Canterbury v. State

43 So. 678 | Miss. | 1907

Lead Opinion

Mayes, J.,

delivered the opinion of the court.

There are nineteen assignments of error in this case, but few of them are pressed seriously. We have carefully considered them all, and concur that none of them is well taken, except that our Brother Caliioon maintains that the first instruction for the state is erroneous, and that the modification of the twelfth instruction for the defense is erroneous, and that the second instruction for the state is erroneous. With the exceptions indicated in the dissent of our brother, we all concur that no one of the other assignments of error is well taken.

Concerning the contention that the indictment should charge the specific weapon with which the assault and battery was committed, and that it is not sufficient to charge that it was committed with a deadly weapon, we merely observe, first, that we have examined carefully all the authorities cited by the learned counsel for appellants, and find that they do not sustain the contention; and, second, that any fair reading of this testimony, taken as a whole, shows that the knives used were pocketknives. See 1 Wharton’s Criminal Law, p. 602; Hull v. State, 79 Ala., 32; 1 Bishop on Criminal Procedure, sec. 488; Porter v. State, 57 Miss., 300.

The case made by the facts in this record is briefly as follows: Sam ILarrison had been operated upon for appendicitis and was in an enfeebled condition. A brother of Harrison had killed a brother of the Canterbury boys. So far as this record is concerned, it does not appear that Sam Harrison had any connection with that killing. This difficulty occurred on Sunday at a church meeting. Harrison and Luckey were under a tree, some little distance away, preparing to eat dinner. Abel Canterbury during the morning had been grimacing at Harrison and frowning at him wherever he chanced to see him. Abel and Crosby walked up to where Harrison and Luckey were sitting, and Crosby exchanged greetings with Harrison and Luckey. Harrison did not speak to Abel Canterbury, but Abel Canterbury insisted that he had done so. Harrison kept insisting that he had not spoken to him, and. that he did not want to have any trouble with him. Abel Canterbury pulled off his coat and said he was the best man on the grounds. Old man Canterbury got in between them, and tried to keep them apart; but Abel kept coming closer and closer, and finally he and Harrison got together. Harrison struck Abel Canterbury over old man Canterbury’s shoulder, according to the testimony of the defense, and old man Canterbury struck Harrison in the back. Both of these blows, apparently, seem to have been with knives. Abel Canterbury rushed off and snatched a knife from some one on the grounds, and turned and made for Harrison, who, having cut old man Canterbury, undertook to run away. This is the first stage of the difficulty. It is obvious that the difficulty was brought on by Abel Canterbury, and that Harrison was in no manner to blame for its commencement. After Harrison fled, all three of the Canterburys pursued him with knives in their hands, Harrison retaining his knife. Old man Canterbury was so badly wounded that he stopped, the two appellants still pursuing Harrison with drawn knives. They chased him for about fifty yards. At the corner of the schoolhouse Bud Canterbury and Harrison exchanged licks, Bud Canterbury stabbing him in the shoulder, and Harrison cutting his collar. Harrison kept up his flight around the house, and finally stumbled and fell to the ground, and both' the appellants fell on, him. They both got on him and stabbed him many times, or, as one witness expresses it, “for all they were worth.” In this condition, Harrison lying on the ground and both the appellants sitting on him, stabbing him, Abel Canterbury’s sister got hold of his arm, trying to stop the trouble. He jerked himself free of her, when a Mr. Curry came up and with a stick which he had in his hand prevented Abel Canterbury from further stabbing, by interposing his stick between the blow and the body. Whereupon Abel Canterbury threatened him by saying that if he did not stop interfering with him he would cut him, and it was only upon the arrival of several other men, who took charge of Abel Canterbury, that he could be pulled off the prostrate man. Bud Canterbury, also, had to be taken off by force by several parties. This is this case, as plainly made' out by. the testimony for the state in this record. It is further to be observed that the district attorney, with commendable fairness, put on the stand nearly all the eyewitnesses who saw the whole transaction. The witnesses for the defense are composed partly of relatives of the appellants, but mostly of those who did not see the entire difficulty, but mainly what took place at the wagon between John Canterbury (the old gentleman), Abel Canterbury, and Harrison. The motive impelling Abel Canterbury seems to have been the difficulty between Harrison’s brother and his brother.

