| Miss. | Apr 15, 1883
delivered the opinion of the court.
On the 13th of October, 1881, Alexander Hawley, a youth nineteen years of age, rode down Main Street, in the city of Natchez, in an open wagon, accompanied by a negro man, who sat on.the seat by his side. As he passed the store of one Bahin, Walker and Basil Guice sprang across the pavement and opened tire upon him from the rear or side of the wagon. The first shots did not attract the attention either of himself or of the man riding with him. Two or three shots.had been fired before either of them turned their heads, during which time the wagon was slowly pursuing its course, followed by the defendants, firing as they advanced. When the occupants of the wagon simultaneously looked back and saw that they were being fired on, Hawley rose up, but was immediately pulled down to the floor of the wagon by his companion, who sought thus to preserve his life. One of his assailants, running up to the wagon, placed his pistol over its side and fired into his body. He sprang from the vehicle to the ground, falling upon his hands and knees, and as he struggled
Both of the appellants testified in person, but neither of them questioned the truth of the facts as detailed above. One of them stated that as he stood with his brother in the door of Bahin’s store he observed Hawley sitting in the wagon with his hands resting in his lap ; that as Hawley saw them he put one of his hands quickly to his back or hip, as if to draw a pistol,, when his brother and himself sprang across the pavement and opened fire, believing at the time that Hawley was about to shoot them. This simple statement was his entire testimony, he pausing abruptly without any further account of what followed.
Having made this proof, the defendants proffered much evidence of previous difficulties between themselves and deceased, extending through many months, in all of which Hawley had been the aggressor; of two attempts made by him to assassinate them, and of repeated threats to kill them, continued down to a short time before his own death. This evidence was by the court excluded, and this action of the court is the most important ground of error assigned here.
It is settled law in this State', that proof such as was here offered is always admissible in .evidence, where anything that can fairly be construed as an overt act towards the immediate commission of a dangerous assault can be shown to have been done by the person slain, and that if there be even a doubt as to whether such act was done, evidence such as was here offered should be received. Holley’s Case, 55 Miss. 424" court="Miss." date_filed="1877-10-15" href="https://app.midpage.ai/document/holly-v-state-7985069?utm_source=webapp" opinion_id="7985069">55 Miss. 424; Kendrick’s Case, 54 Miss. 436 ; Spring’s Case, 58 Miss. 743" court="Miss." date_filed="1881-04-15" href="https://app.midpage.ai/document/spivey-v-state-7985573?utm_source=webapp" opinion_id="7985573">58 Miss. 743.
The supposed overt act in this case was the putting of his hand behind him or upon his -hip, by Hawley, and it would certainly be a liberal stretch of the law to concede that it was
Can any such concession be made under the facts here proved by the State, and not controverted by the defendants? If their apprehensions were aroused by the act of the deceased, must they not have been wholly dissipated by his subsequent conduct, and can there be any excuse for saying that they were still laboring under the belief that their own lives were in danger at the time when they so cruelly and barbarously took his? If my most deadly enemy upon meeting me thrusts his hand into his pocket in a manner apparently threatening, and I instantly shoot him, there is some justice in my demand that I shall be allowed to lay before the jury our antecedent relations, with a view of aiding them in arriving at a conclusion as to whether I had reasonable ground to believe myself in danger; but if, removing his hand or holding it still in his pocket, he quickly passes on, can I fire at his back, and, failing to hit him, pursue and butcher him while be is striving to escape ? His act at most has been an equivocal one, and if I respond by killing him, I must at least do so before it has lost its equivocal and threatening aspect. My plea being self-defence, the necessity for defending myself by taking life must be a thing of the present and not of the past. That it has existed is a matter of no moment, if it exists no longer; and while this rule might well be relaxed where the overt act was undoubtedly and unmistakably hostile, as the actual drawing of a deadly weapon, it must be inflexible
In the one case, the abandonment of the design to make a deadly assault might be.feigned or temporary, with a view of instantly renewing it when the antagonist should be off his guard; in the other, jt is demonstrated to the assailant that his original apprehensions were wholly without foundation.
Our conclusion is that the killing in this case clearly, and we might almost say confessedly, took place at a time when the accused were in neither actual nor apparent danger, and after all apprehensions excited by the act of the deceased in placing his hand upon his hip (if any such apprehensions ever jn truth existed, or any such act ever in fact took place) should have' been and must have been dissipated; and inasmuch as no precedent threats or difficulties would under such circumstances have constituted any defence, they were properly excluded by the court.
We notice briefly the other points mainly relied on.
It was not necessary that the record should show how Judge . .Chrisman came to preside in Adams County. We officially take notice of the fact that he is a circuit judge in this State, and when we find him holding a court outside of his district, the legal presumption is that he was so doing in accordance with the statute which permits it.
The course taken by the court below in the examination of jurors upon their voir dire was not improper.' It is optional with the court to allow counsel to propound questions to proffered jurors or to do so itself. Powers v. Pressgrove, 38 Miss. 227" court="Miss." date_filed="1859-10-15" href="https://app.midpage.ai/document/powers-v-presgroves-8257562?utm_source=webapp" opinion_id="8257562">38 Miss. 227.
The court properly excused from service on the jury the man who was judged by it to be drunk, and also those who were already serving upon the grand and petit juries; those on the petit jury being at the time engaged in consultation upon a felony case.
The instructions for the State were correct. The only one which can be regarded as the least quéstionable is the third,
The instructions asked by and refused to the defendants, were properly refused under the facts of the case. Most of them were based upon a theory of the facts and law which is rejected in the former portion of this opinion; others were covered by those given, and still others sought an enunciation of the law as to the crime of manslaughter, and were properly refused, because there was no element of manslaughter in the case. The killing was either murder or justifiable upon the ground of self-defence. There can be no claim of legal heat of passion arising from the act of an enemy in making a supposed hostile demonstration.
If the killing under such circumstances is not justifiable, it certainly is not manslaughter.
Affirmed.