
    Rester v. State.
    [70 South. 881]
    1. Homicide. Instructions. Manslaughter. Evidence. Verdict. Appeal. Harmless error. Condition of weapon.
    
    Where on a trial for murder, the evidence for the state, if believed convicted the defendant of murder, if anything, and the evidence of the defendant, if believed, established a clear case of self-defense, it was error for the court to grant the state an instruction authorizing a verdict of manslaughter.
    2. Homicide. Verdict. Manslaughter. Evidence.
    
    In such a case a verdict of manslaughter pursuant to such instructions, not being supported by the evidence, was error. .
    3. Same.
    In such case such instructions on manslaughter was not rendered "' harmless, because the verdict of manslaughter was favorable to accused.
    4. Homicide. Instructions. Manslaughter.
    
    Where in a trial for murder the evidence for the state, if believed, convicted the defendant of murder, and the evidence for the defendant, if believed, established a clear ease of self-defense, defendant was entitled to an instruction telling the jury expressly that they must either convict the defendant of murder or acquit.
    5. Homicide. Evidence. Condition of weapon.
    
    In a trial for murder it was not error for the court to permit a witness for the state to testify that the rifle of deceased was on safety though several hours had elapsed since the shooting; when the evidence disclosed that all parties left the scene of the homicide immediately after the shooting, without disturbing the- body of deceased, and there was nothing in the evidence to indicate that any one approached the body of the deceased for examination or other purpose before the sheriff’s posse arrived.
    Appeal from the circuit court of Pearl River county.
    Hon. N. Ei. Weathersby, Judge.
    Tom Rester was convicted of manslaughter and appeals.
    The facts are fully stated in the opinion of the court.
    
      Parker & Shivers, for appellant.
    
      Lamar F. Easterling, Assistant Attorney-General, for the state.
   Stevens, J.,

delivered the opinion of the court.

Appellant, together with one Roy Davis, was indicted by the circuit court of Pearl River county for the murder of one Sol Ladner, tried and convicted of manslaughter. The homicide occurred August 28, 1914, on the public highway near the east end of a little bridge across “Alligator creek” seven or eight miles east of the town of Poplarville. It appears that on the day of the difficulty the deceased, in company with his relatives, R. Ladner and Aaron Ladner, had been fishing on Alligator creek from about eight o’clock in the morning to somewhere between twelve and one o’clock; the deceased being engaged in shooting fish on this occasion by the use of what is termed a high-pressure rifle that projects with great force a steel bullet, and his associates using the hook and line. The deceased had spent the preceding night with his uncle, R.. Ladner, the principal state witness in this case, and this fishing party took with them that morning a quart of alcohol which they diluted to. some extent with water and sugar, and which they drank freely during the forenoon. Appellant on the morning of the difficulty left his home in Poplarville, as he says, to go to the home of one Tom Lee to consummate a deal for a pair of mules. Appellant took with him an automatic shotgun, and when in about .a mile of th#scene of the homicide he met with one Leroy Davis, who accompanied appellant on his journey. It is appellant’s contention that he left his mule at the home of George Davis at the suggestion of Leroy and proceeded on. foot in company with Leroy Davis in order that they might hunt turkeys as they went and came.

