55 Miss. 403 | Miss. | 1877
delivered the opinion of the court.
The clerical mistakes in the copy of the indictment and
There was no error in rejecting, as incompetent, William. Beeves, a member of the special venire, who stated that he had conscientious scruples against capital punishment. Russell v. The State, 53 Miss.
There was no error in summoning by-standers to complete the jury, after the exhaustion of the special venire, there being no regular venire for the week nor talesmen.
There is no error in the third and sixth instructions given for the state. The third omits the words “ with a deadly weapon.” If it be conceded that this omission was erroneous, it is abundantly cured bjr a number of the others.
The tenth instruction asked for defendant was correct, but its refusal constitutes no error, because the substance of it is contained in several others granted, particularly in defendant’s sixth.
Defendant’s thirteenth instruction was properly refused, because not applicable to the facts. So much of it as was applicable was embraced in defendant’s fourteenth instruction.
There was error in granting the eleventh instruction for the state.
By it the jury were informed that the assault which a man may kill his antagonist in resisting “must be an assault within striking distance ; ” and, further, that if they believed that, “at the time of the shooting, the deceased was not in striking distance of FortenbexTy, by axxy weapoxi shown to be in his hand, they must find the accused guilty of murder.”
This is erroneous under the facts of this case. The statute dechxres homicide justifiable “when there shall be reasonable ground to apprehend a’ dcsigxi to commit a felony or do soxne great personal injury, and there shall be imminent danger of such design beixxg accomplished.”
The reasonable appearance of danger must be imminent — that is to say, there must be a reasonable apprehension, from soxne overt demonstration, that the danger is thexx axxd there
The deceased, according to defendant’s witnesses, was rapidly advancing with a drawn knife, in a threatening and hostile manner, upon defendant, who was'armed with a gun. He would not have arrived within striking distance with his knife until he had come within arm’s length. Then, defendant’s gun would have been comparatively useless, and the knife of deceased, most deadly'. A man assaulted, or about to be assaulted, with a deadly weapon is not bound to wait until .his antagonist gets upon equal, much less upon superior, terms. He may rightfully use the advantage which his own innocence and his assailant’s rashness have given him.
It is impossible to say that this charge worked no prejudice to the defendant.
In this class of cases we cannot hold that the jury were not misled by an erroneous-charge, if there is any possible view of the testimony which would warrant a verdict of acquittal. In other words, we could only affirm a verdict of conviction, despite erroneous charges, where, conceding all the testimony of defendant to be true, the verdict was, nevertheless, manifestly correct. We cannot say that this is the case here. Whatever opinion we may entertain with regard to the testimony of defendant’s wife and daughter, we are bound to treat it as true in the consideration of this charge.
According to their statements, deceased had grossly insulted defendant and his wife in their own house. - He had drawn his knife upon defendant, rubbed his clenched hand against his face, and in eveiy way possible attempted to provoke a fight, which defendant declined. Leaving the house, he continued his abusive language. When at length defendant, who remained standing on his porch, returned one of the abusive epithets, deceased started back towards him, with his knife still drawn, declaring that he would not stand it; and, despite the