Opinion
No. 38548.
December 8, 1952.
1. Criminal procedure — exhibiting deadly weapon in threatening manner — objections to testimony, waived.
In a prosecution for exhibiting a deadly weapon in a threatening manner in the presence of three or more persons, the admission of testimony about a fight at the house of the accused which preceded by a short time the charged offense, was not a matter about which the accused could complain when he on his part brought out the same fact.
2. Criminal procedure — evidence — connected chain of events.
Where shortly after the fight mentioned in the foregoing headnote, the accused took his shotgun to a neighbor's house and there threatened and cursed the party with whom he had had the fight, and then drove away but within five or ten minutes he returned to the neighbor's house and in the presence of four persons then there, he again exhibited his shotgun, pointed it toward the house and cursed his antagonist in the fight who was then in the house, all these events constituted a closely connected chain of events both in sequence and in time and were of relevant and appreciable probative value as serving to throw light upon the conduct of the accused on the last occasion when three or more persons were present.
3. Criminal procedure — misdemeanor against municipality — municipal ordinance not necessary.
Inasmuch as the statute makes all misdemeanors which are violations of state laws criminal offenses against the city within which the offense was committed, no special municipal ordinance is necessary. Sec. 78, Chap. 491, Laws 1950.
4. Instructions — reasonable doubt — defining.
An instruction which undertakes to define reasonable doubt should not be given, but is not reversible when taken together with other instructions it is not prejudicial or misleading.
5. Trial — correcting previous erroneous oral ruling on objections to testimony.
Where an erroneous ruling has been made in response to an erroneous objection, the trial court in attempting to correct the ruling should do so by a written instruction on the law rather than by oral comments, but when the corrected ruling still places upon the State a heavier burden than the law requires, the verdict of guilty is not to be set aside on the complaint of the accused. Sec. 1530, Code 1942.
6. Trial — criminal law — exhibiting deadly weapon.
In a prosecution for exhibiting a deadly weapon in a threatening manner it is not necessary to prove that the exhibition and threat were directed to any particular person but only that it was done in the presence of three or more persons.
7. Criminal procedure — guilt clearly established by evidence — Rule 11, Supreme Court.
When the testimony has clearly established the guilt of the accused, the judgment of conviction will not be reversed for mere procedural errors in the trial unless it affirmatively appears from the whole record that there has been a miscarriage of justice. Rule 11, Supreme Court.
Headnotes as approved by Ethridge, J.
APPEAL from the circuit court of Copiah County; T.P. BRADY, Judge.
W.M. Broome, for appellant.
I. The lower court erred in making an oral charge to the jury as shown by the record at the end of the City's testimony and after the City rested. Secs. 1530, 2013, 2086, Code 1942; Watkins v. State, 60 Miss. 323; Bangs v. State, 61 Miss. 363; Masonite Corp. v. Lockridge, 163 Miss. 382, 141 So. 758; Edwards v. State, 47 Miss. 581; Westbrook v. State, 163 So. 838; Simmons v. State, 107 Miss. 464, 65 So. 511; Gilbert v. State, 78 Miss. 350, 29 So. 477; Stewart v. State, 50 Miss. 587; Williams v. State, 32 Miss. 389, 66 Am. Dec. 615; Green v. State, 53 So. 415; Collins v. State, 54 So. 665; Fuller v. State, 85 Miss. 199, 37 So. 749; Cole v. State, 150 So. 757.
II. The lower court erred in admitting evidence for the city of Crystal Springs as is shown by the record and which evidence was objected to by the appellant, and which related to other district criminal offenses which did not happen at the time and place of the charged offense. Whitlock v. State, 66 Miss. 448, 6 So. 237; Collier v. State, 106 Miss. 613, 64 So. 373; Raines v. State, 81 Miss. 489, 33 So. 19; Dabney v. State, 82 Miss. 252, 33 So. 973; Hurd v. State, 137 Miss. 178, 102 So. 293; Willoughby v. State, 154 Miss. 653, 122 So. 757; Floyd v. State, 166 Miss. 15, 148 So. 226; McCormick v. State, 159 Miss. 610, 132 So. 757; Kehoe v. State, 194 Miss. 339, 12 So.2d 149; Patton v. State, 209 Miss. 138, 46 So.2d 90; Dossett v. State, 211 Miss. 650, 52 So.2d 490.
III. The lower court erred in granting the instructions given to the city of Crystal Springs as is shown by the record, and which was an attempt to define reasonable doubt, and precluded the jury from considering any doubts which may arise from a lack of evidence. Jones v. State, 130 Miss. 703, 94 So. 851; Jefferies v. State, 77 Miss. 757, 28 So. 948; Taylor v. State, 89 Miss. 671, 42 So. 608; Smith v. State, 103 Miss. 356, 60 So. 330; Simmons v. State, 206 Miss. 535, 40 So.2d 289; Boutwell v. State, 143 So. 479.
