BEFORE WALKER, PRATHER AND SULLIVAN
SULLIVAN, JUSTICE, FOR THE COURT:
Christine Johnson was convicted by the Circuit Court of Coahoma County, Mississippi, for the murder of her three-and-a-half month old son, Ceddrick, and sentenced to life in the custody of the Mississippi Department of Corrections.
On the night of January 22, 1982, police officers were summoned to the apartment of Christine Johnson. There they found the body of Christine's 3 1/2 month old son, Ceddrick. The baby was badly bruised and cut.
Johnson was interrogated twice at her apartment that night and after the second interrogation was arrested. At the trial, her defenses consisted of denial, accident and insanity. Johnson appealed the conviction and assigned the following errors:
WAS THE INDICTMENT FATALLY DEFECTIVE FOR FAILING TO ALLEGE MALICE AFORETHOUGHT?
The indictment under which Christine Johnson was tried reads, in pertinent part, as follows:
2. Did unlawfully, wilfully, feloniously and without authority of law kill and murder Ceddrick Johnson, a human being, while the said Christine Johnson was engaged in acts emminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual, in violation of MCA 97-3-19 (1) (b).
Mississippi Code Annotated 99-7-37 (1972), provides as follows:
In an indictment for homicide it shall not be necessary to set forth the manner in which or the means by which the death of the deceased was caused, but it shall be sufficient to charge in an indictment
for murder, that the defendant did feloniously, wilfully, and of his malice aforethought, kill and murder the deceased. . . . (Emphasis added).
Johnson contends that 99-7-37 mandates the use of the language" malice aforethought ", and that it was error to overrule her demurrer to the indictment for its failure to use that language. She is wrong.
Rule 2.05, Miss. Uniform Criminal Rules of Cir. Court Practice sets out what form the indictment shall be in. It provides as follows:" The indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation against him. Formal or technical words are not necessary in an indictment, if the offense can be substantially described without them. "(Emphasis added).
This indictment followed the language of the" depraved heart "murder statute as set out in Mississippi Code Annotated 97-3-19 (1)(b) (Supp. 1984). Whether an indictment in the language of the statute is sufficient, or whether other words or acts are necessary to properly charge the commission of a crime is dependent upon the nature of the offense and the terms in which it is described by the statute. If the statute fully and clearly defines the offense, the language of the statute is sufficient. Jackson v. State, 420 So. 2d 1045, 1046 (Miss. 1982), (following numerous cases cited therein).
It is our duty to harmonize our statutes if they appear to conflict, and because we find no conflict between these two statutes that harmony comes readily. 97-3-19 (1)(b) is sufficient in language to properly charge one with" depraved heart "murder. 99-7-37 does not mandate" malice aforethought "in every murder indictment, but merely proclaims that an indictment in that form will be sufficient.
Accordingly, in keeping with our statutes, case law and criminal procedure rules, we find that it was not error to overrule the demurrer to this indictment. The case of Buchanan v. State, 97 Miss. 839, 53 So. 399 (1910), which held that a murder indictment which leaves out the word malice is" fatally defective ", is therefore overruled.
WAS IT ERROR TO REFUSE JOHNSON'S INSTRUCTION D-1 ON MALICE AFORETHOUGHT AND OVER OBJECTION GRANT STATE'S INSTRUCTION S-1 WHICH DID NOT REQUIRE A MALICE AFORETHOUGHT FINDING BY THE JURY?
It has long been the case law of this state that malice aforethought, premeditated design, and deliberate design all mean the same thing. See Dye v. State, 127 Miss. 492, 90 So. 180 (1921); Hawthorne v. State, 58 Miss. 778 (1881); McDaniel v. State, 8 Smed. and M. 401 (1847). Furthermore, in Talbert v. State, 172 Miss. 243, 159 So. 549, 551 (1935), the Court had under consideration two jury instructions, one of them being in the precise language of the" depraved heart "murder statute. The Court, referring to the forerunner of 97-3-19 (1) (a) and (b) (sec. 985 subds. (a) and (b) of the Code of 1930), said the following:
This statute but epitomizes the common law found . . . . Murder is the voluntary killing of any person of malice prepense or aforethought, either express or implied by law; the sense of which word malice is not only confined to a particular ill-will to the deceased, but is intended to denote . . . an action flowing from a wicked and corrupt motive, a thing done malo ammo, where the fact has been attended with such circumstances as carry in them the plain indications of a heart regardless of social duty and fatally bent upon mischief. (Emphasis added), (citations omitted).
The" depraved heart "murder statute provides as follows:
(1) 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:
(b) When done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual;
State's Instruction S-1 reads as follows:
The defendant, Christine Johnson, has been charged by an indictment with the crime of Murder, for having caused the death of Ceddrick Johnson while acting in a manner eminently dangerous to others and evincing a depraved heart, regardless of human life.
