47 Miss. 318 | Miss. | 1872
At the May special term of the Washington county circuit court, 1872, Lewis Harris was indicted, tried and convicted on a charge of murder. A motion for a new trial and in arrest of judgment being overruled, a writ of error was prayed out. The defense in the court below appears to have been conducted with determined energy, and a reversal is strenuously urged here in a labored argument, but the facts and the law are strongly adverse to the accused. The circumstances of the killing, as testified to by several witnesses, were these: Harris, according to some of the witnesses, with a gun on his shoulder, while others say he had it at a ready, sought Barlow, and found him unarmed. A part of the witnesses testify that the two were approaching the same point from opposite directions, but
In the course of the trial the court said, “he had nothing to- do with making the law; that the law, instead, should be the only governing rule; he proposed to administer it as he found it in the books; he was blind to all, save duty; and if the juries of the country chose to1 allow outside matter to influence them in the rendition of their verdicts, that must be settled
The following instructions were given for the state:
“1. To make a homicide justifiable on the ground of self-defense, the danger must be either actual, present and urgent, or the slayer must have reasonable ground to apprehend a design on the part of the deceased to commit a felony, or to do him some great bodily harm, and that there was imminent danger of such design being accomplished, and hence the mere fear by one person that another designed to take his life will not justify the former in taking the life of the latter.
“ 2. Every killing with a deadly weapon is presumed to be malicious, and amounts to murder, until the contrary appears from circumstances of alleviation, excuse or justification, and it is incumbent on the accused to make out such circumstances of excuse, alleviation or justification to the satisfaction of the jury, unless they should arise out of the evidence in the case produced against him or arise out of the whole evidence in the case.
“ 3. To justify the killing of a human being in self-defense, it is necessary for the accused to show, that the danger was actual and imminent at the time of killing, and if the jury believe from the evidence that the accused shot the deceased, and that he was not acting in self-defense, but through mere fear, and was in no imminent danger from deceased, they must find him guilty as charged.
“ 4. If the jury believe from the evidence that the accused killed the deceased as charged in the indictment, they will find him guilty as charged,”
The errors assigned here embrace the rejection of the proposed proof of prior threats (communicated to Harris) of Barlow upon the life of the former, and of a personal difficulty anterior to the homicide; exceptions to the comments of the court, set forth in the bill of exceptions; objections to the instructions for the state; refusal to give two instructions asked; the modification of the one given for the accused; and the overruling of the motion for a new trial.
The homicide in this instance was wanton, brutal, atrocious — indicating a depraved heart and a brutalized
Is it within section 2631 of the Code ? So much of that section as is applicable to this case is as follows: “ The killing of a human being * * shall be justifiable, * * when committed by any person, in resisting any attempt, unlawfully, to kill such person, or to commit any felony upon him, * * or when committed in the lawful defense of such person * * when there shall be reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and there shall be imminent danger of such design being accomplished. * * Plainly, as the reading shows, the killing shall be justifiable- only when
1. That the killing was in resistance to an “ attempt ” on the part of the deceased to kill the slayer, which is not pretended in the case at bar. A prior “threat” is not an “attempt” in law or ethics.
2. Or it must .have been done in self-defense, “ when there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury,” and there shall, also, “ be imminent danger of such design being accomplished;” by which it will be perceived that to render homicide justifiable, under this branch of §2631, Code of 1871, three conditions are necessary: (1) Self-defense, where there is (2) reasonable apprehension of a design to commit a felony or do some great personal injury; and (3) imminent danger of the accomplishment of the design. The popular delusion, to which a few decisions have contributed, that for a threat to take life a party may be pursued and killed, though unarmed, unoffending, and committing no overt acts, cannot be too soon eradicated. It should be known that he who slays another does so at his peril, and takes upon himself the responsibility of satisfying a court and jury that the act was justifiable or excusable homicide, or manslaughter, within the provisions of the code, under which a mere prior threat is not in the one case an “ attempt,” nor in the other “reasonable ground” of apprehension in the absence of “imminent danger,” real or apparent; and lastly, it is wanting in the alleviating circumstances required to constitute manslaughter.
But it is unnecessary to elaborate further. The rejection of the proposed evidence was in consonance with the code, the authorities and reason. Ch. 58, art. 21, Code of 1871; Evans v. the State, 44 Miss. 762 ; Durrah v. the State, ib. 789 ; Head v. the State, 44 ib. 731. In the last - case named, the court say: “ A fear or appre
By section 2628, Code of 1871, “ the killing of a human being, without the authority of law, * * * shall be murder * * * when done with a deliberate design to effect the death of the person killed;” and, “ when done in the commission of an act imminently dangerous to others, and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual;” and this furnishes the basis of the law of the case at bar. With only the threat of the deceased reported to him, the accused armed himself with a deadly weapon, and seeking the former, he found him unarmed, and indisposed to a conflict. Being interrogated, the deceased denied the allegation of threats, and turned away from his opponent, when with a cowardice and brutality almost unparalleled, without the existence of even apparent danger to himself, the accused fired the fatal shot. The plea that the deceased had “ one hand in his pocket,” is the invention of a man with murder in his heart, and at best is only a mockery of an excuse, which cannot save the accused from the just consequences of his illegal and brutal act.
The instructions given for the state are commendable for accuracy, as well as brevity. Those refused for
The “ comments ” .of the court, included in the bill of exceptions, are judged to have been an assertion of the rights, impartiality, and dignity of that tribunal, when assailed, probably through the zeal of counsel, leading to an effort, not unusual, to secure a verdict by a device sometimes successful — an appeal to the jury in direct antagonism with the court. If correctly understood, the “ comments ” were appropriate and unobjectionable, if not commendable, Their insertion in the bill of exceptions is not without precedent; but the necessity or propriety of so doing, in this instance, is not perceptible from the record. Code of 1871, § 644.