Evans v. State

1. Homicide — Self-defense—1Threats.—1Throats however, deliberately made, do not justify an assault and battery, much less the taking the life of the party making them. 2. Same — “ Apparent dancer ” defined. — When we use the term “ apparent danger,” we moan such overt actual demonstration, by conduct and acts, of a design to take life, or do some groat personal injury, as would make the killing apparently necessary to solf-preservation. 3. Evidence — Respecting selections of competent evidence — Rode in appellate court. — If excluded testimony, had it remained ’ for the consideration of the jury, would have had no influence on the verdict, the supreme court will not remand a caso, on account of its rejection. 4. Instructions — Office of judge. — It is the duty of the judge to inform the jury of the law of the case, when invited so to do by either party. He is not confined to granting or refusing instructions in the language in which they are propounded. Nor is ho obliged to grant an instruction embodying a correct principle, if that principle can have no application to tile facts in the case. 5. Instructions to be construed together. — All the charges are to be construed together, as of pari materia, one as modifying another, so as to seo whether, as an entriety, they correctly lay down tholaw, and if so, although a single instruction may be too broad in its terms, a reversal ought not to take place. 6. Instructions — Immaterial error. — “ If the error be immaterial and irrelevant, and justico has been done, the court will not set aside the verdict, nor enter into, a discussion of the questions of law.” Wharton’s Am. Or. L., § 3080. 7. Homicide — Sele-deeense—Apparent danger. — “ A party may have a lively apprehension that his lifo is in danger, and believe that the ground of his apprehension is just androasonable ; but if he act upon them, and take the life of a human being, he does so at his peril. Ho is not the final judge whatever his apprehension or belief may have been of the reasonableness of the grounds on which he acted.” 37 Miss., 349. 8. Same — Same—Same.—In every case, where the homicide is sought to be justified on this ground, it must appear from the testimony in the cause, that the danger was not urgent, present and imminent, and that no reasonable mode of warding it off, or escaping from it existed, except to take life.

Error to the circuit court of DeSoto county. EisheR, J. The testimony sufficiently appears in the opinion of the court. The following- charges were given for the state: 1st. To make a homicide justifiable, on the ground of self-defense, the danger must be either actual, present and urgent, or the slayer must have reasonable grounds to apprehend a design on the part of the deceased to commit a felon}*-, or to do him some great bodily harm, and that there was imminent danger of such design being accomplished, and hence the mere fear of apprehension or belief, however sincerely substantiated by one person that another designs to-take his life, will not justify the former in taking the life of the latter. 2d. Every billing with a deadly weapon is presumed to he malicious, and amounts to murder, until the contrary appears from circumstances of alleviation, excuse or justification; and it is incumbent on the accused to make-out such circumstance of excuse, alleviation or justification, to the Satisfaction of the jury, unless they should arise out of the evidence in the case produced against, or arise out of the whole evidence in the case. 3d. If the jury believe from the evidence that the defendant armed himself with a deadly weapon, for the purpose of seeking a difficulty with the deceased, and intending only to use the same provided it became necessary during the difficulty, in order to save his own life, and that being so armed, with such intention, he sought and brought on a difficulty with the deceased, and killed him with said weapon, then said killing is murder, though at the moment it took place defendant was in actual apparent danger of losing his own life. 4th. Was a charge respecting the duello: If the jury believe that the defendant challenged the deceased to fight him with deadly weapons, and that deceased accepted the challenge, and that defendant killed deceased while he was getting ready to fight in pursuance of said challenge, or that he killed him before deceased could arm himself so as to be on equal terms with defendant, or that he killed deceased in a fight thus accepted, in either case this is murder, and they will find defendant guilty accordingly. 