If you find from the evidence in this case beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis consistent with innocence that:
1. The deceased, Ceddrick Johnson, was a living human being; and
2. Ceddrick Johnson was killed by the defendant Christine Johnson, without authority of law; and
3. The defendant, Christine Johnson, was engaged in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, when the mortal or killing blow was struck, whether or not she had any intention of actually killing Ceddrick Johnson; then you shall find the defendant guilty of Murder.
If the State has failed to prove any one or more of these elements beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis consistent with innocence, then you shall find the defendant not guilty.
The statute itself, therefore, expressly dispenses with the requirement of premeditated design, or malice aforethought. Further, if malice aforethought be required, it would be most difficult to conclude that it is not synonymous with" depraved heart ". This Court has held that" synonymous phrases or interchangeable words may be used in a jury instruction and the jury still be properly instructed. "Lancaster v. State, No. 54, 597, slip op. at 8, decided May 29, 1985, (not yet reported), (citing Erving
v. State, 427 So. 2d 701 (Miss. 1983).
More importantly, Instruction S-1 followed the language of the statute; therefore, it was proper. This assignment is without merit; nor is the argument that," feloniously "and" willfully "should have been contained in Instruction S-1 persuasive. The statute simply does not contain these words; moreover," without authority of the law "and" engaged in the commission of an act ", both used in the instruction, are respectively synonymous with" feloniously "and" willfully ". See Lancaster, supra
DID THE LOWER COURT ERR DURING VOIR DIRE IN REFUSING TO ALLOW JOHNSON TO QUESTION JURORS ABOUT THEIR PERSONAL FEELINGS ON ALCOHOL USE AND IF THE JURORS COULD RETURN A NOT GUILTY VERDICT IF THERE REMAINED A REASONABLE POSSIBILITY THAT THE DEFENDANT WAS INNOCENT?
During voir dire, Johnson's lawyer asked for a show of hands from anyone with conscientious scruples against the use of alcohol. No hands were raised. He then asked if any of the jurors had used alcohol within thirty days, and several hands were then raised. The lawyer then asked for a showing of hands from those jurors who had not used alcohol within thirty days. At this juncture, the trial judge stated," that would be those who did not raise their hands the last time. "
The lawyer then asked if the jurors would be prejudiced against Johnson just because she had partaken of alcohol. Several jurors shook their head indicating a negative response. The trial judge thereupon directed Johnson's lawyer to have the panel raise their hands or stand up, rather than respond with head nods. Voir dire proceeded but there were no further questions concerning the use of alcohol.
Later in the voir dire, Johnson's lawyer attempted to ask if the jurors understood it was their duty to return a not guilty verdict so long as there remained a" reasonable possibility that the defendant is innocent. "The trial judge interrupted and said that the court" will instruct the jury as to what the burden is, . . . you are misusing the words and the terms. "
Johnson makes no meaningful argument in support of
this assignment and as a general rule unsupported assignments of error are not considered by this Court. Harris v. State, 386 So. 2d 393, 396 (Miss. 1980).
Since the issue raised here is controlled by our decision in Jones v. State, 381 So. 2d 983 (Miss. 1980), cert. den. 101 S. Ct. 543, 449 U.S. 103, 66 L.Ed.2d 300, we will discuss it. In Jones, supra, we held that the trial court has broad discretion in passing upon the extent and propriety of questions addressed to prospective jurors and error will be found only where clear prejudice to the accused results. Id. at 990.
Johnson was not restrained in asking jurors their attitudes about alcohol. In the first instance, the lawyer simply asked an inartful question, the obvious answer to which was pointed out by the trial judge. In the second instance, the trial judge directed that responses be by standing or the raising of hands. Preserving fair and reasonable trial procedure is the duty of the trial judge. He did his duty. We concede that from the pages of the record we are unable to determine the demeanor of the judge, merely his words. These words were not abusive of Johnson or her lawyer. There is nothing to indicate that Johnson was prejudiced before the prospective jurors by any judicial misconduct during this phase of the trial. No error occurred.
DID THE LOWER COURT ERR BY FREQUENTLY INTERRUPTING DEFENSE COUNSEL?
Under this assignment, Johnson does no more than make several statements describing how a judge should conduct himself and a trial, and follows those general statements with a string of case citations supporting the statements. With this catalogue of general judicial conduct, we wholeheartedly agree. However, no instances of such misconduct by the trial judge in this case was brought to our attention by Johnson's brief. Relying upon Harris, supra, we are entitled to disregard this assignment, as the state urges us to do. See also, Dozier v. State, 247 Miss. 850, 157 So. 2d 798 (1963). Because, however, such assignments strike at the very foundation of our judicial ...