Kendrick v. State

| Miss. | Oct 15, 1877

Campbell, J.,

delivered the opinion of the court.

The fifth instruction for the state was properly given. The criticism upon it by counsel for plaintiff in error is because of the.concluding part of it, which announces that the “mere fear, or apprehension, or belief, however sincerely entertained” by the accused that Chambers designed to take his life, did not justify the accused in killing him.

Certainly, unless appearances at the time were reasonably calculated to excite the apprehension of the accused that Chambers was about to do him some great personal injury, he was not justified in killing him.

• His mere fear, or apprehension, or belief, however sincerely entertained, did not protect him in acting on it. His apprehension must have been a reasonable one, created by the circumstances surrounding him — as to which the jury were to determine. Dyson v. The State, 26 Miss. 362" court="Miss." date_filed="1872-07-01" href="https://app.midpage.ai/document/dyson-v-state-7998366?utm_source=webapp" opinion_id="7998366">26 Miss. 362; Wesley v. The State, 37 Miss. 327" court="Miss." date_filed="1872-07-01" href="https://app.midpage.ai/document/wesley-v-state-7998441?utm_source=webapp" opinion_id="7998441">37 Miss. 327 ; Head v. The State, 44 Miss. 731" court="Miss." date_filed="1870-10-15" href="https://app.midpage.ai/document/head-v-state-7984008?utm_source=webapp" opinion_id="7984008">44 Miss. 731; Long v. The State, 52 Miss. 23" court="Miss." date_filed="1876-04-15" href="https://app.midpage.ai/document/long-v-state-7984614?utm_source=webapp" opinion_id="7984614">52 Miss. 23.

The third instruction asked by the defendant below was properly refused. It is not any hypothesis or supposition arising out of the testimony, inconsistent with the guilt of the accused, which makes it the duty of the jury to acquit him. It must be a reasonable one, sufficient to create a doubt of his guilt. Whart. Cr. Law., sec. 707.

. The sixth instruction asked by defendant below was properly refused. It was not applicable to the facts in evidence. It is undoubtedly true, under some circumstances, that a man may anticipate the action of his adversary, and slay him, and be justifiable in doing so ; but it is only in extreme cases that this may be done, and where to strike in anticipation is shown to have been necessary to one’s self-defense.

An instruction to this effect should never be given except where the evidence is calculated to create the belief that, but for the timely action of the accused, he would have been the victim of his adversary. Long v. The State, 52 Miss. 23.

. It was not error' to refuse the seventh instruction asked by defendant, because, while it is strictly correct, it was unnecessary, for the reason that the principle it announces is contained in the eighth, tenth, and twelfth instructions given at the request of defendant, which state fairly and fully the rule of law embodied in the seventh'instruction. It is not error to refuse to multiply instructions on the same principle of law.

The eighth instruction asked by defendant was refused as asked, but was modified by the court, by striking from it so much of it as coupled previous threats of the deceased, that he intended to kill defendant, which had been communicated to defendant, with acts and appearances at the time of the killing indicating that deceased intended then to put such threats into execution, and, thus modified, the instruction was given. A man whose life has been threatened in such a manner as to excite his apprehension that the party threatening has a design to take his life or do him some great personal injury, is put upon his guard, and may justly be vigilant of every movement of him who has made the threat which has come to his knowledge, in order to guard successfully against its accomplishment ; and if he who made the threat makes any demonstration reasonably calculated to excite in the mind-óf the person threatened a just apprehension that there is then imminent, danger of an attempt to execute such previous threat, whereby the life of the person assailed is endangered, or other great-personal injury is about to be done him, and, thus believing, he strikes for his defense, he is justifiable-. He is entitled to-couple the threat of - which he has knowledge with the demonstration of the person who made it, and to interpret the demonstration by the aid of the previous threat. If his knowledge -of a threat, added to the hostile demonstration of the person who made it, evincing to all appearances a present design to execute it, is- justly calculated- to excite in his mind' a sincere apprehension that he is thereby in -imminent danger of losing his life or suffering other great personal injury, and to avert this he kills his assailant, he has but defended 'himself. • .... ...

• But, although one may know that his life has been seriously threatened, he may not for' this slay him'who threatened it. He may watch-the movements of the' persón who threatened, and, interpreting his demonstrations by the light of the threat, he may strike for his defense whenever - he -has just ground, from the threat and the overt acts of his adversary, to believe that there is imminent danger of -the execution ■ of the threat so as to endanger his own life or do him some great personal injury. He must judge for himself, and decide at the time at his peril. If a jury'shall'think he had reasonable ground, situated as he was, to act as he did, he will be justified. He is to be judged by his action, coupled with his knowledge that his life had been' threatened, and is entitled to-the benefit of his quickened apprehension excited by this knowledge, and the fact that he interpreted the demonstration of his assailant by the light of his previous hostile declaration. Such we understand to be the use of threats which "had- been communicated to a defendant before he killed his assailant. ' ■ -

' But, as one may not lawfully kill another merely because of a threat, however serious,it is not-admissible for one accused of murder to invoke the rule just announced where the' evidence leaves no room for doubt as to the circumstances of the homicide, and excludes all ground for believing that there was any apprehension on the part of the accused that he was in any danger from the person he killed. In such case a previous threat can have no influence in favor of the accused. It matters not how many threats were made, if no attempt was made to.execute them, and no demonstration by the person having made them calculated to induce the belief of-an intention to execute them. In that state of case there is nothing with which to couple the threats, and they are not available to the defendant.

