Echols v. State

1. Homicide. Provocation of difficulty. Uncommunicated threats. A father who learns of the seduction of his daughter has the right to . seek the seducer for an explanation and for a peaceful adjustment of the matter; and in seeking this end, he has the further right to arm himself, not with the intention to provoke a difficulty, but to protect himself if necessary, in self-defense. 2. Uncommunicated Threats. Evidence. Uncommunicated threats are admissible on the trial of a criminal case when there is a conflict in the testimony as to who was the aggressor, where they throw light on the significance of the acts of the deceased. 5. Conditional Threats. On the trial of a homicide case conditional threats of deceased are admissible; where the condition of the threats of deceased had materialized.

Appeal from the circuit court of Tate county. Hon. L. F. Rainwater, Judge. Will Henry Echols was convicted of murder and appeals. The facts are fully stated in the opinion of the court. The court erred in refusing instruction “No. 1 refused” as requested by appellant. The theory and the argument of the state was that, appellant learned of the seduction of his daughter; that he at once armed himself, sought defendant for the purpose of killing him, provoked the difficulty by the very fact of the carrying of the weapon, and did kill him. This instruction states the law as asked; that he had the right to arm himself and seek the interview and that carrying the weapon was of itself no provocation. It meets their argument by a sound proposition of law. If it is the law, appellant was entitled to it and it is reversible error to refuse it. Patterson v. State, 75 Miss. 670. “A man who is told by his wife of insulting conduct by a third person towards her has a right to seek for an explanation and to ask a retraction, and in so doing he has the right to arm himself to resist any anticipated attack.” 83 S. W. (Tex. Crim. App.) 822; Allison v. U. S., 160 U. S. 203, 40 L. Ed. 395. The refusal of the next instruction will be argued with the rejection of the evidence upon which it was based, which constitutes the next assignment of error. If the court was right in excluding all evidence of threats, then it was right in refusing an instruction predicated upon threats, but'the converse is true. If the evidence as to threats made by deceased against appellant should have been admitted, then the instruction should have been given. Appellant testified that his daughter Etta said “Pointelle told her he would kill her if she said anything about it, and if I said anything to him about it he would kill me too.” This on the objection of the state was excluded from the jury. Mose Faulkner testified Pointelle said to him in the presence of his wife, “If he, Will Henry, ever fooled with me, I am going to kill him.” Anna Faulkner testified that three or four days before Christmas Pointelle said to her, “If Will Hénry ever fooled with him that he was going to kill him.” Both of these statements were excluded by the court upon the objection of the state over the protest of the defendant. It is impossible to conceive upon what ground the court excluded all threats, communicated or uncommunicated. It could not have been because no overt act on the part of deceased was shown, because if defendant’s testimony is to be believed, he acted solely in self-defense and was entitled to an acquittal. In fact, the court recognized this and instructed the jury fully as to defendant’s right of self-defense; his right to anticipate the attack of his adversary and his right to stand his ground, if he was not the aggressor; yet when he offered evidence of threats recently made hy the deceased against him directly to show to the jury which was the probable aggressor, the court promptly excluded the evidence. It could not have been because the language used did' not import a threat. “Language to be competent as a threat need not be a direct statement of an intention to inflict an injury, but may threaten indirectly, by way or inference or inuendo. It is sufficient if the statement indicate a contemplation of some hostility or violence, and the fact that it is susceptible of an innocent construction does not serve to exclude it. Threats are not inadmissible merely because conditional, but under some circumstances the conditions must be shown to have been met. 6 Ency. Ev., p. 638 and notes. In Keener’s case, 18 G-a. 194, referred to and approved by this court in Johnson v. State, 54 Miss. 430, the threats were that he had made him leave the brothel two or three times and that if he ever crossed his path he would kill him. This was held to be a threat and admissible. A threat that a saloon keeper must stop selling liquor or lose his life, or that he, the threatener would lose his, is competent