Lamar v. State

Cbiminal Pbaotice. Instruction. Repetition allowable. Rule as to abstract and concrete. ^ A defendant in a criminal case is entitled to an instruction asked, embodying a principle of law applied to bis theory of the facts deducible from the whole evidence, even though such principle was already before stated in the abstract by another instruction for the accused, if there be' in the evidence such basis for doubt .as to entitle the accused to have his theory considered. Aid-rige v. The State, 59 Miss, 250, cited. It is better practice to charge the law as applied to the respective theories contended for than to announce principles in the abstract.

Appeal from the Circuit Court of La Fayette County. HoN. W. S. Featherstok, Judge. Bob Lamar was indicted for the murder 'of one ¥m. Harmon. It appears that on the day of the killing, Lamar, Lock Bishop, and others were in the little town of Dallas, drinking and carousing. They became riotous, and Lamar shot one Ab. Ceasly. Thereupon Lamar and the Bishops started down a public road, apparently to leave the towm After they had gone several hundred yards they turned and seemed to be coming back. William Harmon, postmaster at Dallas, his brother, a merchant, and several others, thereupon went down the road to meet Lamar and the Bishops, and when they had met, William Harmon asked Lamar to leave and not to come back to the town, and said that he, Lamar, “ had shot one man and that they did not want any more trouble.” A quarrel and fight ensued between the two parties and William Harmon was killed. The evidence as to what occurred during this meeting is somewhat conflicting. On the trial the court instructed the jury for the defendant as follows: “7. The court instructs the jury that even should they believe from the evidence that accused killed the deceased, yet if deceased was killed when accused honestly and reasonably believed, from the behavior of deceased, that deceased was then and there seeking to take the life of accused, or to do him some great bodily harm, and that the only way of avoiding such injury at the hands of the deceased was to slay, then accused had a right to defend himself, even to the infliction of death, and the jury must acquit. , “And this is true, although the jury should further believe from the evidence that accused was in no actual danger of such injury, if he was in apparent danger of it. “And further, accused is entitled to be acquitted if the jury have left on their minds by the evidence a reasonable doubt as to whether the accused honestly and reasonably believed as above set forth, under the circumstances above set forth.” The court refused to give the eighth instruction asked by the defendant, which was as follows : “8. The court instructs the jury that even although they may believe from the evidence that accused had been drunk, disorderly, and violent in Dallas just before the fatal affray, and that deceased and others considered that it would be a disgrace to the town to permit, him to remain there and ‘ cut up ’ as he had been doing, and went to him for the purpose of inducing him to leave the town; yet if they further believe from the evidence that at the time of their going to him the accused was in the public road in or near Dallas, and was not then and there violent or riotous, the deceased and such others as went with deceased had no right to approach accused in a threatening manner, with weapons of a deadly character exhibited and in a condition to be used ; and if the jury believe from the evidence, or have a reasonable doubt but that accused was so approached by deceased and his companions, and fired from a reasonable apprehension that they were then about to take his life or do him some great bodily harm, then they must acquit the accused.” The defendant was convicted and he appealed. filed an assignment of errors. The Attorney General submitted the case for the State without argument.