220 Miss. 818 | Miss. | 1954
The appellant, John Henry Davis, was convicted of the murder of his 21-year-old son, Frank Davis, and sentenced to life imprisonment. On this appeal he assigns as error (1) that he was refused a directed verdict in his favor, (2) that in any event the trial court should not have submitted to the jury the question of whether the homicide amounted to murder instead of limiting the issue to manslaughter or an accidental killing, and (3) that certain instructions granted the State constituted reversible error as being prejudicial to the defendant.
The proof mi behalf of the State disclosed that the father assaulted the son by striking him at a time when
The proof on behalf of the State further disclosed that the son had married about three weeks prior to the homicide and that he and his wife were living in the home of the appellant and his wife; that the killing occurred on January 10,1953, after the father and son had agreed to make a crop during that year on the farm of Mr. Sedgie Bourn in Jefferson Davis County; that Mr. Bourn had shortly prior thereto advanced some money for the account of the son and the appellant had likewise advanced him the sum of $8.75 or $10.75; that on the night of the homicide the son and his wife had planned to move from the home of the appellant to work elsewhere during that year; that he had just returned from the home of Mr. Bourn where he returned to him the amount of money that had been advanced, and upon returning that night to the home of his father the latter had become advised that the son and his wife were then preparing to move their personal effects from his house on that night to some other place of abode and the father demanded that his son pay him the amount due before he left; that the son explained that he didn’t have enough money to pay both Mr. Bourn and his father but promised to pay to his father what he owed him as soon as he could, and the father then demanded that the son leave his Sunday clothes at the home of his father until he raised the money and returned and paid the father what he owed him; that during the quarrel about this money matter the father slapped his son with one hand and cut him on the back of his neck with the knife, making only a superficial wound; and that they then clenched and fell to the floor with the son on top of his father, and when the son got up he had been fatally stabbed in the left breast with the
The appellant and his wife testified that their son called his father “a liar” and also a “black son-of-a-bitch” before the latter is alleged to have slapped and cut his son.
None of the three State witnesses who were present when the altercation started had heard either of these epithets uttered by the son. They denied that any cursing was done, and testified that the father and son were merely arguing prior to the altercation, and that the son had displayed no weapon or attempted to molest his father. The defendant further contended that when he and his son clenched, and while his son was throwing him to the floor, they fell over a “crippled” chair and that the son fell on the open knife then being held in the hand of the father and got cut in the left breast as a result thereof.
The sheriff testified that the appellant’s wife had stated to him that she was in the kitchen when the cutting occurred in the living room, contrary to her testimony at the trial. The officers also identified a written statement of the accused, which was introduced in evidence, and in which the accused stated, among other things, that “I intended to cut him (Frank Davis), but did not intend to kill him.” Although the defendant claimed at the trial that his son Frank Davis fell on the knife and was accidentally, instead of intentionally, cut, there was evidence introduced on behalf of the defendant as to two previous altercations between him and his son, and wherein his son was alleged to have been the aggressor and got the best of the encounters. Such proof would throw some light on who was the aggressor, and as to the existence of real or apparent danger, under a plea of self-defense, and instructions were obtained both on behalf of the State
The first of these instructions reads as follows: “The court instructs the jury for the State that if you believe from the testimony in this case, beyond a reasonable doubt, that on or about the 10th day of January, 1953, in Jefferson Davis County, Mississippi, the defendant and the deceased, in the defendant’s residence, had an argument about money matters, and that the defendant then willfully, unlawfully, and feloniously struck and cut the deceased, Frank Davis, or willfully, unlawfully, and feloniously grabbed hold of or bear-hugged the deceased at a time when the said defendant, John Henry Davis, had a knife in his hand and at a time when the deceased was making no overt act towards the defendant and if you further believe beyond a reasonable doubt from the evidence in this case that the defendant willfully, unlawfully, and feloniously struck or cut the deceased, or grabbed hold of him or bear-hugged him, in the manner as aforesaid without authority of law, and not in necessary self-defense, and that the defendant thereby unlawfully and feloniously caused the deceased to fall onto a knife that was in the defendant’s hand at said time and thereby stab or wound the deceased in his left breast, and that the said deceased died as a result thereof, then you should find the defendant guilty as charged in the indictment, and the form of your verdict should be, ‘We, the jury, find the defendant guilty as charged in the indictment.’ ”
However, the more serious defect appearing in this instruction is the fact that it authorized the jury to convict the defendant of murder if they believed from the evidence beyond every reasonable doubt that he either willfully, unlawfully and feloniously struck or cut the deceased “or grabbed hold of him or bear-hugged him, in the manner as aforesaid (that is to say while the accused had a knife in his hand and at a time when the deceased was making no overt act towards the defendant) without authority of law, and not in necessary self-defense, and * * * caused the deceased to fall onto a knife that was in the defendant’s hand at said time and thereby stab or wound the deceased in his left breast, and that said deceased died as a result thereof,” the jury should return the following verdict, “We, the jury, find the defendant guilty as charged in the indictment.”
In our opinion the language above quoted had the effect of peremptorily instructing the jury that if it be
The second instruction complained of reads as follows: “The court instructs the jury for the State that the law tolerates no excuse and accounts no justification for the taking of human life upon the plea of self-defense, unless it be reasonably necessary to save the slayer’s life, .or to save him from great bodily harm at the very instant of the fatal cutting or stabbing. And in this case, if you
It ivas error to use in the instruction the words “at the very instant of the fatal cutting or stabbing.” This instruction was condemned and held to be harmful to the accused in the cases of Irby v. State, 186 Miss. 161, 185 So. 812; Vance v. State, 182 Miss. 840, 183 So. 280, and the previous decisions of this Court cited in the Vance case. In the Irby and Vance cases, supra, the objection was that the instruction required the jury to believe that the defendant must believe himself to be in danger of losing his life or suffering great bodily harm “at the very time” of the killing. Whereas the words objected to in the instruction in the instant case restricts the right of self-defense to a greater extent by requiring the defendant to act upon a belief of either real or apparent danger “at the very instant” of the fatal blow.
It is true that in the case of Woods v. State, 183 Miss. 135, 184 So. 311, this Court declined to reverse the conviction because of the use of a similar instruction by the State and pointed out in an opinion on the suggestion of error that while the Court had held such an instruction to be harmful in the Vance case, the reversal of that case was based primarily upon another instruction therein discussed. And further that the instruction was held to be harmful on the basis of all of the evidence as to what occurred in Vance’s store during the difficulty with the officer whom he killed.
Therefore, it seems that there may be cases based on such facts and circumstances as not to justify a reversal of a conviction on the sole ground of the giving of an
We regret the necessity of having to order a new trial but we are left no other alternative in the case at bar.
Reversed and remanded.