Bad blood existed between appellant and the deceased, and it appears that threats had been freely uttered by the •deceased and communicated to appellant for a long time before the killing. This bitter feeling had existed to the •extent that about a month prior to the killing the deceased, armed with a shotgun, waylaid appellant by stationing himself in a thick clump of what is known as gallberry bushes; but his presence and position were discovered by appellant, who, being also armed, threw his gun upon the deceased, and under the startling circumstances of this near tragedy discussed his trouble with deceased, and told him that, if he (deceased) would promise to go about Ms business and make no further demonstration and attempt to take the life of appellant, he (appellant) would not kill him or give him any trouble. There is evidence, however, that after both departed they gave conflicting versions of this near tragedy, some of the witnesses testifying that deceased stated the only reason he did not kill appellant on this occasion was that appellant was too quick for him, and other witnesses for the state testifying that appellant reported that the only reason he did not kill deceased was that his gun was tricky, and he was afraid to risk it. There is no evidence that appellant knew that the deceased was fishing on this creek the day of the homicide or that he expected to encounter the deceased, on that occasion. The main state witness, R. Ladner, was a cousin •of the deceased, the father-in-law of appellant, also distantly related by blood to appellant. One witness testifies that the deceased, familiarly referred to as “Uncle Sol,” sought to induce one John Ladner to kill appellant together with one Davis. It appears further that the younger Ladner, Aaron, who carried the wallet containing the fiery refreshment, was so badly iriSfoxicated at the time of the shooting that he could not be used as a witness in this case. At the point where the bridge crosses Alligator creek, the creek runs north and south, and the public highway east and west. The fishing party had been up the creek that morning, and in returning, according to the testimony for the state, the two Ladners arrived at the’ bridge in advance of the ^deceased, and found appellant and his companion standing together at the east end of the bridge. The evidence is conflicting, however, on this point; appellant testifying that the two Ladners were already at the bridge when he and Mr. Davis arrived that far on their journey. R. Ladner, appellant, and Leroy Davis were engaged in conversation, when, according to the testimony of the only state witness attempting to detail the facts, appellant threw his gun quickly to his shoulder and fired five times as rapidly as he could shoot his automatic shotgun, which carries its cartridges in a a magazine and expels the empty shells as it shoots. R. Ladner says, when appellant began firing, he was standing facing south and therefore had his back turned toward the direction in which appellant shot. He says he turned his head, however, and looked up the creek and saw the deceased sinking to the ground about twenty-six steps north and east of the creek; that imonediatelv after appellant fired the five shots his companion, Roy Davis, took cover under a pine tree standing between him and the deceased and fired once upon the deceased, exclaiming at the same time, “I got him,” or words to that effect; that thereupon the witness heard appellant working his gun, and he turned and saw appellant advancing several steps toward the deceased and fire twice more; that at that time deceased was prostrate and dying. This witness did not see the deceased at all at the time appellant commenced firipg.. The exact testimony on this point is as follows:

“Q. And you could not see behind you, of course? A. No, sir. Q. And you could not tell who was behind you,. and therefore you could not see Mr. Ladner? A. No, sir. Q. And you did not see him? A. No, sir.”

This witness admits he had been drinking, hut denies being drunk. There is some testimony to the effect that he was intoxicated several hours after the homicide.

Appellant took the witness stand in his own behalf; disclaimed any knowledge that he expected to meet the deceased on that, day, denied being armed for the purpose of killing the deceased, claimed he and his companion were on a lawful journey to transact business and hunt turkeys, and contradicted some of the material statements of the state witness as to what happened at the time of the fatal encounter. He says he was sitting on the east side of the creek on a grassy knoll facing west when he suddenly beheld the deceased coming through the woods down the creek with his high power rifle, and that deceased, on seeing appellant, threw his rifle from his shoulder in a shooting position, when he (appellant) threw his shotgun to his left shoulder and began firing rapidly. His testimony, if believed, makes out a clear case of self-defense.

There was testimony on the part of the state from the sheriff and his deputy that they went to the scene .of the homicide some four or five hours after the killing and found deceased lying with his head down the creek, his right hand near the trigger guard of his rifle, his left arm just ,to the left of the barrel, hut the rifle was on safety. The defense objected to the statement of the sheriff that the rifle was on safety, for the reason that too great time had elapsed between the time of the shooting and the time the sheriff’s posse arrived. This testimony was admitted over the objection of appellant. There is no testimony that the deceased ever fired his rifle.

Appellant attempts to justify the charge of the state witness that he fired upon the deceased after he was prosT trate and dying by testifying that after the deceased fell to the ground he raised up on his knees, attempting to get his gun into action, and there is evidence to the effect that some of the shot entering the chest of the deceased, ranged or slanted downward. There is evidence that the hack of the left hand and arm of the deceased was-literally filled with shot, and the defense contends that these shot could not have entered the back of the hand and arm and in the pit of the arm unless the deceased had his gun in a shooting position, attempting to shoot from the right shoulder, as he was accustomed to do. All of the shot struck the deceased on the left side of his head and chest. Most of these shot were small shot, hut a few of them were what is known as buckshot.

On the trial of the case the court, at the request of the district attorney, gave two instructions in reference to tve charge of murder, and in addition gave the following instruction as to the verdicts it might return, to wit: .

