68 Miss. 208 | Miss. | 1890
delivered the opinion of the court.
The court reverses this case on instructions given to the jury, on
But it is necessary to refer to some proof made or wanting in' the case, in order to show the application of certain instructions given or refused. Near the place where voting was in progress, James Lanier put his hand on the shoulder of deceased, who was a candidate for county supervisor, and said, “We will send you up Salt river in a boat,” or words of similar import, importing that he and those voting with him would defeat W. H. Brabston, whereupon Brabston pushed or knocked Lanier (who had a walking cane in his hand) down, and drew a pistol. Lanier rose, and Brabston fired at him, but a by-stander knocked the pistol up. That pistol-shot scattered the crowd, and produced a pistol conflict in which the accused, the deceased, and others participated. On the evidence it is controverted whether W. H. Brabston fired first at the accused, or the accused first at him; also whether the second fire of W. fi. Brabston was at the accused or at Lanier, and whether that fire was before or after the first fire of the accused. Whichever way these things were, they produced a duel between the two, with some participation by some of their respective partisans. The duel was kept up until both fell, the accused firing while retiring to a post, the deceased firing while following. At the post the conflict ended. No conspiracy, no premeditated co-operation, no premeditated purpose of conflict, was proved against either party.
By the sixth instruction for the state the court said to the jury that if on the evidence they believed beyond reasonable doubt that defendant fired the- shot that killed W. H. Brabston, then, before they can acquit defendant, it must appear that he, defendant, was first attacked by deceased, or that he reasonably believed at the time that his life or limbs were in great danger of great harm at the hands of W. H. Brabston; or it must appear in' evidence that accused shot, not of malice or ill-will against deceased, but because it was necessary to save the life of Lanier feloniously attacked by W. H. Brabston, and that Lanier had given no provocation for such an attack, but was engaged in lawful business. Of that instruction only the last alternative (the defense of Lanier) has reference to the statutory discrimination applicable in this case between manslaughter and justifiable homicide, before quoted, and the instruction does not define what in law would constitute a felonious attack by W. H. Brabston, but puts his justification for his assailment of Lanier with a pistol on any provocation by Lanier, real or imagined, by W. H. Brabston, or rather on the provocation in this case, which was putting his hand on W. H. Brabston’s shoulder and saying, while the election was in progress, “ We are going to send you in a boat up Salt river.”
The seventh and eighth instructions for the state are equally imperfect, unsatisfactory and undiscriminating. All three pass by the fact that W. H. Brabston commenced the mortal combat by the use of a pistol against Lanier, having a walking-cane but otherwise unarmed, and they assert justification of W. H. Brabston only because of Lanier’s said act and words. The defendant met these instructions by asking his twenty-fourth and twenty-fifth instructions. The twenty-fourth is : “ If the jury believe from the evidence that the deceased was making a deadly assault on Lanier, and that defendant had reasonable ground to apprehend that deceased designed to kill him, or do him great personal injury, and that there was imminent danger of such design being accomplished,
Another important question is raised by the ninth and tenth instructions for the state. The ninth develops it thus: “ If the jury believe from the evidence that the defendant voluntarily brought on a difficulty or shooting with deceased, and thereby caused other persons to take part in the unlawful affray in which deceased was killed, the defendant was guilty of murder, although he may not have fired the fatal shot:” The tenth adds: “ If the jury believe from the evidence that the deceased and Lanier were mutually engaged in an unlawful combat, and that the defendant, not being in real or apparent danger as to his life or person at the hands of either of the combatants, voluntarily took part in the combat with a deadly weapon, and believe that the defendant
The testimony offered by defendant to prove what he said at the house of Mrs. Goff was, Ave think, properly ruled out. As to the evidence offered by defendant to prove his whole statement at the pavilion immediately after the fight ended, which was ruled out by the court, if the matter sought to be proved was part of the same conversation stated by a witness for the state, defendant was entitled to bring out the whole statement by other Avitnesses, if necessary, or if as to that the witnesses for the defense differed from those of the state, he was entitled to the counter-testimony, in order that the jury might consider and weigh the testimony of both ; and he was entitled to this at the time it Avas offered, because the state introduced no-part of that statement until after defendant had closed his testimony in defense and rested. The evidence that defendant offered, relative to the pistol picked up near the place where the conflict ended, should have been admitted. That pistol, and the state’s evidénce relative to it, was not in the case before the jury until after the defendant had closed his proof and rested; and, when offered, defendant objected, but the court overruled him. He Avas then entitled to rebut these by proof.
Reversed and remanded.
HoN. Tih E, Coopee, one of the judges of the supreme court, being disqualified to sit in this case by reason of relationship by affinity to appellant, Mr. David Shelton, a member of the bar, was selected by agreement of counsel, under the constitution, to preside in place of Judge Cooper.