72 Miss. 413 | Miss. | 1894
delivered the opinion of the court.
The first and second charges asked by the defendant informed the jury that, to deprive the defendant of the right of self-defense, he must have procured the pistol, intending at the time he procured it to bring on the difficulty, and use the pistol in the difficulty in overcoming or slaying the deceased if necessary. These instructions, as asked, are incorrect. It is not necessary, to take away the right of self-defense in such case, that the defendant should intend to use the pistol to overcome or slay his adversary. It is enough if he intends to use it in committing upon the deceased great bodily harm, or any felony. As asked by the defendant, therefore, the instructions should have embraced these qualifications. The modifications of the court, apparently, did not proceed upon this line, however; but, as written, told the jury, in the first modification, that it was enough to deprive the defendant of the right of self-defense, if he procured the pistol with a view of bringing on the difficulty, merely; and,-in the second modification, if he “armed himself with it, to be used in the fight” — to be used in any way — in overcoming his adversary, committing upon him any felony, or in merely inflicting injur y; however slight. The modifications, therefore, are also incorrect, as written. This court says, in Thomas v. State, 61 Miss., 60: “The second instruction was defective in omitting the qualification that the weapon was pro
The seventh instruction should have been refused altogether, as being without any testimony to warrant it. There is no evidence that defendant was "passing his son-in-law’s house,” and casually ' ' stopped in. ’ ’
The observations hereinbefore made respecting charges numbers one and two for the defendant, both as originally asked and as modified, apply to charge number nine for defendant, as asked and as modified.
The modifications of instructions numbered one and nine for defendant, were made, as we are informed by the bill of exceptions, "after the argument for the defendant had closed;” and we are further informed, that ' ' the district attorney, in his closing argument to the jury, commented on the fact that the law, as announced and argued by defendant’s counsel in instructions one and nine, had been so charged by the court as to put an entirely new feature on the case. ’ ’ And this action of the court is assigned for error. In Wood's Case, 64 Miss., 761, ' ' additional instructions were given for the state after the argument had proceeded. ’ ’ The case here is much stronger for the defendant, and if it be conceded that the principle of that case governs this, the ground of complaint here is much stronger as
The fifth instruction for the state is erroneous. Sam. Bart v. State, ante, p. 408. But it is cured by the ninth given for the defendant.
The third instruction for the state is clearly erroneous. By it the jury are told that if the “defendant armed himself with a deadly weapon, and went to the house of the deceased, at night, to do some unlawful act, and, in pursuance of such unlawful design, he provoked a difficulty, and in such difficulty he killed deceased, then it was murder, although they may further have believed that deceased, at the time of the shooting which produced death, was striking defendant with a hoe or other deadly weapon. ” It is not the law that he would have been guilty of murder, in the case stated, if his purpose was to
Reversed.