Adams v. State, 101 So. 437

101 So. 437 | Miss. | 1924

Cook, J.,

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-wood denied that he made such a statement, whereupon the appellant insisted that he had said it, and deceased again denied the statement. Thereupon the appellant, while holding in one hand an open long-handled knife, caught the deceased in the collar with the other' hand and said to him, “I will cut your damned head off.-” At this point Bob Newsom, one of their companions, went up to the pair, caught the appellant by the arm, and said to him, “Come on and don’t do that; there is nothing about what a fellow said.” Newsom testified that the appellant then cut at him with the knife, but he succeeded in separating them, and the appellant walked away with Newsom, still holding the open knife in his hand. As he walked away he looked back at the deceased and told him that he would kill him. When the appellant and Bob Newson had walked away about eight steps, Norwood, the deceased, picked up1 a fence rail several feet long and advanced upon the appellant. Just as Norwood was in the act of striking him, with this rail the appellant partially turned toward Norwood, and as he did so Norwood struck him a stunning blow with the rail, which knocked him to his knees and broke the rail. Norwood then raised the piece of rail still in his hand to strike a second blow, and, as he was in the act of striking the second blow, the appellant, still on his knees from the first blow, plunged his knife into Norwood’s chest and cut him a second time across the shoulder. Norwood staggered a few feet away and died in a few moments. • The first assignment of error urged by the appellant is based upon the action of the court in refusing a peremptory instruction requested by him. There was no error in refusing this instruction. Under the facts in this record the issues involved should have been submitted to the jury under instructions properly submitting the theory of the appellant that the fatal blow was struck in the necessary defense of his person.

The next .assignment of error brings into review the t first instruction granted for the state, which instruction told the jury that—

“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; Pulpus v. State, 82 Miss. 548, 34 So. 2; Jones v. State, 84 Miss. 194, 36 So. 243; Garner v. State, 93 Miss. 843, 47 So. 500; Williams v. State, 115 Miss. 716, 76 So. 637.

Reversed and remanded.