Bain v. State

| Miss. | Apr 15, 1890

Cooper, J.,

delivered the opinion of the court.

The appellant has been indicted and convicted of the offense of perjury. The sole defense attempted to be proved was that appellant’s life had been threatened by one Neto Dodd, unless he should go into court and testify so as to criminate himself and certain .other persons who were suspected of having murdered a negro man -and his wife, tenants upon the farm of Dodd. The court below ¡excluded the evidence tendered to show the threats upon the ground -that it was not proposed to be shown that the threats were made at the instant of delivery of the testimony nor in the presence of the court in which the appellant was testifying. This ruling of the court is the foundation of the errors assigned, the assignments of error other than the first presenting the same question in different forms.

Counsel for appellant press upon our attention with apparent confidence that numerous class of cases in which the credibility of confessions or of testimony has been assailed and impeached by the circumstances under- which the confessing person, or witness spoke. We fail to perceive their application to the case at bar, in which the single question is, whether a man may- justify or excuse deliberate peijury against the life and liberty of others on the ground that he was coerced to the perjury by fear engendered by the threats of others.

We are not aware that a similar question has ever been presented for decision.

We can conceive of cases in which an act, criminal in its nature, may be committed by one under such circumstances of coercion as to free him from criminality. The impelling danger, however, should be present, imminent and impending, and not to be avoided.

Such was not the character of -the duress here, and the appellant was not only possessed of the power and right of protecting himself, but he also could have appealed to the law to shield him from the threatened danger.

If Dodd, by whom the threats were made, should attempt to carry them into execution, the appellant might lawfully oppose force to force, and if necessary might, in the defense of his person, lawfully slay his assailant. But if appellant feared the superior strength or courage of Dodd, he might have invoked the protection of the court.

The law has made ample provision for the protection of persons and property under precisely the circumstances named by appellant. By section 3126 of the code it is provided that “whenever complaint is made under oath by a credible person to any justice of the peace that any person has threatened to commit any offense punishable by the laws of this state against the person or property of another, and such justice is satisfied that there is good reason to fear the commission of such offense, he may issue his warrant to arrest and bring the person complained of before himself, or some other justice of the peace, and the justice of the peace before whom such person may be brought shall examine into said charge, and if there be just reason to apprehend that such person wilbcommit the offense, he shall be required by such justice to enter into bond or recognizance in such sum, and with such sureties, and for such time, not exceeding twelve months, as such justice may prescribe, conditioned to keep the peace towards the person against whom or whose property there is reason to fear the offense may be committed.”

If default be made in giving the bond required by the justice, it is provided by section 3128 that the person so failing shall be by the officer committed to jail until the bond be given, or until the expiration of the time for which he was required to furnish such security.

The social system would be -subverted and there would be no protection for persons or property if the fear of man, needlessly and cravenly entertained, should be held to justify or excuse breaches of the criminal laws of the- state, and to excuse or justify the crime of pejjury.

The judgment is affirmed.