Cotton v. State

FisheR, J.:

Thé prisoner having been convicted at the last November term of the circuit court of Yazoo county, of the crime of murder, has brought this case for revision into court.

The errors assigned relate :—First. To the action of the court *920 in empanelling the jury by whom the prisoner was tried. Second. To the instructions given on behalf of the state; to certain modifications of the instructions asked on behalf of the prisoner; and, Third. To the action of the court in overruling the motion in arrest of judgment. These several errors will be noticed in the order in which they have been assigned by counsel.

As to the first assignment. A juror being tendered by the state to the prisoner, was asked if he had formed or expressed an opinion as to his guilt or innocence. Answering that he had formed such opinion, the juror proceeded further to state that his opinion thus formed, was such that it would “ require testimony to remove it,” whereupon the prisoner’s counsel challenged the juror for cause; but the court proceeding further to interrogate him, the juror stated that his opinion was formed from rumor, and that he felt as free to act in the matter, as if he had heard nothing about the case; thereupon the court held the juror competent, and forced the prisoner either to accept the juror, or to challenge him peremptorily.

The same state of facts apply to two other jurors tendered by the state to the prisoner. This point underwent elaborate consideration by this court in the case of Nelms v. The State, 13 S. & M., 500 ; and the facts of that case, if not identical, are certainly not stronger than the facts of the case at bar. The juror in that case was held incompetent; and recognizing that decision as authority, we are compelled to hold that the jurors tendered to the prisoner were incompetent, and should not have been forced upon him by the court. 1

*921 Next, as to the instructions of the court. It is said that the second instruction limited the investigation of the jury to the crime of murder or to the defense of excusable homicide, and they were not permitted to take into consideration the defense of manslaughter, which, so far as the crime of murder is concerned, may be regarded as a defense to the prisoner. The instruction was, no doubt, intended to leave the jury free to investigate, according to the testimony, the degree of crime of which the accused, if guilty at all, was really guilty; but it must be admitted at the same time that the instruction, if taken strictly according to its language, might warrant the construction given to it by counsel, and might have confined the jury to an investigation too limited. The jury, no doubt, without the instruction, would have clearly understood their duty, and the question is, whether it tended to 'cramp their action ? In answering this question, we think it barely possible that the instruction could have produced such an effect. Our conclusion upon this point, therefore, is that, while the instruction was wholly unnecessary, and while we are of opinion that it did not in the least influence the jury, and we would not, therefore, reverse the judgment if this were the only error, yet the safer rule, unquestionably, is that, where the court undertakes to give even unnecessary instructions in this class of cases, the instructions should not be framed, so as even by remote construction to limit the free action of the jury in considering the testimony before them.

It is next said that the court erred in giving the fourth instruction, which was as follows: “ That to render the homicide justifiable by the law, on the ground of self-defense, it must appear from the evidence that Cotton, the accused, acted con *922 scientiously upon reasonable fear, founded upon present overt acts of Smith, the deceased, to all appearances hostile, threatening a felony or some great personal injury ; and the danger of sueh felony being accomplished or great personal injury being inflicted, to all appearances must be immediate, pending, and unavoidable at the time of killing, though there really might be no actual danger.”