On this ease it is impossible to doubt that the defendants intended to kill and murder. The contention that these two appellants did not intend to kill and murder Harrison, when the testimony shows that they chased him for fifty yards with drawn knives, falling upon him when he had fallen to the ground in k helpless condition; stabbing him with their knives, and stopping only after the most strenuous effort; threatening those who sought to draw them off — but were acting in self-defense and had the right to pursue a man fleeing for his life in order to save their own lives, is one, to put it mildly, that utterly fails to commend itself to our minds. Was it necessary to the preservation of the lives of these two appellants, or to save them froin any great bodily harpa, that they should chase a man in full flight for fifty yards, and then pounce upon him while he was down and helpless ? It is impossible for us to conceive how any serious contention can be made that these two appellants could, in any imaginable way, have been in danger from Harrison, while he was in full flight, of death or great bodily harm. On this ktate of the case the court gave instruction number one for the state, set out in the dissenting opinion, which we think states the case precisely as it ought to have been stated, announcing the law applicable to the facts with absolute correctness. The testimony abundantly shows that ITarrison had abandoned the difficulty and was fleeing for his life, and was then pursued by the appellants, fallen upon, and stabbed whilst he was on the ground, when neither of the defendants could have been in the slightest danger of death or great bodily harm at his hands.

The twelfth instruction for the defendant is as follows: “The jury are instructed, for the defendants, as a matter of law, that if they believed, and had reasonable cause to believe, that Sam ITarrison had sought them out for the purpose of killing them, or of doing them great bodily harm, and that Sam Harrison was prepared therefor with deadly weapons, and that Sam Harrison made demonstrations manifesting an intention to commence an attack, then the defendants or defendant so threatened were not required to retreat; but they had the right, under the law, to stand and defend themselves, and to pursue and if in so doing it was necessary, or upon reasonable grounds Sam Harrison until they had secured themselves from danger, it appeared to he necessary, to commit an assault and battery with intent to kill Sam Harrison, their acts are excusable upon the grounds of self-defense, and if the jury so believe from the evidence they must find the defendants not guilty.” This instruction was modified by the court, but not read to the jury. The first observation to be made about this instruction, which was given with the simple modification of striking out the words “and to pursue Sam Harrison,” is that, as asked, it was manifestly erroneous on the case made. There was not a scintilla of evidence in the case to show that “Sam Harrison had sought them out for the purpose of killing them, or of doing them great bodily harm,” or that Sam Harrison “made demonstrations manifesting an intention to commence an attack. Abel Canterbury began the difficulty beyond any controversy, Harrison seeking to avoid trouble, and the instruction as given was manifestly erroneous, for the reason that there was no evidence to sustain it. Being erroneous as asked, for the reason that there was no testimony to support the instruction, the modification did not cure the error, and the instruction as modified should have been refused by the court. This being the case, no error could be predicated on this instruction, because the court modified it and the defendant did not use it, because the instruction was wrong as asked and as modified, and the failure to use an erroneous instruction can never constitute reversible error. We repeat that no evidence can be found in the record to support this charge, and that the only error the court committed was against the state in granting to the defendant, even as modified, an instruction wholly unwarranted by the testimony. The only demonstration Harrison made after the trouble at the wagon was to flee for his life, and if at that time the appellants had stopped, as they ought to have done, being themselves in no manner of danger, there might have been something in their contention that what they did up to that time was done in the heat of passion.

