; tbat tbe deceased then sought an argument with tbe defendant about whether tbe former knew bow to read and whereupon tbe defendant stated tbat “I have not said anything to you about whether you can read or not”; and tbat thereupon tbe defendant got up and went out of tbe church, with tbe deceased following him, although some of tbe State’s witnesses say tbat they went out “side by side” and tbe shooting occurred on tbe churchyard shortly thereafter. One or possibly as many as two of tbe several witnesses for tbe State testified tbat tbe defendant invited him to “come follow me out”, but tbe other witnesses did not bear this invitation extended by tbe defendant.

Tbat State’s evidence further shows tbat upon seeing tbe deceased follow tbe defendant out of tbe church, tbe mother and two of tbe sisters of tbe deceased left tbe church and tried to get him to come on back into tbe church; tbat be then demanded tbat they let him alone and threatened violence to bis mother unless she would leave him alone; tbat upon tbe failure of tbe mother and sisters of tbe deceased to be able to persuade him to “come on back” in tbe church, and as some said “leave Hosea alone”, tbe wife of tbe defendant intervened and said “let him go ahead, Hosea will stop him”, tbat at tbat time the wife of tbe defendant was pointing or shaking her finger in tbe face of tbe deceased, and tbat as be “shoved” her band from near bis face, tbe defendant said “stand back Willie Mae” and then drew bis pistol and sbot tbe deceased in tbe side; tbat it was found tbat tbe deceased was unarmed, although some of tbe State’s witnesses admitted that he had his left hand “up to his bosom” when the shot was fired by the defendant, while others claimed that he had his hand “in his bosom”, whereas one or two of them testified that oh the contrary he had his hands “down by his side”, all of which would tend to support the theory of self-defense except the testimony of those who said that the deceased had his hands “down by his side” when he was shot — and this testimony was obviously not true since he was shot through his hand and the only bullet that was fired had entered the lower left chest of the victim.

There was other testimony however to the effect that when the wife of the defendant got into the pathway of the deceased, and at a time when the defendant was about ten feet away, the defendant advanced for about half of the distance and shot the deceased who had not attempted to harm the defendant, whereas the wife of the defendant testified that the deceased struck her with his fist; that he threatened “to stop her heart strings from ticking” and made the same threat toward the defendant immediately prior to the shooting; and that the deceased put his hand in his bosom as he was leaving the church, although he was not shot until after a quarrel had occurred on the outside of the church between Broom-field, his mother and sisters, and later between him and the Youngbloods.

Although the proof shows that the only shot fired went through the fleshy part of the left hand of the victim before entering his lower left chest, it is likewise undisputed that the latter was right-handed.

The jury evidently believed that the defendant shot the deceased when the latter either “shoved” or hit the wife of the defendant and that he acted too hastily, even though the deceased was the aggressor at the beginning.

It would unduly prolong this opinion to review in detail all of the conflicting testimony, and it is sufficient to say when it is considered as a whole there was presented an issue of fact for the determination of the jury, and that the case was not one for a peremptory instruction.

On the third assignment of error, it is to be conceded that if the verdict is against the overwhelming weight of the evidence the defendant would have been entitled to a new trial upon motion duly made in that behalf. But under the rule announced in the case of Young v. State, 212 Miss. 460, 54 So. 2d 671, it was held that, “in order to preserve for review here the point that the verdict was contrary to the great weight of the evidence, a motion for a new trial must be made, particularly assigning that ground.” Citing Justice, et al. v. State, 170 Miss. 96, 154 So. 265, and in the Young case the Court further stated, (in regard to the question of whether a reversal can be granted here on the ground that the verdict is against the great weight of the evidence): “Inasmuch as no motion for a new trial was made, and the trial judge had no opportunity to rule upon that question, it follows that there has been no error in that respect for us to review here. Faust v. State, 204 Miss. 297, 37 So. 2d 315; Holmes v. State, 201 Miss. 509, 29 So. 2d 312; Cunningham, et al. v. State, Miss., 200 So. 248; McDougal v. State, 199 Miss. 39, 23 So. 2d 920; Dixon v. State, 188 Miss. 797, 196 So. 637; McLendon v. State, 187 Miss. 247, 191 So. 821; Byrd v. State, 179 Miss. 336, 175 So. 190; Davis v. State, 173 Miss. 783, 163 So. 391; Bryant v. State, 172 Miss. 210,157 So. 346.”

The instruction No. 3 for the State told the jury in substance that the jurors should not hunt for doubts with a view of finding any excuse or apology for their verdict and that they should not indulge in doubts that are merely conjectural, but that any “doubts which ought to make you pause and hesitate must be reasonable doubts, . . . and you should not hesitate to find the defendant guilty because you are able to say, outside of the evidence, that he might have been innocent . . . ” The appellant objects to this instruction because it told the jury that it should not “hunt for doubts”, and because the instruction cautions the jury not to “pause and hesitate” unless they were troubled with doubts that were reasonable; that the instruction does not tell the jury what to do when they find a reasonable doubt .except that they shall “pause and hesitate”, and that in considering the case they should not do so with the view of finding any excuse or apology for their verdict.

The criticism of this instruction is not unfounded. In fact, similar instructions have been frequently disapproved by our Court, although the giving thereof has not been found to constitute reversible error. Hemingway v. State, 68 Miss. 371, 8 So. 317; Howell v. State, 98 Miss. 439, 53 So. 954; McNeal v. State, 115 Miss. 678, 76 So. 625. And we take this opportunity of again emphasizing, that an instruction similarly worded should not be given. Such an instruction is not needed by the State for presenting the issue for the determination of a jury in any criminal case, and the same is calculated to mislead the jury in some cases.

The other instructions complained of contained correct abstract principles of law, and in our opinion they are not erroneous as applied to the instant case. And while we do not think that instruction No. 3, containing the admonitions complained of, should have been given, the Court has reached the conclusion, after a careful study of all of the evidence, that the guilt or innocence of the accused was peculiarly a question for the jury, and that since this is true we are not justified in reversing the instant case for a new trial on the weight of the evidence, since this point was not preserved for review in a motion for a new trial, as hereinbefore stated.

The judgment appealed from must therefore be affirmed.

Affirmed.

Robercls, Hall, Holmes and Arrington, JJ., concur.  