105 So. 514 | Miss. | 1925
On Monday before the killing on Tuesday afternoon the deceased went to the appellant's place and stated that he desired the appellant and his wife to begin picking *273 cotton; it being in the month of August and at the beginning of the cotton picking season. The deceased stated that he expected to give a prize to the tenant who got out the first bale of cotton. Appellant stated to the deceased that it had rained, and the cotton was wet, but deceased insisted that the cotton be picked. On Tuesday morning the deceased came to appellant's house and insisted that they get out and go to picking cotton, threatening to kick the appellant all over the place if he did not do so. Appellant and his wife did go to the cotton field and began picking cotton. Some time during the day Johnson came into the field, but appellant secreted himself in a thicket, and Johnson did not find him. Later in the day the deceased passed the place in sight of where Carter and his wife were picking cotton, but did not stop, appearing to be satisfied with their work. Late in the evening a shower of rain came down, and appellant and his wife went into their house and carried the cotton they had picked into a cotton house near their residence. The deceased came along, stopped, and went to the cotton house, looked in, turned and walked to the house of appellant and entered it; the door being partly open at the time of his entrance, and almost instantly a shot was fired which killed the deceased.
At the time deceased entered the house there were four negroes on the gallery of appellant's house, one of them engaged in cutting the hair of another. Two of those witnesses testified that appellant got out of a car, went to the cotton house, looked in it, turned, and walked to the dwelling house of appellant, walked upon the gallery and on into the house, and that nothing was said by any one; that deceased had a pistol on him, but it was in a scabbard, and that he did not have his hands on the pistol but his hands were hanging down by his side; that the pistol was on his left side, with the handle facing the front of his body. Two other witnesses testified that deceased came up on the gallery and walked into appellant's house with his right hand upon the handle of the *274 pistol, but that nothing was said by him to any one, and that almost immediately when he entered the house a shot was fired, when all of the parties on the gallery ran out. One of the witnesses testified that, after he ran a short distance, he looked back and saw appellant leaving the house armed with a rifle. These negroes ran to the premises of a white man nearby and related what had happened. Three white men thereupon went to the house and entered it.
The first one to enter testified that the deceased was lying with his feet toward the door and his head near the fireplace; that his pistol was almost out of the scabbard; that his left hand was on or near the pistol and the right hand was extended out from the body. It was further testified that deceased was shot through the neck, the jugular vein severed, and his neck broken; the bullet making its exit just below the shoulder line. The testimony of this witness was corroborated by the other two white men, except that they did not see the position of the pistol and of the left hand of the deceased; the first man to enter having picked up the pistol.
The appellant left his home, and was arrested some six days after the killing in a neighboring county. No one was in the house at the time of the shooting except the appellant and the deceased. The pistol was not discharged. The appellant testified and said that when the deceased came into the house he was standing on the opposite side of the chimney with a bucket in his hand, preparing to eat some milk and bread, that he had not had his dinner and was fixing to eat it, and that deceased said, "Now, I have got you," and that deceased drew his pistol with his right hand and presented it in shooting position; that, when deceased spoke the words and started to draw his pistol, appellant reached for his Winchester rifle in a corner nearby and fired as quickly as possible, believing his life was in danger; that he shot in self-defense; that he left home for fear he might be mobbed or lynched; that he tried to get word to the sheriff to *275 know if he could get protection and a fair trial; that finally he got assurance from the sheriff through a friend or relative; and that he gave up to the sheriff. Appellant testified that on the night of the killing he went to the village of Hamburg, where he had formerly lived. On cross-examination he was asked if there was not a justice of the peace there who would give him protection and treat him right, and he replied that there was, but he did not think about a justice of the peace; that he did not stop in the place and did not talk with any one there; that he had an opportunity in that place to take a freight car and escape had he desired to do so.
It is first complained that the instructions for the state read, "If the jury believe beyond a reasonable doubt from the evidence in this case," etc., whereas the instructions should have read, "If the jury believe beyond a reasonable doubt from the evidence or want of evidence in this case," etc., was error, because doubt might arise on the want of proper evidence or the want of sufficient evidence to justify a conviction. While the doubt may arise from the want of evidence, we think the instructions given gave the jury the necessary information as to reasonable doubt. The law was clearly and fully given on every feature of the case, including apparent danger, and it was not reversible error to word the instructions for the state as they were worded in the particular complained of.
It is also insisted that the court erred in refusing an instruction for the defendant to the effect that partial variances in the testimony of different witnesses on minute and collateral points are of little importance, unless they be of too prominent and striking a nature to be ascribed to mere inadvertence, inattention, or defect of memory; that it so rarely happens that witnesses of the same transaction perfectly and entirely agree on all points connected with it; that an entire and complete coincidence in every particular, so far from strengthening their credit, not infrequently engenders a suspicion of practice and concert; and that, in determining upon *276 the credence to be given the testimony by the jury, the real question must always be whether the points of variance and discrepancy be of so strong and decisive a nature as to render it impossible or at least difficult to attribute them to the ordinary sources of such variances — that is, inattention or want of memory. It was not error to refuse this instruction. It was argumentative in its nature, and, as stated above, the law given fully defines the defendant's rights upon all points.
