Jones v. State, 54 So. 724

Jones v. State

54 So. 724 | Miss. | 1910

Anderson, J.,

delivered the opinion of the court.

The appellant, Andrew Jones, was convicted of the murder of his brother-in-law, Merriwether Smith, and sentenced to life imprisonment.

The wife of the deceased is a sister of appellant. The deceased was a powerful man physically, weighing from two hundred and fifteen to two hundred and thirty pounds, while the appellant, being a much smaller man, was wholly incapable of coping with the deceased in a physical contest. The deceased whipped his wife, as it seems from the testimony he was in the habit of doing. She left him, stating that she was going to Okolona to prefer a charge against him for whipping her. He stated to her that, if she did, she would never “report anybody else,” and the person who carried her to Okolona for that purpose would never “carry anybody else.” She got her brother, the appellant, who was informed of these threats, to carry her to Okolona for the purpose of preferring the charge against her husband. The deceased and appellant resided about four miles from Okolona. The appellant and his sister made the trip to Okolona *902in a buggy; the appellant carrying bis gun with him to protect bimself and his sister against the execution of the threats made by the deceased. While returning from Ok'olona, and just before reaching the home of appellant, the deceased, who appears to have been in waiting, attempted to intercept them. He assaulted his wife, and attempted to pull her out of the buggy. While he was in the act of so doing, the appellant alighted from the buggy with Ms gun, and, stánding only a few feet away, shot the deceased in the leg. The wound of itself was not dangerous, but became infected with the germ of tetanus, from which deceased died about two weeks thereafter. The appellant made no attempt to shoot a second time, though there was nothing to prevent Ms so doing, and killing the deceased then and there.

TaMng the facts testified on behalf of the state, and every reasonable inference which might be drawn therefrom, to be true, in connection with that testimony for appellant which is uncontradicted, and the evidence is wholly insufficient to sustain the verdict of the jury. There is an entire absence of evidence of a deliberate design on the part of appellant to effect the death of the deceased. On the contrary, it is overwhelmingly shown that appellant shot without malice, under the heat of passion and excitement of the moment. He had the right to use the necessary force to protect himself and sister from the assaults of the deceased. If he shot in the heat of passion without malice (as he did), but unnecessarily, he is guilty of manslaughter, and not murder. If he shot in necessary defense of himself and sister, or of either— that is, to prevent deceased from taking their lives, or the life of either, or inflicting on them, or either of them, great bodily harm, there being at the time imminent danger of such design on the part of deceased being accomplished — then he is guilty of neither murder nor manslaughter, but innocent of the whole charge. The court *903erred in submitting to the jury the question whether appellant was guilty of murder.

. The other assignments of error are not noticed, because, if well founded, they are not such errors as will probably occur on another trial, which will involve alone the issue whether appellant is guilty of manslaughter.

Reversed and remanded.