Opinion
No. 31570.
February 18, 1935.
1. HOMICIDE.
In case of murder, malice may be either expressed or implied.
2. HOMICIDE.
Proof of motive is not indispensable to conviction for murder (Code 1930, section 985).
3. HOMICIDE.
Malice may be suddenly formed, and no particular period of deliberation is required to make killing deliberate or malicious.
4. BAIL.
Accused charged with murder held not entitled to bail where facts disclosed that accused leveled gun and shot and mortally wounded father with whom he had been conversing while father's hands were held up, and no justification or explanation of killing was made (Code 1930, section 985; Const. 1890, section 29).
APPEAL from circuit court of Newton county.
HON. D.M. ANDERSON, Judge.
Habeas corpus proceeding by Howell Motley against John T. Smith, sheriff. From a judgment denying bail, petitioner appeals. Affirmed.
W.M. Everett, of Decatur, for appellant.
There was no effort whatever to show a motive for the killing or alleged murder on the part of the state. Nothing was shown by the state to show that malice existed at any time prior to the time of the killing, or even attempted to be shown.
Primarily the prisoner cannot demand bail as a matter of right, where the offense is a capital one, since upon ascertaining the character of the charge against the accused, the next question would be and is as to the degree of proof, and the nature of the presumption of guilt. The power, therefore, to admit to bail becomes a matter of judicial discretion in this class of cases. This discretionary power should, however, be exercised with great caution.
Ex parte Fortenberry, 53 Miss. 428; Street v. State, 43 Miss. 1; Beal v. State, 39 Miss. 715; Moore v. State, 36 Miss. 137; Ex parte Wray, 30 Miss. 873; Ex parte Floyd, 60 Miss. 913; Ex parte Bridewell, 57 Miss. 39; Guest v. State, 52 So. 311.
One may intentionally kill another in a struggle in a heat of passion, and the killing be unlawful, and may yet be only manslaughter.
Jackson v. State, 79 Miss. 42, 30 So. 39.
A purpose to kill is not equivalent of the malice aforethought necessary to constitute murder.
79 Miss. 723, 31 So. 420; Long v. State, 52 Miss. 23.
Refusal of bail to one remanded to jail by a justice of the peace on a charge of murder held erroneous, where proof was neither evident nor presumption great that he was guilty of murder.
Parker v. Tullos, 117 So. 531; Elvin Logan v. State, 53 Miss. 430; Ex parte Morman, 112 Miss. 15, 72 So. 835; Ex parte Wray, 30 Miss. 673; 19 So. 712, 73 Miss. 873; Guy v. Jack, 22 So. 188; 140 Miss. 889, 105 So. 742; 146 Miss. 510, 112 So. 673; 147 Miss. 570, 113 So. 186; Moore v. State, 36 Miss. 137.
Wm. H. Maynard, Assistant Attorney-General, for appellee.
The judgment of a habeas corpus court will not be disturbed, unless it is manifest that the trial court either tried the cause upon an erroneous conception of the law, or that the judgment is erroneous upon the facts.
Parker v. Tullos, 150 Miss. 685, 116 So. 532; Stokes v. Terrell, Sheriff, 154 Miss. 230, 122 So. 470.
In habeas corpus proceedings the judge is trier of the facts and passes upon the weight and worth of the testimony, and if the evidence is sufficient to sustain his judgment, the Supreme Court must affirm the case.
Cofer v. Henderson, Sheriff, 160 Miss. 53, 131 So. 421; Lee v. Hudson, Sheriff, 165 Miss. 756, 144 So. 240.
It has been held that in a prosecution for murder it is not indispensable that motive be shown in order to sustain a conviction.
House v. State, 94 Miss. 107, 48 So. 3; Johnson v. State, 140 Miss. 889, 105 So. 742; Buckler v. State, 157 So. 353.
The deliberate design to effect the death of another may be formed in an instant.
Williams v. State, 163 Miss. 475, 142 So. 471; Carter v. State, 147 Miss. 171, 113 So. 177.
In addition, malice is presumed from the unexplained, deliberate use of a deadly weapon.
Riley v. State, 109 Miss. 286, 68 So. 250; Bennett v. State, 120 So. 837, 152 Miss. 728; Holmes v. State, 151 Miss. 702, 118 So. 431.