Our dissenting brother earnestly contends that it was the duty of the court to give a charge to the jury that they might find a verdict less than a verdict of assault and battery with intent to kill and murder^ and that there was evidence tending to show that what was done was all done in the heat of passion. We cannot agree with him in this view of the case made by the evidence. As stated, these appellants chased this man fifty yards, fell upon him, and stabbed him when he was down and helpless. It seems to us to be utterly unreasonable to contend that this was in the mere heat of passion, and the jury have so found. As to the insistence that it is the duty of the court to give a charge to the jury that they might find a less verdict than a verdict of assault and battery with intent to kill and murder, the conclusive answer is that in this state the law has absolutely taken from the judge the right to give any charge to the jury in any state of case, unless that charge is requested by the parties to the litigation in writing. The circuit judge is helpless in the matter. The citation from p. 212, vol. 11, Ency. of Pleading and Practice, is good law in those states in which judges are permitted to charge the jury what the law is, as in the English practice and the federal practice; but it has no application in this state under our peculiar statute about instructions.. The law in our state on this subject is set down in terms too plain to be misunderstood. . In the case of Archer v. Sinclair, 49 Miss., 343, Simrall, J., delivering the opinion of the court, said: “The parties have a right to indicate, by written requests, the points upon which they respectfully desire the jury to be informed as to the law. Under our system it would not be proper for the court to instruct sua sponteIt seems perfectly clear, from the course the trial took, that the defense fought this case out below on the issue of self-defense, 'purposely declining to ask instructions suggesting that the defendants might be guilty of something less than that charged; and the state also fought it out on the issue that the appellants were guilty as charged, or not guilty at all. The appellants cannot be permitted to experiment with the courts in this fashion. They will not be allowed intentionally to decline to ask charges presenting to the jury the theory that they might be guilty of an attempt, to kill and slay, growing out of the heat of passion, and not of an attempt to kill and murder, seeking to obtain a clear acquittal on the ground of self-defense in the court below, and then for the first time in this court complain that- the court did not of its own motion give a charge about a lesser offense, which charge they themselves studiously avoided asking. Nothing in the world was easier than for the appellants to have asked such a charge. They did not do it, and the court was by the law prohibited from giving any instructions for the defense except those which they asked in writing. The court cannot be blamed, therefore, for the absence of such a charge in this record, since the appellants, who alone could have asked it, declined to do so.

The only error we deem it necessary to advert to is the assignment that the second charge is erroneous, because it told the jury in the alternative that, if they believe beyond a reasonable doubt that appellants made an assault simply, they might nevertheless be convicted of assault and battery, the indictment charging assault and battery. Viewed as a mere abstract proposition, it undoubtedly is an incorrect statement of the law to say that, where an indictment charges an assault and battery, the jury may convict of assault and battery, although they only believe from the evidence the defendant to be guilty of an assault. But the indictment here charges assault and battery both. The evidence overwhelmingly shows both assault and battery to have been committed by both these appellants, and the error amounts to nothing — could have had no possible influence on the verdict. Nobody contends, except the two appellants themselves, that they did not stab Harrison on the ground after chasing him. It is true both appellants swear positively that neither saw the other stab Harrison while lying on the ground. It is further true — a most astonishing statement — that each swears that he did not see the other on Harrison.

On the whole case, it seems to us, after the most patient consideration, -that the learned circuit judge charged the law with great accuracy, except in charging far too favorably for the defense in the twelfth instruction; that the district, attorney acted with great fairness in putting on the stand all eyewitnesses who saw the whole difficulty; that the verdict is.right, and that no other result could possibly be reached on any reasonable view on another trial; and that the judgment should be, and hereby is AFFIRMED. '

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Dissenting Opinion

Caliioon, J.,

delivered the following dissenting opinion:

In this case there was testimony tending to show self-defense, and much stronger evidence to show that the actions of the accused were in the heat of passion, naturally engendered, without malice aforethought, which would, if Harrison had been killed, have reduced the homicide to manslaughter. There was no instruction for either the state or defense defining either murder or manslaughter.

