Imbraguglio v. State , 196 Miss. 515 ( 1944 )

DISSENTING OPINION. The defendant owns a building in the City of Laurel, not far from an army camp and just off of the military reservation. He operates a cafe on the ground floor of this building, and rents the upper rooms, one of which he rented by the week to two prostitutes from Cleveland, Ohio, in which they plied their trade; and the only question for the jury's determination was whether the appellant knew, or had reason to know, that they were so doing. This court holds that on the evidence that question was for the determination of the jury, but has reversed its verdict solely for the reason that in one of the state's instructions the jury were told that they "must believe him to be guilty beyond a reasonable doubt," instead of that they "must believe him to be guilty from the evidence beyond a reasonable doubt." The instruction should have contained the words "from the evidence"; but their omission therefrom was perfectly harmless, Davis v. Waynesboro Hdw. Co., 151 Miss. 532, 118 So. 541, and could not have misled any man with intelligence enough to qualify as a juror.

When this jury was empaneled each of its members, in accordance with Section 1793, Code of 1942, swore to try all issues submitted to them by the court, "and true verdicts giveaccording to the evidence." (Italics supplied.) This oath, of course, the juror is supposed to carry with him throughout the trial of a case. Moreover, the state was given two instructions, one of which required the jury to believe, from the evidence. The defendant obtained several instructions, one of which charged the jury that "It is your sworn duty to vote for an acquittal of the defendant until you are convinced from the testimony beyond a reasonable doubt that he is guilty as charged;" and by another "that the state must prove the defendant guilty beyond a reasonable doubt by trustworthy and credible testimony."

All instructions given the jury should be read together, just as if the court had given one instruction covering all of them. If that is done here, it will appear that the court, after instructing the jury that they must believe the appellant to be guilty beyond a reasonable doubt before they could convict him, then said to them that "It is your sworn duty to vote for the acquittal of the defendant unless you are convinced by thetestimony beyond a reasonable doubt that he is guilty as charged;" and "the state must prove the defendant guilty beyond a reasonable doubt by trustworthy and credible evidence." (Italics supplied.) If one instruction can cure an error in another, as this court has many a time and oft held could be done, the error in the state's instruction, for which the verdict of this jury is being set aside, was here cured by the instructions granted the appellant.

I do not know what the instructions in Walters v. State,176 Miss. 790, 170 So. 539, were other than the one set forth in the court's opinion, and consequently do not know whether the court's holding that the error in the instruction was not cured by any other applies here. Moreover, I think the omission of the words "from the evidence" in an instruction to the jury, in view of a juror's oath, and the usual procedure in all trials, is a mere fly speck, for the commission of which it is a rare case that should be reversed.

The judgment of the court below should be affirmed.