On a petition in habeas corpus, issuing being made up and trial had, the circuit judge in the court below denied the appellant, Howell Motley, bail. The appellant was held on a charge of murder in the killing of his father, Lee Motley, and an appeal here is prosecuted from the judgment of the court below denying bail.
The substantial facts are: That on or about the 26th day of April, 1934, two eyewitnesses to the killing were in the employ of the appellant's father, Lee Motley, who instructed them to do certain chores and await, at his house, his return from a visit to the home of his son, saying, as he left them, that he had "some business there." The witnesses estimated the distance intervening between where they stood and the son's house, the place where the killing occurred, as about two hundred twenty-five yards. There is some conflict as to the distance, but none as to their ability to see from the one place to the other. As the appellant's father proceeded to the house of his son, the appellant, the latter was plowing in his field, and one of the witnesses heard the father of appellant say, "Hey" to the appellant, who replied in turn, "Here is my house out here." The father then proceeded to the front porch of his son's home, the son left his plow and came up to the house where his father was standing with his foot upon the step of the porch, and there they talked for fifteen or twenty minutes. After the conversation, the son went into the house and came out, and they continued talking for a short time, whereupon the father started in the direction of his home, taking five or six steps, and the appellant went back into the house and came out with a shotgun, leveled it at his father, and shot him while his hands were held up, mortally wounding him. Within a few hours afterwards, he died.
On the hearing below, there was no evidence offered in behalf of the relator, the appellant, tending to explain, justify, or excuse the killing. The record does not disclose that there were any other witnesses to the homicide except those introduced in behalf of the state. As this record stands, no one knows the nature of the conversation had between the father and the son. Appellant did not testify.
The sheriff's answer to the writ of habeas corpus discloses that the relator was held on an indictment for murder in the killing of his father, Lee Motley.
It is apparently insisted by the relator, on his appeal here, that he was entitled to bail because the state had not shown malice in, or motive for, the killing. Section 29 of the Constitution of 1890 provides that: "Excessive bail shall not be required; and all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses when the proof is evident or presumption great."
Appellant seems to argue that because of the lack of proof of motive for, or malice in, the killing, the proof is not evident or the presumption great that he is guilty of murder. In the case of Cofer v. Henderson, Sheriff, 160 Miss. 53, 131 So. 421, this court said: "In habeas corpus proceeding the trial judge is the trier of the facts and passes upon the weight and worth of the testimony, and if the evidence is sufficient to sustain his judgment the Supreme Court must affirm the case." To the same effect are the cases of Parker v. Tullos, 150 Miss. 680, 116 So. 531; Stokes v. Terrell, 154 Miss. 230, 122 So. 470; Lee v. Hudson, 165 Miss. 756, 144 So. 240.
As applicable to the facts of the case, sec. 985, Code 1930, states: "The killing of a human being, without the authority of law, by any means or in any manner, shall be murder in the following cases: (a) When done with deliberate design to effect the death of the person killed, or of any human being." In case of murder, malice may be either expressed or implied. In Carter v. State, 147 Miss. 171, 113 So. 177, this court said that malice is implied from any intentional killing which the law does not make justifiable or excusable, and cited Hawthorne v. State, 58 Miss. 778, wherein this court said: "It is too late, by many years, to dispute here the propositions, that the law implies malice from the unlawful use of a deadly weapon, and that every homicide by the use of such weapon is presumed to be murder, and that `malice aforethought' is the same as `deliberate design' or `premeditated design.'"
The facts of the case at bar disclose that after the conversation was finished and the appellant's father had started away, the son went into his house to procure a gun, did so, and shot him while he was holding both of his hands up; so that we have here an unexplained deliberate use of a deadly weapon without any justification or excuse whatever.
As to the motive in a case like the one at bar, the proof thereof is not indispensable. See Buckler v. State (Miss.), 157 So. 353; Johnson v. State, 140 Miss. 889, 105 So. 742; House v. State, 94 Miss. 107, 48 So. 3, 21 L.R.A. (N.S.) 840. But it has often been stated in the law that malice may be suddenly formed and that it requires no particular period of time to make a killing deliberate or malicious within the law. See Williams v. State, 163 Miss. 475, 142 So. 471. As the case is here presented, without explanation or justification of the killing, the proof is evident and the presumption is great.
Affirmed.