Hays v. State

94 So. 212 | Miss. | 1922

Ethridge, J.,

delivered the opinion of the court.

Appellant, Wiley Hays, was indicted and convicted of the murder of Leonidas Bankin and given a life sentence in the state penitentiary. The facts in the case are that the appellant came up with the deceased coming away from some meeting at a neighboring schoolhouse, the deceased being in company with' the wife and daughters of the appellant. The appellant and his wife had been separated for about ten years, and he and his family were not on good terms. He came up with the deceased and his wife and daughters and said to deceased in effect, “Didn’t I tell you to stay away from my place or folks?” to which the deceased in substance replied that he understood the road was free and that he could go where he pleased. Some words passed and appellant struck deceased over the head with a small rifle which he had with him. According to the testimony of the state’s witnesses he walked on to the house with his wife and daughters, which was only a few steps away from the scene of the difficulty, and ordered his wife and daughters to go in the house and, héaring a groan from deceased, he returned and struck him a number of blows over the head with the rifle, from which blows deceased died, never having regained consciousness.

Appellant’s theory is that deceased attempted to draw a pistol and that he struck him in self-defense and kept striking him until he secured possession of the pistol. He denies that he returned to the deceased and struck him after he left him.

It is first insisted that instruction No. 1 for the state is erroneous. This instruction read as follows: “The court charges the jury for the state that murder is the unlaAvful killing of a human being without authority of law, AAdien done by any means or in any manner when done with the deliberate design to effect the death of the person killed.

The criticism of the instruction is that the words “unlawful killing” and “without authority of law” constitute a double negative and are equivalent to an affirmative, and does not constitute the definition of murder. We do not think the objection well taken. It was not necessary to use both terms, but it is manifest that the instruction was excepting out of the definition a lawful killing. In our opinion no person could be misled thereby.

It is also assigned for error that the court committed reversible error in giving instruction No. 5, which is as follows:

“The court charges the jury for the state that, even though you may believe from the evidence in the case that the deceased pulled a pistol from his bosom and was attempting to use the same on the defendant, and that the defendant struck the deceased with a rifle in his necessary self-defense; yet if you further believe from the facts and circumstances in the case beyond every reasonable doubt, that the defendant abandoned the deceased and left him prostrate and helpless on the ground, and you further believe from the proven facts and circumstances beyond every reasonable doubt that the defendant, afterwards heard the deceased groaning and struggling, and that he (the defendant) returned to the deceased with a rifle, and, at a time when the defendant was in no real or apparent danger of losing his own life or suffering some bodily harm at the hands of the deceased, the defendant willfully and feloniously and of his malice aforethought struck the deceased a fatal blow or blows, and that said blow or blows proved fatal or contributed to the death of the deceased, then you should find the defendant guilty as charged, regardless of every other fact or circumstance in the case.”

It is admitted that the first part of this instruction is correct. But it Is contended that it ignores in the latter part the right to act upon appearances, and that it does not give the defendant the right to act upon appearances. We think the instruction plainly shows that it recognizes apparent danger as well as actual danger, and when applied to the facts and evidence on the part of the state correctly stated the law.

It is next insisted that it was error to give instruction No. 3, which read as follows:

“The court charges the jury for the state that if you believe from the evidence beyond a reasonable doubt that the defendant, Wiley Hays, armed himself with a deadly weapon, to-wit, a rifle, intending to use same for the purpose of overcoming his adversary, if necessary, and being thus armed, provoked a difficulty with the deceased in which difficulty he used said deadly weapon and killed deceased, then in that event the defendant cannot be heard to say that he acted in self-defense, unless you further believe from the evidence that he (the defendant) acting in good faith, attempted to abandon the difficulty finally.”

An objection raised is that there was no evidence justifying the giving of this charge. The evidence is that the defendant was armed with a rifle and that he followed the deceased from a social gathering, provoked the difficulty, and used this rifle in the combat. The explanation of the appellant as to the reason for having the gun was that he had promised a neighbor to go and kill a goat. The explanation of being armed is, we think, unreasonable under the circumstances in evidence., and being armed with a rifle at night, under all the circumstances appearing in. the record, we think authorizes the jury to infer that the appellant armed himself for the purpose of the difficulty, and that the jury had a right to disbelieve his statement under the circumstances and to believe that he sought the. deceased with the intent to kill him.

While instructions shutting off the right to self-defense should not ordinarily be asked or given, still, when they announce the correct rule of law and find support in the evidence, we cannot reverse a conviction because they are given.

It is next insisted that an instruction on manslaughter should have been given. Under our system the court is powérless to give an instruction unless it is asked to do so, and before the appellant can complain of the failure to give one he must show that it was asked.

We find no reversible error in the record, and the judgment is affirmed.

Affirmed.