The court gave only two instructions at the instance of the state. They are as follows: Number One: “The court instructs the jury, for the state, that even though they should believe from the testimony that Sam Harrison was the aggressor, yet if they further believe from the evidence beyond a reasonable doubt that Harrison abandoned the difficulty and began a flight, and if they further believe from the evidence beyond a reasonable doubt that Harrison was pursued by Abel Canterbury and Bud Canterbury, and attacked by them with deadly weapons with intent to kill and murder said Harrison at the time when they, defendants, were in no immediate danger, real or apparent, of loss of life or great bodily harm, they should find the defendants guilty as charged in the indictment.” Number Two: “The court charges the jury, for the state, that if from the evidence they believe beyond a reasonable doubt that defendants, Abel Canterbury and Bud Canterbury, made an assault on Sam Harrison with deadly weapons, or if they made an assault and cut and wounded the said Sam Harrison with deadly weapons, to-wit, pocketknives, with the intent to kill and murder him, the said Sam Harrison, as charged in the indictment, at a time when they, the defendants, were in no immediate danger, real or apparent, of loss of life or of great bodily harm, then.the jury should return a verdict of guilty as charged in the indictment.”

The following instruction was given for the defense, but only as modified by the court, as will appear: Number Twelve: “The jury are instructed, for the defendants, as a matter of. law, that if they believed, and had reasonable cause to believe, that Sam Harrison had sought them out for the purpose of killing them, or of doing them great bodily harm, and that Sam Harrison was prepared therefor with deadly weapons, and that Sam Harrison made demonstrations manifesting an intention to commence an attack, then the defendants or defendant so threatened were not required to retreat; but thev liad the right under the law to stand and defend themselves, and to pursue Sam Harrison until they had secured themselves from danger, and if, in so doing, it was necessary, or upon reasonable grounds it appeared to be necessary, to commit an assault and battery with intent to kill Sam Harrison, their acts are excusable upon the grounds of self-defense, and if the jury so believe from the evidence they must find the defendants not guilty.” This was modified by the court, and not read" to the jury. The modification is that the court erased the words, “and to pursue Sam Harrison.”

It will be observed that instruction Number One for the state fully presents the theory of the prosecution that even if Harrison was the aggressor, still if he abandoned the difficulty, and “was pursued” by the accused with intent to kill and murder him, they should be convicted. Granting that this was correct on this line of thought, it is quite notable that the accused were refused the correlative proposition that they had the right to pursue him if they believed, from his demonstrations, that it was necessary to their security. This refusal to them and agreement to the counter request of the state plainly emasculated the defense of its constitutional right to an impartial trial, and affects seriously the status of all citizens, however innocent, who may be indicted. The right to pursue, when apparently necessary to self-defense, is too thoroughly settled for any sort of disputation, and the right to have the jury so instructed is plain, where there is, as here, testimony in support of it.

In Ency. Pl. & Pr., vol. 11, p. 212, we find this in the text: “If there is evidence tending to reduce the grade of the offense, it is the duty of the court to give in charge the law applicable to that grade of offense, and it makes no difference that the evidence tending to reduce the grade of the offense is very slight, or that the only evidence tending to reduce the offense is the testimony of the defendant himself.” See, also, Id., 215. So far as I know authorities contra cannot be found in the books, English or American. The proposition is vital for the protection of the innocent, as all are primarily presumed to be. The jury, not the court, determine the probative force of what the.witnesses testify. The same volume of the same book, on page 215, says: “An instruction correct in point of law and applicable to the evidence should always be given, no matter how slight the evidence in support of the hypothesis on which the evidence is based. The instruction, if pertinent, should be given, without regard to the weight or preponderance of the evidence.” Mississippi has announced this rule and applied it in civil and criminal cases: Levy v. Gray, 56 Miss., 318; Hursey v. Hassam, 45 Miss., 134; Nichols v. State, 46 Miss., 284; Rivara v. Ins. Co., 62 Miss., 720. It is wholly immaterial what view the court may take of the facts. They are for the sole determination of the jury, and it is of vital importance to the citizen that a jury of his countrymen shall pass on the truth of such facts as are favorable to him, even though he alone testifies to them. No court has ever yet, since the incumbency of Jeffreys, been so autocratic as to deny this salutary rule. The only instances where judicial tribunals have taken charge of testimony and evidence and erroneous instructions occur where the testimony of the defendant himself makes out a case of guilt as charged.