It is also complained that the court erred in refusing an instruction for the defendant that a landlord has no right to invade the premises of his tenant against the wishes and will of the tenant, and has no right under any circumstances to enter the dwelling house of the tenant, armed with a deadly weapon for any purpose hostile to the tenant. There is no evidence that the deceased had been warned or forbidden to enter the premises of appellant, or that it was against the will of the tenant for him to come into the house.
It is also insisted that the court erred in refusing an instruction to the jury for the defendant that the killing of a human being by act of another is justifiable when committed by any person in resisting any attempt unlawfully to kill such person or to commit any felony upon him or upon or in any dwelling house in which such person shall be. The right of the defendant to defend himself was charged to the jury favorably to the defendant. The evidence does not show a commission of a felony in or upon the dwelling house, and it is not suggested that the deceased was attempting any felony in or upon such house. The hostile intent, if any at all, was to the defendant himself, and the jury were fully informed of the defendant's right to act in his own defense.
It is also insisted that the court erred in refusing to instruct the jury for the defendant that it is their sworn duty under the law to try to reconcile all the evidence consistent with the innocence of the defendant, and to acquit him if they reasonably can under all the evidence *277 introduced. The substance of this instruction was granted in other instructions to the defendant, but the instruction itself is not accurately phrased and might be misleading. The jury should weigh all the evidence in a case together, and not merely that which is consistent with the theory of innocence of the defendant. Such evidence is also to be considered and weighed with that evidence which is inconsistent with the theory of innocence, and the jury should act upon the whole evidence and not merely single out such of it as is consistent with the theory of innocence.
It is also insisted that the court erred in refusing an instruction to the jury that a man has a right to defend his house and family and to protect it and them against unlawful acts and injury by another. This instruction was properly refused, because there is no proof suggesting any hostile intent or danger to any member of defendant's family or home other than himself, and, as stated above, the court fully instructed the jury in the right of self-defense, including the right to act upon apparent danger. An instruction must be applicable to the evidence in the case or some part of it.
It is also insisted that it was error for the district attorney to make certain remarks in his argument. It appears that the district attorney stated, referring to the deceased, "He did not know Ed Carter was concealed in the house with a gun." Upon objection being made, the court said, "it is a matter of argument." Carter was in the house with the gun. Whether the deceased knew he was in there, or did not know of his being in there, and of his having the gun in there, is a matter of inference to be drawn from the circumstances. It was evident that deceased expected to find Carter in the house, but what his purpose was, or what he knew about Carter being in there and what he had, is a matter of inference merely. At any rate it is not sufficient to cause a reversal of the case. Second, that the district attorney said, "It is no offense to carry a pistol or gun in a scabbard and *278 is not unlawful." What prejudice this statement could have on the case is not apparent. It is an expression of a legal opinion by the district attorney, but how it could harm the appellant is not apparent. It is next insisted that the district attorney said, "If you don't believe all she said [referring to appellant's wife] you have a right to disbelieve all; if you don't believe a part, you can disbelieve all." It was for the jury to decide whether they would believe all that the witness said and if she were worthy of credit. The jury was not authorized, of course, to disregard all of the testimony of the witness for the sole reason that they did not believe a part of it. To authorize them to disregard all of it because a part is false requires a belief that the falsity was knowingly and corruptly testified to. The statement is not elaborate enough or full enough for us to know its full effect. It is not permissible to single out sentences disconnected with the context, and, where objection is taken to statements, enough of the context ought to be embraced in the bill of exceptions to enable the court to know what a fair construction of the statement would mean.
It is also insisted that the district attorney committed error in stating that, "He [Ed Carter] knew Mr. Calcote, and you know how Mr. Calcote will take care of a darky." We see no merit in this objection.
It is urged that the evidence is insufficient to sustain a conviction, that the appellant's testimony as to how the killing occurred makes a justifiable killing, and that there is no contradiction of such testimony, or, at least, insufficient contradiction, to warrant a jury in finding manslaughter. It is true that the appellant is the only eyewitness, but his statement as to the declaration made by the deceased is contradicted by others who were in a position to hear the remark made, if it was made. It is also admitted that the appellant fled after the killing. This flight is always admissible in evidence as a circumstance tending to show guilt, and the jury may infer guilt from flight. It is true the appellant explained the *279 reason of his flight, and it is for the jury to say, taking all the facts and circumstances together, whether his explanation is reasonable and true or not. It was not a case of going to an officer or surrendering to the first available officer, because he did not give himself up as speedily as he might had he desired merely to reach a place of safety and official protection. It appears that the jury might well believe that appellant fired the shot before he was in any danger, and that the circumstances were not such as to cause a reasonable man to believe that his life was in imminent peril.
We find no sufficient grounds for reversal of the judgment of conviction, and the judgment will be affirmed.
Affirmed.