Johnson v. State , 124 Miss. 429 ( 1920 )

W. H. Cook, J.,

delivered the opinion of the court.

The appellant, Matry Johnson, was indicted for the murder of his brother, June Johnson, and was convicted of manslaughter, and from the judgment sentencing him to the penitentiary for two years, this appeal was prosecuted.

The evidence in this record shoivs that several negroes, including the appellant and the deceased, June Johnson, were engaged in a crap game in an abandoned cabin. An altercation arose between one Marion Horton and the deceased, and the appellant, who at that time was standing before the fire, intervened in the argument in behalf of his brother, and angry words passed between appellant and Horton. The evidence is conflicting as to what, if any, demonstration was made towards appellant by Horton, but it appears that appellant started to draw his pistol from his pocket. From some cause he dropped the pistol behind him., and when it struck the floor it fired, and the bullet passed through appellant’s leg and struck and killed his brother. Exactly what caused the pistol to be dropped does not appear, but appellant testified that Horton started to advance upon him, and that he thereupon pulled his gun, and that Wallace, a bystander, caught his arm, and the pistol was knocked out of his hand. Wallace denied that he caught appellant’s arm, and testified that he only put his hand on appellant’s breast and told him not to do that. All the witnesses agree that the gun was not pointed at Horton, and it very clearly appears that it was dropped as appellant drew it from his pocket.

No instructions were granted tlie state submitting the question of murder to the jury, but the court granted numerous instructions containing various statutory definitions of manslaughter. Instructions Nos. 1 and 4 correctly announced the law of manslaughter as applied to the facts in this case, and in addition thereto the court granted two instructions defining manslaughter, which were as follows:

“No. 2. The court charges the jury for the state that manslaughter is the killing of a human being without malice in the heat of passion in a cruel and unusual manner, not in necessary self-defense with a dangerous weapon.”

“No. 3. The court charges you for the state that every person who shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony or to do any unlawful act, or after such attempt shall have failed, shall be guilty of manslaughter; and if you believe from the evidence in this case beyond a reasonable doubt that the defendant so killed the deceased, you should convict the defendant of manslaughter.”

The principles of law announced in these instructions have no application to the facts in this case. These various definitions of manslaughter were calculated ■ to confuse the minds of the jury, and, since this is a close case on the facts, Ave cannot say that the error in granting them Avas harmless.

The court also granted the state an instruction in the folloAA’ing language:

“The court charges the jury for the state that, if they believe from the evidence in the case beyond a reasonable doubt that the defendant was negligent in the handling of his pistol AAdiile attempting to unlaAvfully and feloniously shoot, wound, injure, or kill Marion Horton, he, the defendant, without malice or deliberate design killed his brother June, then in that event you should find the defendant guilty of manslaughter,”

This instruction authorizes a conviction if the defendant was guilty of simple negligence in handling his pistol, while the negligence denounced by the statute upon which this prosecution must be based is culpable negligence. There is a marked difference between mere negligence and culpable negligence, and, since the statute does not predicate criminality upon simple negligence, this instruction was erroneous. The language of the instruction is also confusing and misleading.

For the errors herein indicated, this cause is reversed and remanded.

Reversed and remanded.