“First: ‘We, the jury, find the defendant guilty as charged in the indictment. ’ In which event it will become-the duty of the court to pronounce the death sentence-against the defendant.

“Second: ‘We, the jury, find the defendant guilty as charged in the indictment, and certify that we are unable to agree as to his punishment.’ In which event it will become the duty of the court to sentence the defendant to-the state penitentiary for his natural life.

“Third: ‘We, the jury, find the defendant guilty as-charged in the indictment, and fix his punishment at imprisonment in the state penitentiary for his natural life.’’ In which event it will become the duty of the court to sentence the defendant to the state penitentiary for his-natural life.

“Fourth: ‘Yfe, the jury, find the defendant guilty of manslaughter. ’

‘‘Fifth: ‘We, the jury, find the defendant not guilty. ’ ’r

The defendant asked no instruction with reference to manslaughter, but earnestly complains at the action of the trial court in granting the state the instruction authorizing the jury to return a verdict of manslaughter, and-complains of the verdict rendered in pursuance of this instruction.

The state’s evidence, if believed, convicts the defendant, of the crime of murder, if anything. The defendant’s testimony, if believed, establishes a clear and unquestioned case of self-defense. As said by our court in similar cases; there is no middle ground. This is not a case where the jury, by believing certain portions of the state’s evidence and certain portions of the defendant’s evidence, can thereby weave out or make a case of manslaughter. This is a typical case where the defendant is guilty of unprovoked murder or he is innocent. It is the province of the jury to pass upon the facts of a case and to believe parts of the evidence of either side and discard any portion of the evidence either for the state or for the defendant. It is certainly the province of the jury also to settle any issue of fact in the case, but the defendant has the absolute right to have the facts of the case presented to the jury on instructions which state the law fully.and accurately. The jury must apply the facts to the particular case in the light of, and in accordance with, the law of the case. If there is no element of manslaughter under the facts of the case, then there should be no instruction granted either to the state or to the defendant in reference to manslaughter. In the present case the defendant asked for no instruction on manslaughter, and the action of the court in authorizing the jury to return a verdict of manslaughter was error.

The verdict of the jury rendered in pursuance of this instruction and convicting the defendant of the crime of manslaughter is not supported by the evidence in the case and constitutes error.

It is contended, however, that even though the granting of this instruction is error, it is harmless error; that the verdict of the jury is favorable to the defendant, and únder the ruling of this court in Huston v. State, 105 Miss. 413, 62 So. 421; the case should and must be affirmed. The announcement or ruling of the court in the Huston Case was a new and radical departure from the previous holdings of our court. Our court, in Virgil v. State, 63 Miss. 320, Parker v. State, 102 Miss. 113, 58 So. 979, and numerous other cases, had condemned in unmistakable terms the returning of a verdict of manslaughter in a case of this kind, and the correctness of our decision in the Huston Case has been earnestly and repeatedly challenged by eminent counsel. The majority of the court as now constituted believe the Huston Case was and is wrong and should be overruled, and this court should turn to the holding of and readopt the decisions expressly overruled' by the court in the Huston Case. We have given this subject careful consideration, and hereby overrule the Huston Case, and return to the safer and sounder principle well announced by Judge Cook in Parker v. State, supra. The court in that case uses this language which meets with our approval:

“The instruction authorizing the jury to convict the defendant of manslaughter was vicious in the extreme; when applied to a ease 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 differ enees 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. ”

The crime of manslaughter in our state is defined by statute separately and apart from the statute defining murder, and there are different states of facts that constitute what might be termed different kinds of manslaughter. It has been the policy of our lawmakers as well as of the courts to recognize a marked difference between murder and manslaughter, and to provide different punishments therefor. The defendant in this case was entitled to an instruction eliminating from the consideration of the jury the crime of manslaughter and telling the jury expressly that they must find the defendant guilty of murder or nothing. As stated by Judge Calhoun in Johnson v. State, 78 Miss. 627, 29 So. 515:

■ “To say to the jury, You ‘may find’ a verdict of guilty of manslaughter, would mean that they might properly so find, whereas there is absolutely nothing in the evidence to warrant such a finding. ’ ’

