72 Miss. 99 | Miss. | 1894
delivered the opinion of the court.
Dr. Irby testifies that the deceased ‘' could have been shot from the side, the way the bullet went in.” Harris testified
The testimony for the state might well have warranted the jury in finding a verdict of murder, if that had be enaccepted and the testimony as to threats admitted, and instructions giving the appellants the benefit of a submission of their theory of self-defense to the jury had been given. But the court refused the instructions presenting this theory, and shut out all evidence as to threats. We cannot weigh the testimony offered in the light of the charges refused, or the testimony detailed above in the light of these charges, supposing them to have been given. It was for the jury to say, with this testimony in, and these instructions given, what credit they would give defendants’ witnesses and theory. Unless we are clearly satisfied that in no reasonably possible view was there any testimony supporting-defendants’ theory offered or admitted in evidence, we cannot say the instructions were properly refused, or the threats properly excluded. After careful consideration, we are not thus clearly satisfied, looking especially to the testimony of Dr. Irby. The wound itself speaks most convincingly, and goes a long way towards justifying the action of the learned judge
Section 2403, code 1892, appears as § 2199, code 1880; § 1311, code 1871; art. 11, p. 406, code 1857, and was first enacted as § 21 of the act of June 28, 1822 (Laws, p. 8). Originally, it manifestly related to all process, civil and criminal, as an examination of that act will clearly show. In codes of 1857, 1871, and 1880 it appears in the separate chapter on civil practice, and the language of § 2403 — “party to the cause, etc.”' — seems to contemplate only civil cases, especially taken in connection with § 1372, code 1892, last clause, which provides that ‘‘private persons may also make arrests, ’ ’ this last relating only to criminal cases, and being declaratory of the common law. 1 Bish. on Cr. Proc., § 188. Whether § 2403 relates only to civil cases or not, however, under the facts of this case, the appellant, having acted under the warrant, should have been treated as clothed with the protection thrown around officers cie facto making arrests.
This, too, leaving out of view § 1372, code 1892, under which we are inclined to hold the warrant legally issued, not because of ‘ ‘ any emergency ’ ’ having arisen, within the meaning of § 2403, code 1892, which seems to relate now only to process in civil cases in which there is good reason for waiting till the regular officers can serve process, unless an “emergency ’ ’ arises, since, usually, no harm can come by waiting, but from the express power given by § 1372, code 1892. The
Reversed, and the cause remanded.