evidence upon the trial of the saloon keeper for killing the threatener. Duke v. State (Ind.), 71 Am Dec. 370. Admit that the threats were conditional, ‘‘If he speaks to me about it, I will kill him, too.” “If he tackles me about it, I will kill him. ” “ If he fools with me, I will kill him.” When these expressions were used Pointelle knew the cruel wrong he had committed against appellant. He knew that when that wrong was discovered that Will Henry would most probably “speak to him about it,” “tackle him about it,” or “fool with him about it.” On the fatal morning his guilty conscience made him afraid to meet the 'man he had wronged. The conditions were met; Will Henry was there to speak-to him about his great wrong. He was there to tackle him to know why it was so, and what reparation he proposed to make. He was there to fool with him as the outraged and indignant father' of his seduced daughter, and according to the testimony of the defendant, Pointelle then attempted to carry his threats into execution. He had been spoken to about it; he had been tackled about it. Will Henry had hunted him up and attempted to fool with him about it, or to discuss the matter with him and he had attempted to make good his threat by trying to- kill Will Henry. So the fact that the threats are conditional, or in a conditional form, can make no difference in this case. They are admissible and their weight is for the jury. In Harris’s case, 72 Miss. 99, evidence of threats and instructions thereon were excluded. This court said, “We cannot weigh the testimony offered in the light of the charges refused or the testimony detailed above in the light of these charges, supposing them to have been given. It was for the jury to say with this testimony in and these instructions given, what credit they would give defendant’s witnesses and theory.” And the cause was reversed. In Watson’s case, 81 Miss. 700, the evidence of threats was admitted in the absence of the witness, but the cause was reversed because the vital importance of the testimony and the defendant’s right to have his witnesses present before the jury. “Uncommunicated threats are admissible when there is a reasonable doubt who was the aggressor; where they throw light on the significance of the acts of the deceased.” Sinclair' v. State, 87 Miss. 330; Johnson v. State, 54 Miss. 430. In the last case the doctrine is fully discussed. “The court will reverse for refusal to admit threats if the record is doubtful or the evidence conflicting.”' Holly v. State, 55Miss. 424; Hendrick v. State, 55 Miss. 436; Spivy v. State, 58 Miss. 858; Guice v. State, 60 Miss. 714. I call the court’s special attention to Hawthorne v. State, 61 Miss. 749, which is directly in point and decisive of this case. “Evidence of nncommnnicated threats are admissible where there is doubt as to who begun the difficulty. Who is the aggressor is doubtful where there is conflict in the testimony.” Johnson v. State, 66 Miss. 189; Belly. State, 66 Miss. 192; Wiggins v. U. S., 93 U. S. 465; Allison y. U. S., 40 Law Ed. 395. Counsel for appellant complains of the refusal of the trial judge refusing to give instruction marked number “11.” Everything asked for in this instruction was given by the court in the instruction just above referred to. Counsel complains that the court refused to give this instruction stating that appellant had a right to' carry his rifle with him to use, if necessary, in his self-defense. The instruction above quoted instructs the jury on this very point, saying that if he, defendant, had his rifle with him and used it in defending himself, he was not guilty. Then, if this part of the case had been covered by an instruction, it was clearly the right of the court to refuse another instruction on the same point. The main attack of counsel for appellant on the record in this case is the’ exclusion . of certain . alleged threats made by the deceased against the appellant, by the trial judge. In the testimony of Anna Faulkner, a daughter of appellant, is found this statement, “I saw Pointelle at my house three or four days before Christmas and he said, if he was to fool with him, he was going to kill him.” The court sustained an objection by counsel for the state to the introduction of this testimony and excluded it from the consideration of the jury. There is no contention on the part of counsel for appellant that this threat, if one, was communicated to the defendant. It is conditional, if he fools with me, I will kill him, then we have at best an uncommunicated, conditional threat. I submit that this was only a statement that the deceased was going to defend himself, if attacked by the appellant. Appellant himself says that he carried his rifle with him at all times; he also says that he had ordered the deceased to leave his, appellant’s