Allen v. State

^* Headnotes 1. Criminal Law, 17 C.J., section 333; 2. Criminal Law, 16 C.J., section 2485; Homicide, 30 C.J., section 627. The appellant, Mat Allen, was convicted in the circuit court of Jasper county on a charge of murder, and sentenced to the penitentiary for life, and from this conviction and sentence this appeal was prosecuted.

The record discloses that the appellant was an unmarried man, living on a farm with his mother, who was helpless and blind, and supposed to be about one hundred years old. Jim Bethea, the deceased, was a mentally defective dwarf, an anemic of the most pronounced type, and physically very weak and emaciated. He was a nephew of the appellant, and, for about ten years prior to his death, he lived in the home of appellant as a member of the family. Another weak-minded nephew of appellant, a cousin of the deceased, also lived in the home of appellant as a member of the family. At the time of the death of Jim Bethea, these two boys were about twenty years old. They had lived in the home of the appellant for many years, doing such farm work as they were capable of performing.

In March, 1924, Jim Bethea died at the home of appellant. Early in the night of the death of this boy, the appellant went to the home of a neighbor and requested him to send a messenger for a doctor, saying that the boy was seriously sick. The doctor was not at home, and did not reach the home of appellant until some time during the next day, and after the death of the boy. He made an examination of the body of the deceased, and testified that he found a number of bruises and scars on the body, some of them being fresh, other partly healed; that the deceased's collar bone was broken or dislocated; that the marks, scars, and bruises on the body of deceased might have been caused by a fall or from blows inflicted; that the body was so emaciated that a slight blow might have produced a condition that would have resulted in death. The doctor further testified that the appellant invited him to make the fullest examination of the body, stating that he was afraid people might think he had killed the deceased.

Neighbors who assisted in preparing the body for burial testified that they noted many severe marks and bruises on the body of the deceased, and also the broken or dislocated collar bone. Two witnesses testified that about two weeks before the boy died they saw the appellant give him a very severe beating with a stick which appeared to be about three feet long and nearly an inch in diameter. Another witness testified that, on the day before the boy died at night, he saw the appellant give him a very severe whipping; that he was using a stick of considerable size, and striking him around the neck and shoulders. There was much other testimony bearing upon the issues involved, the details of which it is unnecessary to here state.

The appellant assigns as error an instruction granted at the request of the state which informed the jury that, in this case, they might return either of the three verdicts authorized upon a conviction of murder, or a verdict of not guilty. While it is true that neither side requested an instruction defining manslaughter or announcing the law applicable thereto, and consequently the appellant cannot complain that no instructions on that issue were given, yet we think it is clear that, upon the proof, a verdict of manslaughter might have been properly returned, but the instruction complained of excludes the right so to do. Under the testimony in this case it was a question for the jury as to whether the appellant was guilty of murder, manslaughter, or nothing, and it was error to grant an instruction upon the verdicts that might be returned in a form that shut up the jury to a verdict of murder or nothing. This point was decided in the case of Johnson v. State, 75 Miss. 635, 23 So. 579, in which it was expressly held that where, under the proof, a manslaughter verdict might properly be returned, it was reversible error to grant an instruction on the form of verdicts which shut the jury up to a verdict of murder or nothing.

The appellant also complains of certain instructions granted the state, which authorized a conviction of murder under certain facts, unless at the time the blows were inflicted the appellant was in some real or apparent danger of losing his life or suffering some great bodily harm at the hands of the deceased. There is not a hint or suggestion in the entire record that the appellant was ever in any danger at the hands of the deceased, and the theory of self-defense was in no way involved, and consequently we do not think it should have been incorporated in these instructions. We do not hold that these instructions alone would constitute reversible error in this case, but the instructions should be limited to the issues in the case as developed by the testimony.

For the error indicated, the judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.