IV. The city of Crystal Springs failed to introduce in evidence a certified copy of the ordinance upon which the appellant was tried and convicted and the record in this cause reflects no ordinance whatsoever upon which the appellant could have been tried. Spears v. Town of Osyka, 92 Miss. 790, 46 So. 558; Kyle v. Town of Calhoun City, 123 Miss. 542, 86 So. 340; Simmons v. Town of Louin, 57 So.2d 133; Sec. 78, Chap. 491, Laws 1950.
V. The verdict and judgment of the lower court is contrary to and against the great and overwhelming weight of the evidence in this cause. Sec. 2013, Code 1942.
VI. The lower court erred in overruling the appellant's motion after the City had rested for a directed verdict.
VII. The lower court erred in refusing certain instructions to the appellant as is shown by the record.
John T. Armstrong, for appellee.
I. The court did not commit an error in stating to the jury, while ruling on an objection, that in this case it was not necessary for the State to prove that the gun was pointed at any particular individual, since said statement was made to correct a former ruling by the court where he told the jury it was necessary for the State to prove that the gun was exhibited in a rude, angry and threatening manner on the appellant's brother. 23 C.J.S., Secs. 987, 992, pp. 335, 347; Lee v. State, (Miss.), 59 So.2d 338; Price v. State, 207 Miss. 111, 41 So.2d 37.
II. The lower court committed no error in admitting the evidence showing continuous acts of the appellant which were closely connected in point of time. Carr v. State, 175 Miss. 102, 166 So. 363; Clarke v. State, 181 Miss. 455, 180 So. 602; Massey v. State, (Miss.), 19 So.2d 476; Bangreen v. State, 198 Miss. 359, 22 So.2d 360; May v. State, 205 Miss. 295, 38 So.2d 726; Dixon v. State, 169 Miss. 876, 154 So. 290.
III. The lower court did not commit error in granting the instructions to the city of Crystal Springs. Davis v. State, 170 Miss. 78, 154 So. 304.
IV. It was not necessary for the city of Crystal Springs to introduce in evidence a certified copy of the ordinance making all offenses under the penal laws of Mississippi which are misdemeanors criminal offenses against the City in whose corporate limits the offenses may have been committed. Sec. 3374-78, Code 1942; Simmons v. Town of Louin, (Miss.), 57 So.2d 133.
V. The verdict was not contrary to the overwhelming weight of the evidence. White v. State, (Miss.), 49 So.2d 259; Robinson v. State, (Miss.), 49 So.2d 413; Jones v. State, (Miss.), 58 So.2d 655; Howard v. State, (Miss.), 55 So.2d 436.
Appellant, Frank Sykes, was convicted in the municipal or mayor's court of the City of Crystal Springs, and on appeal by trial de novo in the Circuit Court of Copiah County, of exhibiting a deadly weapon in the presence of three or more persons in a rude, angry and threatening manner not in necessary self-defense, under Code of 1942, Sec. 2086. That statute provides:
"If any such person, having or carrying any dirk, dirk-knife, sword, sword-cane, or any deadly weapon, or other weapon the carrying of which concealed is prohibited, shall, in the presence of three or more persons, exhibit the same in a rude, angry, or threatening manner, not in necessary self-defense, or shall in any manner unlawfully use the same in any fight or quarrel, the person so offending, upon conviction thereof, shall be fined in a sum not exceeding five hundred dollars or be imprisoned in the county jail not exceeding three months, or both. In prosecutions under this section it shall not be necessary for the affidavit or indictment to aver, nor for the state to prove on the trial, that any gun, pistol, or other firearm was charged, loaded, or in condition to be discharged."
We will not detail the facts, but the record amply supports the conviction. Appellant was not entitled to a directed verdict, nor was the conviction against the great weight of the evidence.
Appellant also complains that the trial court erred in admitting into the record certain evidence concerning a fight which appellant had with his brother, Ray Sykes, at appellant's home a short time prior to the acts for which he was convicted. Also, after the fight at appellant's home, and after Ray had left, appellant took his shotgun and drove to the home of Mrs. Farmer. Ray was standing on the yard in front of that place, and the state's testimony was to the effect that appellant pointed his gun at Ray, threatened to kill him, and cursed him. Appellant then got in his car, drove to town, and directed two police officers to follow him back to the house. Appellant returned to the front of Mrs. Farmer's house within five to ten minutes after he was originally there. Appellant then again exhibited his loaded shotgun which was cocked and ready to shoot, pointed it toward the house where two ladies were standing, and cursed Ray who was then in Mrs. Farmer's house, unarmed according to the state's witnesses, in the presence of at least four persons, the two officers, Mrs. Farmer and Mrs. Courtney.
