* Corpus Juris-Cyc. References: Homicide, 30CJ, p. 447, n. 59, 60; p. 448, n. 70, 72; Witnesses, 40Cyc, p. 2584, n. 29 New. On an indictment for murder of William Neal the appellant was convicted of manslaughter, and sentenced to a term of twelve years in the penitentiary. He prosecutes this appeal, and assigns as error the following:
First, the refusal of the court to exclude the testimony of Money Braxton as to the facts and circumstances of the killing, for the reason assigned that the statement was first obtained from Money Braxton by virtue of fear, and was not free and voluntary; and
Second, that, if the defendant was guilty at all, he was guilty of murder, and that a manslaughter instruction on behalf of the state should not have been granted; and
Third, that the verdict of the jury was contrary to the law and the evidence.
As to the first point, that the testimony of Money Braxton was not free and voluntary, and therefore he should not have been permitted to testify against his partner in crime, it does not seem to be sustained by the record in this cause. There is nothing in the record disclosing that either the judge or any part of the court exerted any undue influence of any kind on Money Braxton, who was a witness, and he exhibited no reluctance to deliver his testimony in this case. The statement appears to have been free and voluntary and not under duress, and whatever may have occurred prior to the time he was introduced as a witness would not disqualify him as a witness *Page 678 against his partner in crime, but would only go to his credibility as a witness, and this case is ruled by the case ofJim Goss v. State, 144 Miss. 420, 110 So. 208, wherein Judge ANDERSON, as the organ of the court, said:
"Appellant argues that the testimony of this witness is in the same attitude under the law as if it had been extorted from him by duress while he was on the witness stand. We do not think the contention well founded. If duress was used to obtain the testimony of the witness, the fact of duress only went to his credibility like any other fact or circumstance which might have influenced his testimony. It did not render him incompetent as a witness. It only went to the credibility and weight of his evidence."
This precise question has been settled in the case ofStallings v. State (Miss.), 107 So. 890.
It is next assigned that the court erred in giving a manslaughter instruction, because there was no element of manslaughter developed by the proof in this cause; that the issue was whether the defendant was guilty of murder, or was not guilty, on his defense of an alibi.
It is now quite well settled that the defendant cannot complain of the giving of a manslaughter instruction on a trial for murder, even though the evidence would have sustained a verdict of guilty of murder, and would not have sustained a verdict of guilty of manslaughter. Calicoat v. State, 131 Miss. 169, 95 So. 318; Strickland v. State, 131 Miss. 169, 95 So. 318;Stevenson v. State, 136 Miss. 22, 100 So. 525; White v.State, 142 Miss. 484, 107 So. 755; Huston v. State,105 Miss. 414, 62 So. 421.
As to the next assignment of error, that the verdict was contrary to the law and the evidence, we have already determined that no error of law is found in this record. We have carefully read the testimony, and the issue was squarely presented to the jury as to whether or not appellant had participated in a most brutal, horrible murder of a defenseless old negro, and a cunning concealment of the crime thereafter, or the theory advanced *Page 679 by appellant that he was not there, but was elsewhere. We think there was sufficient testimony to warrant the jury in believing that the appellant participated in this crime, and we can find no good reason for disturbing the verdict of the jury in this case.
Affirmed.