The court therefore, in granting the instruction authorizing the jury to return a verdict of manslaughter, initiated the error, and thereby, perhaps, led the jury into the serious error of returning an unauthorized verdict. In the present case the .testimony of the defendant as to the demonstration made by the deceased at the time appellant began firing is not contradicted by the positive testimony of a single witness. The state is compelled to depend upon the use of a deadly weapon and other circumstances to show that appellant, and not the deceased, was the aggressor at the critical moment of the fatal encounter.. The testimonv of the accused as a witness in his own behalf cannot arbitrarily be discarded by the jury, and there is no fact or circumstance disclosed by the defendant’s own testimonv and no word uttered indicating that appellant was under the heat of passion or acted Otherwise in a way indicating manslaughter. Our court is not alone in the holding announced in Parker v. State, supra, and a long line of well-reasoned cases decided by bur court prior to the Parker Case. The same question is well treated by the case of Bates v. State, 4 Ga. App. 48, 61 S. E. 888. and other well-reasoned eases of the Georgia court. The court, speaking through Hill, C. J., in the Bates Case, says:

' “If the evidence for the state was the truth, the verdict should have been for murder. ... If the defendant’s statement was the truth, the defendant should have been acquitted. . . . The charare on the law of voluntary 'manslaughter led the jury awav from the consideration of the truth as it existed in the evidence, or.from the truth as it existed in the prisoner’s statement, andindueed them to' agree on a compromise verdict, without any evidence whatever to support it. Therefore, following the- repeated rulings of the supreme court and of this court, we are constrained to hold in this case that the law of voluntary manslaughter was improperly given in charge by the court, and that the verdict of the jury for this offense, being without evidence, must be set aside as contrary to law. ’ ’

Likewise-, in the case of Flynn v. State, 43 Tex. Cr. R. 407, 66 S. W. 551, the court of criminal appeals of Texas, through Henderson, J., says:

“Appellant’s own evidence (and he is the only witness testifying on this point) states that he shot at deceased because he believed he was advancing on him to rob him. From either standpoint it cannot be claimed there was any negligence, because there was an intention to kill. We accordingly hold that the court erred in submitting the issue of negligent homicide at all, even if it be conceded that same was properly submitted in the charge, which is not the case-here.”

We refrain from discussing the evidence in detail. It is sufficient to. say there is ample evidence of threats, of bitter feeling entertained by the deceased toward appellant, and the uncontradicted evidence reflects that appellant, to use a common expression, had the drop on the deceased at the time it appears deceased waylaid and might at that time have taken the life of the deceased, but deliberately refrained from- doing so. The setting-was such that the community would not be surprised to hear of either party having been killed.

We do not think any error was committed by the court in permitting the witness for the state to testify that the rifle of the deceased was on safety. It is true several hours had elapsed since the shooting, but the evidence discloses that all parties left the scene of the homicide immediately after the shooting without disturbing the body of the deceased, and there is nothing in the evidence to indicate that any one approached the body of the deceased for examination or other purpose before the sheriff’s posse arrived. Of course, defendant was privileged to rebut this testimony in any legitimate way.

While the law should be enforced, the liberty of defendants charged with crime should not be compromised by juries. We close this opinion with words borrowed from Judge Terral in the case of Strickland v. State, 81 Miss. 134, 32 So. 921:

“ . . . Whenever the life of a human being is in the balance, it is but just to him that the law governing the ease made against him be properly stated to the jury.”

Reversed cmd remanded.

Smith, C. J., dissenting.

Cook, J.

(specially concurring). I concur in the judgment of the majority that this case should be reversed; but I think this case and the Huston Case, 105 Miss. 413, 62 So. 421, may be differentiated. The sole issue arising from the evidence in the Huston Case was the identity of the slayer; while in the present ease Bester, the defendant, admitted that he killed the deceased. In the Huston Case the court, in its instruction to the jury, correctly define manslaughter; while in this case the court did not define manslaughter at all. In the Huston Case the jnry reached the conclusion that Huston was the slayer of Harris, but by a misinterpretation of the court’s instruction convicted Huston of manslaughter. There could have been no compromise on the facts in the Huston Case. Huston either killed Harris or he did not; there was no middle ground on this issue. The jury decided this issue against Huston, and erroneously, but to his benefit, labeled the crime manslaughter. By confiding the Huston Case within the limit of its own facts, I think the decision was logically sound.  