(Hn 1) We do not think that it was error for the trial court to admit into evidence the testimony concerning the fight at appellant's house and the initial appearance of appellant in front of Mrs. Farmer's house. But appellant can not complain of this, even if such evidence were inadmissible. At the beginning of the state's case, City Marshal Ferguson was on the stand, and appellant's attorney stated to the court "we don't object to going into what transpired before this alleged offense if the court will permit us to go into it." Subsequently, this first witness of the state was cross-examined by appellant's attorney concerning the earlier fight, and on other occasions witnesses were cross-examined by appellant concerning the earlier fight and his previous appearance at Mrs. Farmer's house. On direct examination of appellant's witnesses, including appellant himself, these same facts were brought out by appellant's attorney. Hence appellant waived objections, if any, to this evidence. Moreover, (Hn 2) all of these events constituted a closely connected chain of events, both in sequence and in time, which served to throw light on the conduct of appellant at the Farmer house. As such, this evidence was relevant and of appreciable probative value. Carr v. State, 175 Miss. 102, 166 So. 363 (1936); Clarke v. State, 181 Miss. 455, 180 So. 602 (1938); Massey v. State, 19 So.2d 476 (Miss. 1944); Musselwhite v. State, 212 Miss. 516, 54 So.2d 911 (1951).
(Hn 3) It was not necessary for the city to introduce in evidence a certified copy of the city ordinance making all offenses under the penal laws of Mississippi which are misdemeanors, criminal offenses against the city within whose corporate limits the offense was committed. Miss. Laws 1950, Chap. 471, Sec. 78, being Code of 1942, 1950 Supp., Sec. 3374-78, changed that earlier requirement and provided that all offenses "under the penal laws of this state which are misdemeanors are hereby made, without further action of the municipal authorities, criminal offenses against the city . . ." Simmons v. Town of Louin, 213 Miss. 482, 57 So.2d 133 (1952).
(Hn 4) Appellant also complains about the instruction given the city by the circuit court which undertakes to define reasonable doubt. This instruction is in substantially the same terminology of that criticized in Jones v. State, 130 Miss. 703, 94 So. 851 (1922). The court has criticized this instruction in a number of cases, but has declined to reverse because of it, since it was either curbed by other instructions or was not prejudicial. Davis v. State, 170 Miss. 78, 154 So. 304 (1934). It should not have been given, and in a close case might constitute grounds for reversal. But here appellant's guilt is amply established by the evidence. And other instructions granted appellant as well as the state, when taken together, cure any possibly misleading aspect of this instruction. Moreover, its first part is simply a statement of a theoretical proposition, and its last part perhaps serves to cure the rest of it.
Appellant argues that the following circumstances constitute reversible error: J.O. Stubbs was testifying as a witness for the state. He said that he saw appellant go towards Mrs. Farmer's house and pull a gun on "another fellow"; that he didn't know who the other man was. Appellant objected because Stubbs stated that "he didn't know who the other fellow was", and asked the court to instruct the jury to disregard that testimony. The trial court, sustaining the incorrect objection of appellant, erroneously advised the jury that the question was whether appellant had exhibited a gun in the stated manner "on this defendant's brother", and that if he exhibited it on some one else the jury would "disregard what this defendant did toward some one else". Shortly thereafter the city rested its case, and appellant made a motion for a peremptory instruction of not guilty, which was overruled. At that time it apparently was called to the trial judge's attention that, in previously ruling on appellant's objection to Stubbs' testimony, he had erroneously told the jury that the question was whether the gun was exhibited in the stated manner on appellant's brother and not on anyone else. Hence when the jury returned to the court room, the court, undertaking to correct this earlier ruling, advised the jury that it was not necessary for the city to prove that appellant pointed a gun at a particular individual, "at this particular man", apparently referring to appellant's brother; that it was only necessary that the city prove that appellant pointed it "toward any individual", and "at some individual — not at one particular individual".
(Hn 5) The trial court was undertaking to correct an erroneous ruling which it had previously rendered in response to an objection made by appellant's attorney. The correction should have been made, as provided by Code of 1942, Sec. 1530, by a written instruction on the law, rather than by oral comments. However, we do not think that this constitutes reversible error. The original erroneous ruling was made in response to appellant's erroneous objection. Moreover, the corrected ruling still placed a heavier burden upon the state than was necessary, and was more favorable to appellant than that to which he was entitled, (Hn 6) since in this respect the state needed to prove only that the deadly weapon was exhibited "in the presence of three or more persons" and not at appellant's brother or at any other particular individual. Written instructions given to the jury correctly stated the statutory requirements. Moreover, (Hn 7) the state's case clearly established appellant's guilt. We do not think that the jury, in light of all these circumstances, was misled. This brings into play Rule 11 of this Court, which provides: "No judgment shall be reversed on the ground of misdirection to the jury, or the improper admission or exclusion of evidence, or for error as to the matter of pleading or procedure, unless it shall affirmatively appear, from the whole record, that such judgment has resulted in a miscarriage of justice."
Affirmed.
Roberds, P.J., and Hall, Kyle, and Arrington, JJ., concur.