5th. Was a general charge respecting the reasonable doubt: If the jury have a reasonable doubt of the guilt of the prisoner, they will give him the benefit of that doubt, but such reasonable doubt must amount in the mind of the jury to something more than mere possibility or conjecture that the prisoner may be innocent of the charge, but a reasonable doubt of his guilt arising out of the whole evidence in the case. 6th. Was a charge respecting confessions: In confessions by a prisoner, all must be taken together, as well that which .is in his favor as that which is against him, but the jurors are the sole judges of the truth of confessions, and can receive a part and reject a part. The prisoner asked the following charges, to-wit: 1st. If the jury believe from the evidence, that the prisoner shot and killed Wright, at a time when he had reasonable grounds to apprehend a design on the part of Wright to take his life, or to do him some great personal injury, and that there was immediate danger of such design being accom. plished, the homicide was justifiable, and they will so find. 2d. Although the jury may believe the prisoner was mistaken in believing there was reasonable ground, to apprehend a design on the part of the deceased to take his life or to do him some great personal injury, and that there was imminent danger of such design being accomjfiished; yet, if the jury are satisfied from the evidence that the prisoner believed himself to be in such danger, at the time he shot and killed the deceased, the killing was justifiable, and they will so find. 3d. The necessity to take life that will be justifiable need not be actual; it is sufficient if the circumstances surrounding the parties at the time be such as to impress the mind of the slayer with a reasonable belief that the necessity is impending. If, therefore, the jury believe from the evidence in this case, that the circumstances surrounding the prisoner at the time of the killing were such as to create a reasonable impression and belief on his mind that the deceased' was about to take his life, or that he would, if let alone, immediately attempt to take his life, he was justifiable in shooting the deceased, and they will so find. Which three instructions the court refused to give, and in lieu thereof gave the following: If the jury are satisfied from the whole evidence that the accused deliberately shot and killed the deceased, at a time when the accused was in no actual danger of great bodily harm or of his life, then the accused is guilty of murder. But, if the jury are satisfied from the evidence, that the deceased intended to kill the accused, and that it was the purpose of the deceased to enter his house, arm himself with his gun, and to return to the yard, and to make the attack upon the deceased with the purpose aforesaid, then the accused might act in advance and make the attack upon the deceased. It devolves upon the accused, however, to show to the jury by clear and satisfactory proof, that there was an actual necessity for killing the decease! before he entered his house. • 4th. A party may anticipate the attack of his antagonist and justifiably slay him, if under all the circumstances of the case such course be necessary to protect himself; while it is necessary that this design should apparently be imminent, yet it is not essential that it should be immediate and impending, at the very moment of the killing. To which the court added the following modification : But where a party strikes where there is no impending danger, he is bound to show that the deceased intended if let alone to arm himself and make deadly assault upon him. 5th. Unless the jury believe from the evidence that the prisoner, killed Henry Wright from a premeditated design, formed beforehand, to effect his death, they cannot find him guilty of murder. Tó which the court added this modification: But such deliberate design may he formed in a moment of time, and may be presumed, from the weapon used, and the time at which it was used. 6th. If the jury believe from the evidence that Evans killed Wright on a sudden quarrel, without a premeditated and formed design so to do, they must not find him guilty of murder. To which the court added as a modification: But such design may be formed in a short time, and if the killing was with a deadly weapon it is evidence of a formal design. To the action of the court, in granting the instructions asked by the state, and refusing those of defendant, prisoner then and there excepted. A motion was made for a new trial, on the ground that the verdict was contrary to the law and the evidence, which was overruled, and the prisoner excepted and sued out a writ of error to this court, and assigns the following errors : 1st. The court below erred in excluding from the jury the testimony of the witness, P. Buck. 2d. The court erred in giving the instructions asked by the state. 3d. The court erred in refusing to give the 1st, 2d, and 3d charges asked by the prisoner, and in giving the instructions framed by the court as a substitute for them. 4th. The court erred in refusing to give the prisoner’s 4th charge, as asked by him; and in modifying the same. 5th. The court erred in refusing to give the prisoner’s 5th and 6th charges, as asked by him and in modifying the same. 6th. The jury found contrary to the law and evidence. appointed by the court to represent the plaintiff in error, made an oral argument and fled the following brief: 1st. On the exclusion of the testimony of P. Buck, the evidence is relevant to the issue. 