The party interposing the plea of self-defense, on a trial for murder, must be understood as undertaking to show that in the perpetration of the deed he acted under a necessity, either actual or apparent, forced upon him by the party killed; for if such were not the case, his defense cannot avail him any thing, or certainly not further than to mitigate the crime. The very defense presupposes danger to the party’s life or person, except in cases where he may act in defense of the life or person of another. When he assumes the defense, he at the saíne time undertakes to establish the danger, or what is the same thing, what appeared to be danger. The question presented by this instruction is, in what manner must the danger exist to justify the party in taking the life of his adversary ? The law says that there must be reasonable ground to apprehend a design to commit a felony, or do some great personal injury, and imminent danger of such design being accomplished. Hutch. Code, 957. Seasonable ground to apprehend the design and imminent danger of its accomplishment must both exist at the same time. What is reasonable ground to apprehend such design must always be as much, or, indeed, more a question of fact for the jury than a question of law for the court; for, while it is true that, in regard to inanimate subjects, where the fact is the same, the law must also be the same, this is not true, even as a general rule, in this class of cases. The hostile demonstrations of two men may in every respect be the same; yet the party threatened may be placed in imminent peril from the conduct of one and feel not the slightest danger from the other. A design to commit a felony or to do some great personal injury may be apprehended in the one case and it may have no existence whatever in the other. One may excite fear and the greatest apprehensions of danger, while the same demonstra *923 tions on the part of another may only excite mirth and ridicule. The question is in both cases the same — was there imminent danger to the life- or to the person of the party threatened ? As a part of the means of arriving at the truth of this fact, the peculiar character of the hostile party is as much a fact for the consideration of the jury as any other fact in issue; and the jury must determine from the hostile demonstrations whether there was such danger of this party’s executing his felonious design as to justify the party killing; in doing so, although there may have been no actual danger from the deceased at that very moment of time, the question in such case is, whether, by the delay, the danger is not increased ; as, for instance, suppose the party threatened is in the upper story of a building, and the ground to apprehend the design to take his life or do great personal injury, is there for the first time discovered, and his adversary leaves for the purpose of arming himself and taking a favorable position at the foot of the stairs, with the known and avowed purpose of committing the deed while the party is descending to make his way out of the building, would a few moments, or even ten minutes, make any difference in the killing in such a case ? The very act of allowing the hostile party to escape might prove fatal to the party threatened and deprive him of all means of self-defense. It may be said that this is putting an extreme case. Grant it. It nevertheless serves the purpose for'which it was intended, of showing the impropriety of laying down a rule, within the operation of which the court declares a person, without regard to the peculiar circumstances of the case, must bring his defense, in order to be successful. Whether the danger must be immediate or unavoidable at the time of killing to justify the party in the act, must depend upon the facts and circumstances of the case. This is the only general rule which a court can with any safety lay down on the subject. The jury must of necessity "be the judges whether reasonable ground to apprehend the design contemplated by the law existed, and whether there was imminent danger, from all appearances, that such design would be executed. In arriving at their conclusion on this subject, they are expected to avail themselves of such knowledge as they *924 possess in regard to human transactions from their intercourse with society. The right of self-defense is not derived from the law. All the law attempts to do on the subject is, to prescribe rules of caution and prudence to be observed by persons before exercising the right, by ascertaining whether the danger exists and whether it is imminent; and, as already remarked, whether it must be immediate and impending at the very time of killing, will depend upon the facts and circumstances surrounding the transaction.

But it is not necessary to pursue this subject further, and we proceed next to notice the seventh instruction, as follows: “ That if the accused was armed with a deadly weapon, and sought and brought about the difficulty with the deceased, and killed the deceased, in the difficulty, with such weapon, he is guilty of murder.” The fact of a man being armed with a deadly weapon, though he may be the aggressor in a difficulty, amounts to nothing, unless he provided himself with the weapon, with a view to using it if necessary in overcoming his adversary. It may be a man’s habit, as it is unquestionably his right under the law of this state, to carry a deadly weapon, and "whether he is permitted to use it or not, must depend upon the nature of the difficulty in which he may be involved. A man may begin a difficulty, intending to inflict no violence, or next thing to none, on his antagonist, and may be so closely pressed as to be forced to use his weapon in self-defense. The rule is stated thus by Blackstone: “ If the slayer has not begun the fight, or (having begun) endeavors to decline any further struggle, and after-wards being closely pressed by his antagonist, kills him to avoid his own destruction, this is homicide, excusable by self-defense.” 4 BL Com., 184. In such case, the party having commenced the difficulty, he can only use his weapon in self-defense, or take the life of the other party, when the danger is immediate or impending, and unavoidable.

The first and second instructions, asked on behalf of the prisoner, simply announce, as a legal proposition, that to make out the crime of murder, it must appear that the prisoner “ acted from a premeditated design, formed beforehand, to effect the death of the deceased.” These instructions ought to have been *925 given as asked, as they were entirely free from objection. The court may modify an instruction to make it correct, but if it be already correct, it ought to be given as asked by counsel.

