Powell v. State , 67 Miss. 119 ( 1889 )

Woods, C. J.,

delivered the opinion of the court.

The appellant was convicted of the murder of one Frank Powell, and received sentence of death thereupon.

The undisputed evidence discloses that the deceased was the infant son of the accused, and that he was only of the age of eight years; that for some trifling misconduct of the child, the accused stripped the little creature naked, threw it on the floor, and savagely beat it from head to foot, for about half an hour, with a piece of rubber pipe, and that death resulted therefrom within a few moments. It is in proof that the child, at the close of the beating, exclaimed: “ I am dying,” and that the accused retorted : “ Die, God damn you,” and instantly endeavored to dash the deceased against the brick surface of the chimney. It is also in evidence that, during this protracted and merciless beating, the accused flung the little creature heavily upon the floor, and that he stamped it with his feet. This brief recital' of the facts attending the commission of this offense will be sufficient to show that no error was committed in its rulings by the court below.

The second instruction given for the state declared that if the child died from immoderate correction administered by the parent, and the jury believed from the evidence that “such immoderate correction was intentionally inflicted without just cause or excuse, and, considering the manner, the means, and the degree of inflicting, the age and strength of the child being considered, that such correction was evidently dangerous and likely to kill or produce great bodily harm, the accused is guilty of murder.” On the facts of this case, the instruction was proper, for it can never be held that a parent may deliberately inflict such punishment on his child as will likely produce death — as was clearly the case here — and yet escape criminal responsibility under cover of parental authority to correct in moderation. Indeed, there seems little occasion for consideration of this parental right of correction, in the sombre light of the facts of this case. The other instructions for the state are in the usual stereotyped form, and were correct statements of elementary principles.

Exception is taken, also, to the action of the court on defendant’s instructions. The fourth instruction, as, in fact, all the modified instructions, was made to charge the jury that if the accused killed deceased without legal excuse or justifiable cause, yet, before convicting of murder; the jury must “ further believe from the evidence, beyond any reasonable doubt, that the correction of the deceased was excessive, cruel, unusual, evidently dangerous, and likely to kill or produce great bodily harm.” The instruction is in harmony with the second instruction given for the state, and is correct.

The seventh instruction for defendant, as modified by the court, is in these words, viz: “ The court instructs the jury that if they believe from the evidence, beyond a reasonable doubt, that the defendant killed the deceased without any legal excuse or justification, still if the jury further believe from the evidence that the strap used by the defendant in chastising the deceased was not a deadly weapon, and that the chastisement was not evidently dangerous and likely to kill or produce great bodily harm, then the jury should find the defendant guilty of only manslaughter.” This instruction fairly presents the law of manslaughter, as applicable to the facts of the case, and was quite as favorable to the accused as the court was warranted in making it. The other modified instructions of the defendant substantially repeat the rule announced in the seventh instruction just referred to, and meet our approval.

It remains only to notice the exception to the action of the court in refusing to give the defendant’s tenth instruction, by which it was sought to charge the jury “that if a motive on the part of the defendant to commit the crime has not been shown, then the jury ought to consider that as a circumstance favorable to the accused.” On the uncontroverted facts of the case, any inquiry as to motive would have been vain and aimless. In certain cases, as, for example, where circumstances point to the accused as the person likely to have committed the offense, the examination of the question of motive would be necessary and proper. But, here, it was undenied that, with pitiless savagery, the father beat to death, without cause, his own helpless child, and that he concluded his shocking barbarity by crying into the ears of his expiring victim: “ Die, God damn you.” Surely any search after motive, under these appalling circumstances, would have been judicial child’s play.

'Affirmed.