The first, instruction for the state is also fatally defective in excluding any consideration of heat of passion. It tells the jury they “should find the defendants guilty as charged in the indictment” — that is, of assault and battery with intent to kill and murder- — if satisfied beyond reasonable doubt Harrison was pursued and “attacked” by the accused “with deadly weapons with intent to kill and murder” him, etc. “Kill and murder” is strictly a legal phrase, and yet murder is not defined and differentiated from manslaughter in this or any other instruction on either side. Juries are not supposed to be lawyers, or to discriminate between murder and manslaughter. If Harrison had been killed, it is my opinion that the verdict, under' proper instruction, would have been for manslaughter at most.-

The second instruction for the state is flagrantly erroneous, not only because it has the vice of'the first, just noticed, 'but directs conviction of assault and battery with intent to kill and murder, even though defendants were guilty only of an assault with deadly weapons. It cannot be true in' Mississippi that one may be convicted of a battery when he committed an assaúlt only. An assault is an attempt to commit a battery. It is included in a battery; but a battery is not included in an assault. The clauses of Code 1906, § 1043, make separate offenses. Morman v. State, 24 Miss., 54. And, as one may be convicted of only what he did, instructions should be specific. An assault with intent, etc., is not an assault and battery with intent, etc. Montgomery v. State, 85 Miss., 330, 37 South., 835; 1 Wh. Crim. Laws, sec. 640. At no time in any case is a defendant called upon to ask any instruction modifying guilt, or in exculpation. He is at arm’s length. But at all times, in all eases, the state must charge the law, if at all, on that on which it must stand or fall, unless the defense asks some instruction neutralizing any error. In announcing a different rule, or making it incumbent on the defense, under any circumstances, to ask a charge about anything, or under any phase of the case, I submit that there is manifest error in the majority opinion. Defendants need not correct the state’s errors.

The majority opinion is quite full and accurate in stating the case made in the testimony for the state, but is curiously silent as to that delivered on the part of the defense. It does state that: “Nobody contends, except the two appellants themselves, that they did not stab Harrison on the ground after chasing him. It is true both the appellants swear positively that neither saw the other stab Harrison while lying on the ground. It is further true — a most astonishing statement — that each swears that he did not see the other on Harrison.” From my standpoint the statement of the defendants themselves is ample ground for the propositions laid down in this dissenting opinion. There is absolute conflict between the impressions of the majority and my own impressions about the facts in this case. From my understanding, upon a fair review of the evidence, the facts are that Abel Canterbury and Harrison had a misunderstanding; Abel saying that Harrison had spoken to him and Harrison denying it. At this juncture Abel took his coat off, manifestly for a fist fight, and also, manifestly, when Abel was entirely unarmed. Thereupon Harrison started towards Abel, when old man John Canterbury, the father, got .between them in order to prevent conflict. At this time, and for the-first time in this whole controversy, Harrison attempted to rush on Abel with a knife drawn in his hand, and reached over old man John Canterbury’s shoulder, stabbed Abel in the arm, and then attempted to cut old man Canterbury’s throat, and did make such a tremendous and long gash from near the temple down into the throat that the bystanders thought the old man was killed, and the outcry was from the crowd that “Sam Harrison has cut old man Canterbury’s head off.” It is thus baldly manifest that Sam Harrison v'as the aggressor with a deadly wmapon, and that, if he had then slain either old man Canterbury or his son Abel, it would have been a glaring case of murder.