The qualification of the court, made to the third instruction, is clearly erroneous. The instruction is, in substance, that if Cotton killed Smith, not in pursuance of a premeditated design, but on a sudden quarrel, the crime of murder is not madeput. The modification made is, “ unless Cotton sought the quarrel and used a deadly weapon.” The question was, whether malice prompted the accused to kill. He interposed, as his defense, by the instruction, “ no design to Mil, and that the killing was on a sudden quarrel.” . The court say to him that this is no defense, not even to mitigate the crime, if you sought the quarrel and used a deadly weapon, blow, he may have done both, without being guilty of murder; for he may not, by seeking the quarrel, have intended the slightest personal injury to the deceased, and he may, from sudden provocation, have used his weapon, or he may have been forced to do so in self-defense, although he was the aggressor in the quarrel.

The modification amounts to this, that although there must bé a formed design to take life, to constitute murder; yet such design is not necessary where the party killing seeks the quarrel, and uses a deadly weapon.

There must be proof of malice, in some form; the seeking of the quarrel, and using the deadly weapon, may be evidence for this purpose. ' But this is what the defendant below was endeavoring to meet, by showing no design to take life, because the killing occurred on a sudden quarrel. The modification virtually declares this to be no defense, if the party sought the quarrel.

We will briefly dispose of the error last assigned—the motion in arrest of judgment.

The venire from which the grand jurors were taken, contains their names in full; but their Christian names, that is of some of them, are abbreviated on the minutes of the court; as, for instance, the name of Fountain Barksdale appears in full on the venire, and it is F. Barksdale on the minutes. We do not think this error can prevail, when the record shows that the grand *926 jurors were taken from the persons whose names appear on the venire.

It is next said that one of the grand jurors was excused, and the record does not show upon what ground. The record shows that the excuse was, by the court, considered sufficient. This must be treated as a legal excuse.

Judgment reversed, venire de novo awarded, and cause remanded.

Wharton Am. Cr. Law, 3004; King v. State, 5 How., 730 ; State v. Johnson, 1 Walker, 392 ; Nelms v. State, 13 S. & M., 500 ; People v. Mahony, 18 Cal., 180 ; Burtine v. State, 18 Ga., 534 ; Rice v. State, 7 Ind., 332 ; Bradford v. State, 15 ib., 347; McGregg v. State, 4 Blackf., 101 ; Romaine v. State, 7 Ind., 63 ; Morgan v. Stevenson, 6 Ind., 169 ; State v. Sater, 8 Iowa, 420 ; Commonwealth v. Webster, 5 Cush., 295 ; Commonwealth v. Gee, 6 ib., 174; Baldwin v. State, 12 Mo., 223 .

GENERAL BULE AS TO PREADJUDICATION OF JUBOBS.

A previous opinion formed on rumor does not disqualify a juror; but one formed on hearing information from a witness, either directly or through another person, does render a juror incompetent. Nelms v. State, 13 S. & M., 500 ; and see The State v. Johnson, Walker R., 392; King v. State, 5 How., 730 . If upon examination a juror is found to have formed an opinion as to the issue to be passed upon, he may he set aside before either party has an opportunity to challenge him. Marsh v. State, 30 Miss., 627 ; and see Sam’s case, supra.

It is ground for a new trial, that, after a juror was summoned, and before trial, he said he did not see how he could clear the defendant should he be on the jury, but *921 he would be bound to find him guilty,—In a ease, where, on the preliminary examination he denied haying formed or expressed an opinion. Cody v. State, 3 How., 27 . That a juror has impressions as to the guilt of the prisoner, derived from hearing the testimony in another case, is not sufficient to disqualify him. “ To disqualify,” it was obseived, “the juror must have formed and expressed an opinion, or have such acknowledged prejudice or bias as would disable him from doing justice, according to the evidence between the state and the accused.” Noe v. State, 5 How., 330 . Though no general rules of competency can be fixed, each case depending on its peculiar circumstances, it may be stated generally, that a juror is incompetent, to sit in a case on which his mind is so far prejudiced as to require evidence to annul the opinion he. has formed. Sam v. State, 13 S. & M., 189 . Even though the opinion is formed from rumor, it disqualifies, if evidence is required to remove it. Alfred v. State, 37 Miss., 296 ; Ogle v. State, 33 Miss., 383 .