Thomas v. State

426 So. 2d 795 (1983)

Walter THOMAS v. STATE of Mississippi.

No. 54017.

Supreme Court of Mississippi.

February 16, 1983.

Jerry L. Mills, William J. Johnson, Clinton, for appellant.

Bill Allain, Atty. Gen. by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before WALKER, P.J., and DAN M. LEE and ROBERTSON, JJ.

WALKER, Presiding Justice, for the Court:

The appellant, Walter Thomas, was indicted for murder but convicted of manslaughter and sentenced to twenty years in the custody of the Mississippi Department of Corrections by the Circuit Court of the Second Judicial District of Hinds County, Mississippi.

The appellant's conviction was based primarily on statements given to the authorities.

At trial, the appellant denied he read the statements and denied their truth. He admitted signing them but contended that he had done so out of fear and the belief he would be released from jail.

At the conclusion of the case, the appellant requested the following instruction, which was denied by the court:

The Court instructs the Jury that if you believe from the evidence that the alleged confession of the Defendant was untrue you should disregard it or, if you believe from the evidence that it was made under the influence [of] hope or fear, you may take this into account in determining what weight or credit, if any, you may attach to it as evidence.

There was no general instruction given by the court explaining to the jury that they were the sole judge of the weight and credibility of the witnesses, and that they could give testimony and evidence such weight as they deemed it justified.

We are, therefore, of the opinion that failure to grant the requested instruction was error and under the facts of this case are unable to say that it was harmless error.[1]

During the trial it was brought out that a polygraph examination had been given to *796 the defendant. This should not reoccur upon retrial.

For the above reasons, the judgment and conviction are reversed and this cause is remanded to the lower court for a new trial.

REVERSED AND REMANDED FOR A NEW TRIAL.

PATTERSON, C.J., BROOM, P.J., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.

NOTES

[1] See Ellis v. State, 65 Miss. 44, 3 So. 188 (1887).