home, and admits having had a difficulty with the deceased and that he had not seen him any more^until the morning of the killing, bad blood, mad, carrying his rifle all the time; in view of this state of.affairs, we submit that the only reasonable construction to be put on the statement of deceased is that he intended to defend himself if appellant attacked him. The deceased did have reason, from the acts and statement of appellant, that would give him, deceased, an apprehension that he might be attacked by the appellant, and his statement was equivalent to saying I am going* to defend myself. Uncommunicated threats were first declared admissible as evidence in this state in Johnson v. State, 54 Miss. 430. In this case the court said: “Where the testimony leaves it doubtful which was the aggressor, recent threats of the deceased against the accused, although never communicated to the latter, are admissible as tending to show the character of the killing.” ■ Also, “They will be excluded where living witnesses negative any assault by the deceased.” Can the court say, after a careful examination of this record, that the deceased made any assault on the appellant? A perusal of this record shows that the appellant armed himself with a Winchester 'rifle, sought the deceased at his, deceased’s home and when' deceased told appellant that he was afraid to come out on' a man who had his gun, said, ‘ ‘ Come on, I am here with my gnn because I carry- it with me all the time.” Deceased starts out of the room, passing by his own gun lying on the bed, and opens the-door of the room. In the meantime appellant has gotten off his mule, crossed the yard and stepped up into the-open passage in front of the deceased’s room, carrying his rifle with him. The deceased expected to find him on his mule out at the yard gate, but here just as he, deceased, opens the door, finds appellant in it with his drawn or extended rifle. Just at this point, the evidence-for the state and defendant conflict, or the statement of appellant and the witnesses for the state cross slightly. Appellant says that the deceased grabbed the rifle; witnesses for the state say that the deceased grabbed the rifle after appellant had shot. Taking appellant’s statement as true, upon which counsel for appellant attempts to predicate the competency of the alleged threats; appellant stating that deceased grabbed the rifle-after opening the door and finding me, appellant, standing in the door with the rifle in my hands. Appellant, says that he had just learned that morning that deceased had seduced his daughter; that he was mad; that this was his second trip over there to see deceased that morning; and when deceased opened the door and saw appellant standing there with his rifle, the mad expression on his face, expecting to find appellant outside the yard, under the circumstances, what is the only reasonable-theory of his, deceased, grabbing the rifle barrel? Upon the answer to this question by the court, I am willing to rest the results of the case, if the court believes the .deceased-was making an assault upon the appellant, that the deceased was the aggressor by this grabbing of the rifle barrel, then the alleged threats are competent and should have been allowed as evidence. The only reasonable inference-that can be drawn from this testimony is that deceased was only protecting himself from the premeditated assault of appellant. Does this testimony, and tbe only testimony of deceased grabbing tbe gun before the first shot was fired by appellant himself, leave any doubt as to whom was tbe aggressor? And unless it does, tbe threats are not competent. Johnson v. State, 54 Miss. 430. Tbe appellant says in bis testimony, “Tbe last shot I fired was when tbe deceased was turning around, with bis band raised and extended outwards and open.” The first two shots appellant claims were accidental; yet tbe deceased was shot five times, and there is no proof that deceased bad a weapon of any nature. Tbe appellant says be observed no weapon on tbe deceased. In Johnson v. State, 66 Miss. 189, tbe court said: “Evidence ■of previous uncommunicated threats is admissible in cases where it is doubtful who began tbe difficulty, as tending to solve tbe doubt.” Also, “such evidence is also admissible when it is clearly shown that tbe deceased, and not tbe accused, was tbe aggressor.” In 61 Miss. 749, the court says that there must be some overt act on tbe part of tbe deceased. This act must show an intention of carrying into effect tbe threats; it must be hostile. In Sinclair v. State, 87 Miss. 330, which case counsel for appellant cites, both contestants drew a pistol. There was evidence.to show that deceased was the aggressor and tbe court said, “In cases of doubt as to who tbe aggressor was, uncommunicated threats are competent.”