101 So. 437 | Miss. | 1924
delivered the opinion of the court.
The appellant, Garfield Adams, was indicted and tried for murder in the circuit court of Jefferson Davis county, and was convicted of manslaughter and sentenced to the penitentiary for fifteen years, and from this conviction and sentence he prosecuted an appeal.
The facts upon which this conviction rests are substantially as follows: The appellant, Garfield Adams, the deceased, "Willie Norwood, and two companions, all negro boys between the ages of fifteen and eighteen years, were proceeding along a settlement road on Sunday afternoon. After they had traveled some distance from the starting point the appellant said to Willie Norwood, the deceased, “I heard you were going to kill me.” Nor-
“Under the law one who provokes a difficulty with another, and arms, herself with a deadly weapon with the felonious intent to willfully, unlawfully, feloniously, and of his malice aforethought, kill and murder such other' human being, and who pursues such intention to the extent of precipitating a difficulty with such other person while thus armed cannot, in such difficulty thus provoked by him, justify his act in taking the life of such other person by a plea that such killing was done in self-defense.”
On the facts in this case it was error to grant this instruction. Instructions similar to this one have been repeatedly condemned by this court, and in the case of Lofton v. State, 79 Miss. 723, 31 So. 420, it was said that this form of charge “can never be proper, save in the few very rare cases where the case is' such, on its facts, that,a charge can be given embracing all the elements — not part of them, nor nearly all of them- — -essential to the estoppel” to plead self-defense. There was evidence from which the jury would have been warranted in finding that the appellant had in good faith abandoned the difficulty and was retiring from the scene, and while so doing he was pursued and attacked by the deceased with a dangerous or deadly weapon, and that at the time he struck the fatal blow he was in imminent danger of losing his life or suffering some great bodily harm at the hands of his assailant. This being true, the appellant was not estopped to plead self-defense, and it was error to grant this instruction which, as applied to the facts in this case, omitted this -necessary qualification. Smith v. State, 75 Miss. 553, 23 So. 260; Patterson v. State, 75 Miss. 675, 23 So. 647; Lofton v. State, 79 Miss. 723, 31 So. 420; Cooper v. State, 80 Miss. 175, 31 So. 579;
Reversed and remanded.