1 Greenleaf on Ev., §§ 53, 60, 613-17, 593. Also, 1 Greenleaf on Ev., § 54, 62; § 504 8; ib. § 352. The proof in this case, on either side, was exceedingly infirm, the important evidence for the state being drawn from the family of the deceased, and containing contradictions and discrepancies ; the important evidence for the accused being drawn from the family of the accused, and containing contradictions and discrepancies, and the evidence on the one side, conflicting with that on the other. Under these circumstances, perhaps, the two proofs were on a balance in the jury’s mind, and the exclusion of the testimony of P. Buck, a disinterested witness, which tended, in however slight a degree, to bolster up the prisoners case, may have turned the scale against him. Can the appellate court now say that each of the twelve men who brought in this verdict, was so satisfied in his own mind in every material point, that slight additional evidence would not have raised a reasonable doubt? Such a doubt in a single mind should have destroyed the verdict. 2d. In the instructions, the court below announce erroneous principles on three points. 1st. On the point of reasonable ground to apprehend a-design to commit a felony. When we cluster the 1st, 2d, and 3d charges asked by the prisoner, and the rejection of them by the court, with the substitute given by the court in their stead, and the 4 th charge for the prisoner refused as asked, and modified by the court, we see that the court announced to the jury these principles, as the law in a case where a person indicted for murder interposed the plea of necessary killing in self-defense. (Í.) The accused is bound to show to the jury, by clear and satisfactory proof, that there was an actual necessity for the killing ; the jury must be satisfied that the deceased intended, and it was his purpose to kill the accused or do him great bodily harm ; and if the jury believe the accused deliberately shot and killed the deceased at the time when there was no actual danger of life, or of great bodily harm, he is guilty of murder. 2d. It is not sufficient to show that the accused killed, at a time when he had reasonable ground to apprehend a design on the part of deceased to kill him or do him great bodily harm, and that there was immediate danger of such design being accomplished ; for it is untrue “ that the necessity to take life, to -be justifiable, need not be actual.” (2.) These principles are not law. The law is not what is declared to be in the first proposition, and it is what it is declared not to be in the second. See Bev. Code, 1857, p. 601, art. 168 (Hutch. Code, 957, § 3, essentially in the same words); 30 Miss., 628; 31 ib., 37 ib.,343 and 401; 302, 311; 26 Miss., 387; 1 Bishop on Grim. Law, § 384 and note. 3d. These erroneous enunciations excluded from the jury facts in evidence which, had they been allowed to consider them, might have led to a different verdict, when once satisfied that the deceased had no design to kill the accused, or that there was, from any cause, no actual danger to the accused, the jury were precluded from considering any further facts tending to show that on reasonable grounds the accused apprehended such designs. There was a strong case to show that the deceased had no such design, and that no actual danger existed, while the defense of the accused went in its greatest force to establish that from the circumstances surrounding him at the time, he had reasonable ground to apprehend such a design, and that there was imminent danger of its accomplishment. 2d. On the point of reasonable doubt whether the homicide is justifiable. Homicide is justifiable. 1st. When we cluster the' 4th charge for the prisoner with the modification and the latter part of the substitute for the 1st, 2d, and 3d charges for the prisoner, we see that the court announced to the jury this principle : Where a person, indicted for murder, inter.pose the plea of justifiable homicide, in self-defense, it devolves on the accused to show to the jury, by clear and satisfactory proof, actual necessity for the killing; the jury must be satisfied that the deceased intended to do great bodily harm. This the accused is bound to show. 2d. The law is : 1st. Where the circumstances of the killing are in evidence, whether introduced by state or prisoner, and the accused takes his defense from these circumstances, the burden of proof rests upon the government and never shifts, and the jury must be satisfied to the exclusion of a reasonable doubt arising from the evidence, that the accused killed the deceased, not in justifiable self-defense; and, if they have such a reasonable doubt as to whether the homicide was justifiable, they must acquit. 3d. Where the unexplained fact of killing is alone in evidence, the law presumes malice; and if in such, or any case, the accused bases his defense on some distinct substantive grounds, not part of the circumstances of the killing — as insanity — he must prove his defense by an equilibrium, if not a preponderance of evidence. See 8 S. & M., 407 ; 3 Gray, 465 ; 28 Miss., 698; 1 Gray, 62-3-4-5; 8 Ga., 405 ; ib., 298-9, and 302-3; 1 Greenl. on Evidence (Redfield’s edition), § 81, notes, etc. 3d. Acting under the erroneous enunciation of the court, as law, unless they were satisfied, by clear and satisfactory proof that, the accused killed under the pressure of an actual necessity, the jury were precluded from considering the-evidence tending to prove the necessity, although it may-have been sufficient to raise a reasonable doubt, or to put the-proof on the point, in eqleüiíris, or even if it were in slight preponderance in favor of the necessity. On the-point of implied malice: 1st. When we cluster the 5th and 6th charges for the deceased, noting the fact that they were refused as asked, and the modifications added, and the 3d charge for the state, we- see the court instructed the-jury, that the prisoner armed himself with a deadly weapon, for the- purpose of seeking a difficulty with deceased, intending only to use it if it became necessary to save his own life, and being so armed, with such intention sought and Brought on a difficulty with deceased, and killed him with the weapon, it is murder, i. e., a conclusive presumption of malice. 