Bang v. State

60 Miss. 571 | Miss. | 1882

Campbell, C. J.,

delivered the opinion of the court.

The third instruction for the State declares that “ there must be actual danger'at the time” to justify a killing, and the danger “ must be imminent, pressing and unavoidable.” The firjst, part quoted was condemned in Dyson v. The State, 26 Miss. 362, and the.other in Long v. The State, 52 Miss. 23.

The latter part of the fourth instruction,which announces that the danger to the accused, to justify him in killing, must have been “unavoidable” is objectionable. Long v. The State, supra. It is not true that the danger must be unavoidable to justify thh assailed from acting in his defence. Remarks to that effect have been made Jby judges, and instructions containing such announcement have been approved in this court, but this,precise .matter received consideration in the case first cited, which contains the view of this court on that subject.

The court drred in modifying the first instruction asked by the accused. .This instruction invoked the doctrine of the right of self-defence on the hypothesis that his assailant was approaching the accused angrily, with a declaration of his purpose to commit a deadly assault upon him. The court so modified it, as in connection with the third instruction for the State to convey the idea that, if the killing occurred when the deceased had no deadly weapon in his hands, it was not justifiable. ,

The accused had no right to kill his adversary because of his declarations or his approach towards him, unless there was something to betoken immediate danger of life or great bodily harm, if he was permitted to continue his approach ; but it is not true, that the right of the accused to shoot depended on his assailant having a deadly weapon in his hand, or even on his person, if the jury believed that the declarations and demonstrations of Ladner were such as to raise a reasonable apprehension in the mind of the accused that Ladner was possessed of .the means to kill him or do him great bodily harm, and was proceeding then to do it.

The assailed is not required to wait until he is in the power of his assailant. The accused was not authorized to kill Ladner because he approached him angrily and threateningly, but, if he did not know he was not armed, and if the conduct of Ladner was such as to indicate his ability to accomplish his •declared purpose, and the accused had good ground to believe, and did believe, he was in immediate danger of great bodily harm then about to be done him, and acting on such belief, in good faith for his own protection only, and not from an evil disposition, killed his assailant, he was justifiable, even though the assailant was not armed.It would be a hard doctrine to hold that the assailant must have in his hands a deadly weapon to justify the assailed from acting for his defence, in this day of improved weapons, which may be drawn and used with fatal effect in a few seconds ; and it would be hnmerciful to deny to the accused the benefit of appearances as presented to him and honestly acted on.

One must not simulate apprehension, nor kill another without just ground to believe himself in imminent danger- of great bodily harm, but of all this the jury is to judge, and, if it thinks the accused confronted, threatened and situated as he was, justly entertained serious apprehension of great personal injury then about to be done him, and acted from such apprehension, and not from any other motive than to protect .himself from such threatened injury, he should be acquitted. One must not kill an'unarmed man who threatens him, if he knows he is not armed, but if he does not know whether he is armed or not, and he threatens and acts as if he was, and thus creates the impression that he is, and the accused believes him to be, and acts on such belief, he should not be held responsible as if he had known the unarmed condition of his assailant, as afterwards discovered. These inquiries should be left to the jury unembarrassed by erroneous instructions.

Judgment reversed, and new trial awarded.