The eighth instruction, as asked by defendant, is correct as applied to a case where the accused had been threatened with loss of life or great personal injury, and had killed his adversary under such circumstances as to excite his just apprehension, from overt acts of his adversary, added to his previous threats, that he was then about to carry his threat into execution ; but it was properly refused in this case, in view of the evidence, which shows clearly that, at the time when he was shot, Chambers was neither about to execute any threat upon defendant,nor was in a situation to do him any injury. There is nothing in the case to induce the belief that the accused had the least apprehension of danger from Chambers.

It is proper to giye the accused the benefit of the rule applicable to previous threats communicated to him, as we have announced it, where the evidence does not authorize the conclusion that there was nothing in the conduct of the deceased to induce the belief of a purpose to execute his threat; but where, looking to all the evidence, it may be confidently asserted that there was nothing in the conduct of the person who made the threat to excite the apprehension of any design on his part to put the threat into execution, it is the duty of the court to deny to the accused the rule of law applicable to the other state of casé.

The third error assigned is based on the admission of evideuce of what Chambers said to defendant about the shooting, some minutes after it occurred, as Chambers lay wounded. “ Chambers said, ‘Kendrick, you have murdered me without cause or occasion, and it was a d — d cowardly act.’ To which Kendrick made no reply.” This was not admissible as part of the res gestae, because it occurred sometime after the shooting, and was merely a narrative of the past. It was not admissible as a dying declaration, because not made under the solemnity required in such case. But it was admissible as something said to the defendant, and not denied by him. It was for the jury to attach such value to it as it deserved. They might well regard it as of. little worth, considering it the ebullition of angry passion, and that under the circumstances it was not surprising that Kendrick made no reply.

The next error complained of is that the court excluded testimony offered by defendant. He proposed to prove that, on the night of the shooting, Chambers had desired Alford to exchange coats with him, and to let him have his pistol — all of which was refused by Alford ; and that, on the day before the shooting, Chambers applied to Mayfield for a bowie-knife, saying he had neither money nor pistol, and that “ he was going to have a difficulty with that d — d rascal, Kendrick, and would corral him before night, and that one of them would be in hell before morning,” or some such words, but May-field did not let him have a knife — and none of this was made known to Kendrick before the shooting. All of this proposed evidence was excluded, and properly. It could not have influenced Kendrick, for he did not know of it. It had no relation to the shooting, and was not needed to illustrate it. Chambers did not get Alford’s coat or pistol, nor did he get a bowie-knife from Mayfield, .nor was there such a direct connection between these acts and his encounter with Kendrick as to cause them to be admissible as explaining what otherwise would be doubtful. There is no uncertainty here as to the circumstances of the shooting. The part acted by Chambers is shown, as well as that performed by Kendrick. There is no necessity for resort to the previous declarations and acts of Chambers, for we are informed exactly what he did, and how he was wantonly murdered by Kendrick. The acts and hostile declarations of a persou not communicated to the accused, who has killed him, are in some cases admissible in evidence, as held in Johnson v. The State; 54 Miss., but it is only where it is found to be necessary to ¿resort to such acts and declarations as illustrative of what otherwise seems unexplained — as, where the circumstances of the crime charged are unknown or doubtful, or where the acts and declarations are so directly connected with the act out of which the alleged crime arises as to necessarily throw light upon it, or where, from the peculiar circumstances of the case, it can be said that such previous acts or declarations are necessary to the ends of justice. It is only in exceptional cases that such evidence can be admitted, and caution in making the exception should be observed. In this case the evidence was property excluded.

C. McGehee, a witness for defendant, testified that, during the night of the shooting, Chambers stuck a knife in the counter of the saloon in which they were, and said, speaking of Kendrick, “ he had it in for him, and was going for him tonight;” and McGehee told Kendrick of this, and to look out lest Chambers might cut him or hurt him. McGehee had been a witness before the grand jury in this case, and on cross-examination on the final trial he was asked if he had told the grand jury about Chambers having stuck the knife in the counter, and about his having said “ he had it in for him, and was going for him to-night.” To which he replied that he thought he had told this to the grand jury, but if not, it was either that he had forgotten it at the time or that the questions were not asked him, so as to call out this information. After the defendant had closed his evidence the state introduced several of the grand jurors, who testified that McGehee, when before them as a witness, did not say anything about Chambers having stuck a knife in the counter, or having made the declaration testified to about Kendrick. It did not appear from the evidence of the grand jurors that any questions were propounded to McGehee suited to elicit such answers, or that any questions were put to him about the difficulty between Chambers and Kendrick. After this evidence by the grand jurors, defendant offered several witnesses to prove that McGehee was a man of good character for truth and veracity, and worthy of credit. This testimony was rejected, and its rejection is alleged to be error.

McGehee’s testimony was wholly unimportant and immaterial. What if Chambers did what he says, and he told Kendrick of it; it could not avail to shield Kendrick from guilt for the wanton murder of Chambers, whom he shot when he was doing nothing to excite the fears of Kendrick. Concede the absolute truth of all that McGehee testified, and Kendrick was wholly unjustifiable for shooting Chambers.

It is wholly immaterial whether the jury believed McGehee or not. If he had been sustained by a cloud of witnesses, his evidence could not properly have availed defendant. It was, therefore, not error to refuse to admit evidence of his character.

The last ground of error assigned is not well taken. The plaintiff in error cannot complain of the verdict. He may well felicitate himself on a lucky escape from a verdict of guilty of murder.

Judgment affirmed.