2d. The law, as announced by this court, seems to intimate that the presumption, in such case, would be only prima facie* See 1 Ga., 678 and 681, by Fisher, J.; 11 Ga., 512-13, by Fisher, J.; 9 Ga., 301; 10 Ga., 593 and 612. The conclusive presumption is raised when the weapon is concealed, unfairness used, and undue advantage taken. 7 Ga., 541» The evidence of defendant’s witness, Buck, in the court below, in respect to mutual ill-feeling and threats between the accused and the deceased, several weeks — probably months — -before the killing, was properly excluded from the jury, not only because of the long time that had elapsed after these exhibitions and before the killing, and, because of the fact that, according to defendant’s own showing, those differences had been reconciled and friendly .relations restored, but for another and still better reason. The state might safely admit that the time of those differences, instead of being months, had been only an hour, before the killing-; that the threats had been positive, instead of being conditional, as they were; that the ill-feeling and threats instead of being mutual, as they Were, had been all on the side of the deceased; and that instead of being “made up,” as the witness testified, the ill-feeling and threats had continued in the breast of the deceased, and the threats upon his lips until the very moment of his death ; and still, all this would avail the accused nothing. Because the proof is, that, having-armed himself with a shot gun loaded with buckshot, he sent for the deceased in the field where he was at work; induced him, all unarmed and in his shirt-sleeves, as he was, to leave his work and go to the accused at the house, and then, taking-advantage of his helpless and unarmed condition, shot him dead. The accused being at the house and thus armed, sent word to the deceased by the witness, Jim, to come, and he came and was shot. The counsel for accused, in his defense, contends that the deceased knew that it was a fight — a mortal combat — to which he was invited, and, that accepting the challenge, he came “with'an elastic tread,” and was killed in the act of going into his house to get a gun. This is certainly an ingenious conjecture, contradicted and unsustained, as it certainly is, by the proof and circumstances of the case. But let it be admitted for the argument’s sake. And what then ? The killing, even under these circumstances, is murder at common law. See Wharton O. L., § 958; Smith v. State, 1 Yerg. Tenn. B., 228; and also by the statutes of this state. Eev. Code, p. 600, articles 165,166. But when it is observed that Buck’s evidence tended only to show the existence of bad feeling on the part of the deceased, manifested by threats, made when deceased was ‘■'■very much excited and intoxicated that those threats were made upon conditions, and that probably “ six weeks afterward,” like ill-feeling and like threats were indulged by the accused, who said that he and the deceased had “ made it up;” and that the killing occurred probably several weeks afterward, upon the challenge of the accused to deceased to come and have a shooting match; it is perfectly apparent that Buck’s testimony, however true it may have been in point of fact, was inapplicable and irrelevant to the issue before the jury, and was, therefore, properly excluded from their consideration. In respect to the rulings of the court in giving, refusing and modifying the instructions asked by the state and by the defense, all of which are embodied in the record, I deem it unnecessary on the part of the state to enter upon any discussion. Those given on both sides, taken as a whole, contain a clear and correct statement of the law applicable to the evidence. Those refused on the side of the accused, were properly refused, because incorrect as legal propositions, or, if not, they were certainly inapplicable to the facts before the jury, or mere repetitions of the same legal principles which the court had already given in other charges contained in the record. See Riggs v. State, 30 Miss., 635 ; Mask v. State, 36 ib., 77; Browning v. State, 33 ib., 48; Beason et al v. State, 34 ib., 602. In replying, made an elaborate oral argument, holding that the rule of Dyson v. the State as modified by Wesley v. the State, 37 Miss., 349, was the law of the present case ; and the substitute given for the 1st, 2d, and 3d charges of the prisoner was altogether more stringent than said rule. He also insisted that Buck’s testimony was material, and should have been admitted.