54 Miss. 430 | Miss. | 1877
delivered the opinion of the court.
Thomas Johnson was tried and convicted- of the murder of Hood Smith. There was no direct evidence that Johnson committed the homicide except his own statement, proved on the trial. Johnson and Smith were tenants of E. T. Clark, and occupied houses contiguous to each other. Mr. Clark, in his testimony, stated that while at breakfast on the 10th day of October, 1876, he heard the report of a gun, and immediately went to the front of his house, where he could see the residence of the deceased Smith, distant about one hundred and fifty yards. He saw the smoke of a gun in front of Hood Smith’s house,' ten or fifteen yards from the wood-yard of Smith, passing over the cotton stalks, in a patch of rank cotton, near the wood-pile. He went to the place, and found Smith shot through the head with buckshot, and dead, having an ax-helve tightly grasped in his hand. He examined for tracks, but saw none. He said further, that Smith, two or three days before this, had gone to the field of Johnson and shot him with buckshot, wounding him badly in the hand and slightly in the body, and that just after the shooting, and while Johnson was fleeing, Smith said to him, that he (Smith) would kill him (Johnson) if he ever laid eyes on him again. The defendant introduced several witnesses, and offered to prove by them, that some three days before his death Hood Smith shot at and wounded the
Wharton, in his work on Criminal Law, § 1027, thus states the rule: “ Where the question is as to what was the deceased’s attitude at the time of the fatal encounter, recent threats may become relevant to show that this attitude was one hostile to the defendant, even though such threats were not communicated to the defendant.” In Wiggins v. People, 93 U. S. 465, the question was elaborately considered by the Supreme Court of the United States, and the rule as stated by Wharton accepted as true. The testimony is not relevant, in the opinion of the court, to show the quo animo of the defendant, “ but it may be relevant to show that, at the time of the meeting, the deceased was seeking the defendant’s life.” This is supposed to be a modification of the earlier doctrine. The competency of the testimony is discussed in Stokes's Case, 53 N. Y. 164; Keener's Case, 18 Ga. 194; Campbell's Case, 16 Ill. 17; Holler's Case, 37 Ind. 57; Arnold's Case, 15 Cal. 476; Scroggins's Case, 37 Cal. 676. In the case of Wiggins, ubi supra, the court went into a careful examination of the testimony, to see whether any conduct of the deceased at the time of the homicide warranted the admission of the testimony. So in Stokes's Case, the relevancy of the testimony was put on the ground mainly, “ that evidence had been given, making it a question for the jury whether the case was one of excusable homicide, upon the ground that the act was perpetrated by the accused in defending himself against an attempt by tire deceased to murder or inflict some great bodily injury upon him; and the further question, whether it was not perpetrated in resisting an attack made upon him by
The testimony under consideration is relevant and pertinent where it may aid, as a circumstance, in determining, in connection with other facts, whether the homicide is' excusable or not; as when the evidence fairly raises the question which was the aggressor. There the proof that the deceased had made serious threats, shortly before the rencontre, may'be considered by the jury for the purpose just indicated.
To justify a homicide on the plea of self-defence, the danger must either be actual, present and urgent, or the homicide must be committed under such circumstances as will afford reasonable ground for the accused to appreljend a design to carry into effect such purpose, and imminent danger of its accomplishment. Fear, apprehension or belief, sincerely entertained, that another
Let us test, in the light of these authorities, the competency of the rejected evidence. Did a question arise on the evidence, which party, the accused or the deceased, was the aggressor? Was there any testimony tending to show a conflict and combat, — that the deceased was doing any thing, mating any demonstration threatening, hostile or dangerous to the accused, or that he was in a situation to do so ? Rather does not the evidence show that the accused had concealed himself in the rant cotton with a shot-gun, and that he fired when in no danger, real or apparent? Nothing, as we have seen, relieves the homicide of a felonious character,on the plea of self-defence, except some overt act or conduct at the time of the killing, evincing a design to kill or do some great bodily injury, and a present real or apparent danger from the conduct of the deceased that it will be accomplished. If threats are known to the accused, he will be justified in resisting any attempt to put them in execution. But he cannot slay on the mere fear or belief that they rpay be carried out, unless some act evincing the purpose is' done. The only safe rule on the subject sanctioned by the best-considered cases is to test the relevancy and competency of the testimony by the character of the case as developed in the evidence. If A. arms himself with a gun, and declares ait the time that he will kill B. on sight, and shortly thereafter A. comes to his death at the hands of B., such declaration would be competent, with other facts, for the jury. If A.’s gun was found with his body, though nobody saw B. fire the fatal shot, the inference would not be violent that he was endeavoring to accomplish his purpose.
Whether recent uncommunicated threats are relevant or not, depends on the circumstances of each case. If the homi
There being no eye-witness to .the killing of Smith by the accused, if there had been circumstances in evidence showing a struggle and combat between the parties, the threats offered to be proved wóuld have been relevant, and, in the light afforded by these circumstances, might have aided the jury in determining who brought on the conflict. But the case in proof to the jury is, that the accused procured a shot-gun from a friend, and discharged it from a cover near the house of the deceased, when the latter, in all probability, was not aware of his presence, and when he was not in a situation to do him serious bodily harm. We doubt not that Johnson took the life of Smith because of the fear and apprehension produced by the threats which Smith uttered in his hearing only three days before. It has been the lawr from the beginning until now, that fear or apprehension that threats will be carried into action is no excuse. The Circuit Court did right in excluding them. Judgment affirmed.
The importance of the principle discussed, and the fact that, for the first time in this State, uncommunicated threats are declared to be admissible under some circumstances, induce me to add-a few words of concurrence in the views expressed on behalf of the court by the Chief Justice.
Threats by the party slain, of which the accused was ignorant at the timé of killing, could have no effect upon his mind or actions, and are, therefore, inadmissible in explanation or justification of them ; but they may, in the absence of proof showing the attitude of the deceased, throw much light upon the acts of the latter, and, therefore, under such circumstances,
Believing that the proof unmistakably shows a clear case of lying in wait and assassination, I think there was no error in the exclusion of the threats.