100 So. 383 | Miss. | 1924
delivered the opinion of the court.
The appellant, John Cotton, was indicted and convicted of manslaughter for the killing of Jim Scott. The killing occurred at the residence of Scott. On the evening of the killing Scott had given a party or candy-pulling, and the appellant and others attended the party. It appears that part of the amusement of the evening was a dance. Cotton and another person got into an altercation over the dance in some way. This person left the premises for the purpose, ostensibly, of securing a weapon; but the quarrel was taken, up by a third person, and John Cotton and Homer Cotton and another person engaged in a cursing contest more or less threatening in its verbal appearance at least. The deceased, Scott, according to most of the witnesses, requested them to withdraw from his premises and not to create a disturbance; that if they had a difficulty to leave his premises and settle it. The appellant and his brother refused to obey the request of the deceased to leave the premises. Whereupon the deceased came out and told them that if. they would not hush he would make them hush, according to some witnesses using vile epithets toward the appellant and his brother. They refused to leave, and the deceased started to pick up a scantling or piece of paling or picket, when he was struck by the appellant John Cotton and by Homer Cotton; it being doubtful as to which inflicted the blow which resulted in death. There is no dispute that the deceased requested John Cotton and his brother to leave the premises, and that they refused to do so.
The court instructed for the state that — “Under the law a man has a perfect right to quell a disturbance or
The court also instructed the jury for the state: ‘ ‘ That under the law one who provokes a difficulty and remains the aggressor throughout the same cannot invoke the plea of self-defense. ”
These instructions are complained of as the defendant claims the right of self-defense.
While ordinarily instructions denying the right to self-defense should not be given, still it is the law that a person has the right to preserve the peace at his own home and to evict from his home and premises persons who are creating disturbances upon his premises. It is unquestionably true, under the evidence in this record, that the appellant and his brother were engaged in quarrels at the residence of the deceased on the night he was killed and were requested to leave the premises, and refused to do so, and when the deceased, who owned the premises, undertook to use force to drive him from his premises, struck and killed him in resisting his right to remove them therefrom.
Under the facts in this record, the appellant had no right to defend himself because he was at fault and in the wrong and was resisting the right of the deceased to quell a. disturbance and to remove them from his premises.
It further appears from a special bill of exceptions that a certain witness, a daughter of the deceased, was being examined by the distract attorney and made some statement which the district attorney contended was at variance with her statement to him in the witness room, and said witness was asked if she did not state in the conference room a minute before, and if it was not true that she had stated there, that the defendant hit the deceased while he was stooping over to pick up a stick, and upon the witness, denying such statement, the district attorney
We think that the court did all he was required to do under the circumstances, and when the court sustained the objection and instructed the jury to disregard it and reprimanded the district attorney for the use of such language, he did all the law required him to do in the premises. If, however, further action was necessary, it devolved upon the defendant to request a mistrial to be entered and a new jury impaneled because he could not, after the court had so ruled, proceed with the trial and take the advantages of a possible acquittal and on motion for a new trial seek to set aside the trial when the verdict had gone against him.
The judgment of the court will be affirmed.
Affirmed.