It will be noted here that the indictment is a joint indictment against old man Canterbury and both of his' sons, Abel Canterbury and Bud Canterbury. The district attorney, of course, very properly caused a verdict of not guilty to be entered in favor of John Canterbury, the old man. It is also absolutely certain that Bud Canterbury was not present at that time. It appears from the testimony for the defense, and I think cannot be successfully disputed, that Bud Canterbury, hearing the outcry that his father had been killed, started to go to him, Avhen he met Sam Harrison, who endeavored to kill him and cut his clothing as he passed him, and thereupon Bud Canterbury started in pursuit, and, without concert, he and Abel were equally in pursuit. It is also true by the testimony of the defense that, while Sam Harrison was running off, it may be running to make his escape under the impression, which he might well have had, that he had killed old man Canterbury, he had his hand as if on a pistol threatening his pursuers, which, 'if true, warranted the pursuit. It is also certain that Sam Harrison stumbled and fell, and that his two pursuers fell on him; but both swear that they did not cut while he was down. Bud had struck him a blow with a knife after Harrison had struck him. While it may be perfectly obvious, as the majority opinion indicates, that it is too plain that the difficulty was brought on by Abel Canterbury, this can only be true on the basis that Abel was taking his coat off for a fist fight, which at no period of the quarrel'warranted Harrison in assaulting him and his father with a deadly weapon. Besides this, the postulate of the majority opinion is not sustained that old man Canterbury pursued Harrison with a knife. The only mine from which this can be drawn is the testimony for the state, which I regard as overthrown, and certainly it is overthrown by the verdict of not guilty as to the old man. It is true that Bud Canterbury, who was never at the scene where his father was cut nearly to death, did stab Harrison as he met him; Harrison first cutting at him.

But all this matter of testimony pro and con can only properly be considered in determining the propriety of the action of the court in charging the law. It is true that, where the defense itself makes out a case of guilt, errors in instructions need not be noticed. It is also true that where there are instructions on both sides, and there is technical error in an instruction given for the state, the court will not notice the error, where, taken as a whole, it plainly appears that the jury could not have been misled; but those are not this case, and I stand on the proposition that wherever Anglo-Saxons live, a defendant has the right, even upon his own testimony alone, to have an instruction given based upon his testimony, so that the jury may finally determine the facts. I also stand on the proposition that it is improper, and a reversible error, for any court, particularly in a case like that before us, to charge the jury that if they believe only an assault was made with intent to kill and murder, without defining what murder means, they should convict of assault and battery with intent to kill and murder. When we depart from these basic principles, the rights of men are tossed about by the caprices of courts, and we are at large on an anchorless ocean, with no haven landlocked by the everlasting principles of law. On one announcement of the majority opinion I am reminded and my attention is called to the fact that the twelfth instruction asked by the defendant and modified by the court was not used before the jury. I say further on this point that there was ample testimony that Sam Harrison did seek out Abel Canterbury to kill him, and did in fact try to kill him, and did in fact also try to kill old man Canterbury. True it is that Abel Canterbury made the first warlike demonstration, in that he commenced to pull his coat off, which was no more than an invitation to a fisticuff fight. But it is plain that thereupon Harrison did advance on him to kill him, and, while his father had backed him up against a wagon, Harrison rushed in, reached over the father’s shoulder, stabbed Abel, and then cut the old man’s throat. Under this state of facts it is idle to discuss the question that Abel Canterbury could possibly have been guilty of no more than manslaughter, at the most, if he had run after and killed Harrison. There was no cooling time under any view of the law or of human action.

I deny utterly that there is any distinction whatever in the granting or refusal of instructions between our system of asking written instructions and the English system of oral charges. It is true that neither side need ask an instruction; but, whenever one is asked, it must be a proper instruction, and, if not proper, it must be refused or modified to cover the case. This principle is repeatedly announced in adjudications of our own court from the date of its territorial, government up to this time; and let it be noted that the .principle is derived from the common law, and is as old as the common law itself, and has never been deviated from in any case in my knowledge, except that now in hand. The majority opinion agrees with my view that, as an abstract proposition, it is not proper to convict of an assault and battery where only an assault is charged and proved.; but the majority opinion says that the indictment charges both assault and battery here, and the evidence overwhelmingly shows both assault and battery to have been committed, and that therefore the error amounts to nothing. I say that it is for the jury to determine whether or not there was an assault and battery by the two Canterburys, and that it is exceedingly dangerous for courts to be assuming the prerogative of the jury. I have an abiding faith that there was error, and, whether these men be guilty or innocent, it is equally important for the courts to so declare. Courts sentence. The jury only can convict a freeman, and then only on the law properly charged, if charged at all.