Hill v. State

Wiiitpield, C. J.,

delivered the opinion of the court.

The testimony in this case shows that the deceased, Sam Green, was physically “twice as stout, and strong” a man as the appellant, and that he was also a man of vindictive and violent -character. It is also shown that he had made a wholly unwarranted attack upon the appellant the evening before the killing, ■and that he was the aggressor in the difficulty in which he was killed. The testimony further shows that the appellant was a •small man, incapable of coping with deceased physically, and that appellant was a man of good reputation, and was endeavoring all the time to avoid a difficulty with the deceased.

*394 In this state of the evidence, the court gave for the state instruction No. 4, which is as follows: “The court instructs the-jury that words 'great bodily harm,’ in contemplation of law,, do not mean such bodily harm as might have been inflicted by mere blows with the hands or feet”—and, having given this-instruction for the state, refused the two following instructions-for the defendant, which were asked with a view to cure the error in the fourth instruction for the state on the testimony in the record:

“The court instructs the jury that if the evidence shows that ihe deceased was physically capable of inflicting great and serious bodily harm upon the defendant with his feet or hands,, and that the defendant had reason to believe and did believe that He was then and there in danger of such harm at the hands of the-deceased, and fired the fatal shot to protect himself from such harm, then it is immaterial, and makes no difference, whether the deceased was armed or not at the time of the killing.”

“The court instructs the jury that if the deceased was a much-larger and stronger man than the defendant, so much so that the defendant wTas wholly and absolutely incapable of coping with him in a physical combat, and was liable to receive serious and great bodily injuries at the hands of the deceased in the event that they became engaged in such a combat, then the defendant was justified in rising a deadly weapon to protect himself from an unjustifiable and deadly attack of the deceased, even though the deceased was wholly unarmed, and the defendant was in no danger from the deceased, except such as might be inflicted by the deceased with his hands or feet.”

Instruction No. 4 for the state is plainly erroneous on the case made by the facts in evidence. It is doubtless true that one may not, ordinarily, repel the attack of an unarmed man, who is not his superior in physical power by killing him, because in such-case the two men being, of equal size and physical strength, the attack of one upon the other, without a deadly weapon, does not furnish to the one attacked reasonable ground to anticipate dan *395 ger to life or the infliction of great bodily harm. But the-trouble with this instruction No. 4 for the state is that it tells the jury, without qualification or modification of any kind, that the great bodily harm which the law contemplates never can be,, under any circumstances, such as may be inflicted by mere blows with the hands or feet. This is palpably erroneous. There may be many cases in which the disparity between the combatants is so overwhelming that the one of superior physical power may inflict great bodily harm, or death itself, by mere-blows with the hands or feet.

This doctrine is well settled by this court in the case of Hall v. State, 1 South. 351 . In that case this court, speaking through Cooper, O. <!., said: “Nothing appears in the evidence tending to show there was any disparity in age, size, or strength between the deceased and the defendant, and in the absence of' such evidence the first instruction for the state was not erroneous. One may not repel the attack of an unarmed man, not his superior in physical power, by slaying him; for such attack does not furnish sufficient evidence to one of ordinary strength and courage to anticipate either that life will be taken, or great bodily harm done, such as justified the killing of his adversary.”

In this case the evidence shows plainly such disparity in physical strength and power-, and the giving of the fourth instruction, coupled with the refusal of the two instructions set out above, refused to the defendant, constitute fatal error.

We do not deem it necessary now to notice any other of the-assignments of error.

The judgment is reversed, and the cause remanded.