| Miss. | Mar 15, 1915
delivered the opinion of the court.
This is an appeal from a conviction of murder. Only two witnesses testified to the facts of the homicide, one of them being the defendant himself. The homicide occurred on Sunday morning.
According to the testimony of Cordelia Mitchell, the witness who testified in behalf of the state, she, her father, mother, and the deceased were on the gallery of the witness’ home when the defendant drove up in a buggy, accompanied by the witness’ sister Lula; that as they approached, the deceased asked who they were, and on being told said, “It is a good time now to get the son of a hitch;” that when the defendant and Lula reached a point in the road opposite the house they stopped,- got out of the buggy, and approached the house, the defendant having with him a rifle; that when the defendant reached the gallery a conversation oc
“The first word I heard was, ‘I heard what you were going to do with me,’ and John he said, ‘Do what?’ and he said that he heard that he was going to kill him the next time he set eyes on him, and John said that he didn’t say that, and came in the house, and Ed called him to come outdoors, and John whirled around, and I ran in the other room.”
A few moments after the witness “ran in the other room” she heard a shot; and, on returning to the yard a few moments thereafter, the deceased was lying- on the ground, on his back, in a dying condition, and the defendant had gotten into his buggy. A large pocketknife, partly open, was lying on the ground near the deceased’s right hand. According to the defendant’s testimony, he did not see the deceased when he started into the house, and did not have with him his rifle, but left it in his buggy; that several persons had told him that the deceased had threatened to kill him, and that when he reached the gallery he said to him, meaning the deceased, “that I understood him to say that he was going to kill me;” that the deceased denied having s'aid it, and that then the defendant told him, the deceased, “if you are going to kill me, to get away from there.” What then transpired can best be told in the defendant’s own language:
“I started back then, and he came on behind me. He comes down the gallery and I goes to the side of it. Q. What was he doing; what was his attitude? A. He came running behind me, and I went on to my buggy, and I ran on up to the buggy, and when I gets to the buggy I reached over and got my gun. Q. What was he doing at that time? A. He was coming after me with his knife. He had it in his hand. I threw the gun up then when he was coming on me and told him to stop, and he leans over this way and kept on coming, and I*89 shot. Q. What happened when you shot? A. I got back in the buggy, and he wheeled when I shot. Q. Did he run? A. No, sir; he fell. Q. When you shot what was his position towards you; the position of his bands and the knife? A. He bad his knife after me, and he was about half bent over this way.”
There was some evidence introduced on behalf of the state tending to show that from the nature of the wound, the ball must have entered tbe deceased’s body from the rear, and some evidence introduced on behalf of the defense which tended to show that it must have entered the body from the front. There was also some evidence of statements made by the defendant, which may be said to have thrown some light upon his conduct, not material to be set out. Several witnesses also testified that both the defendant and the deceased had threatened to kill each other. The deceased owned a pistol which he had pawned to a man named Smith. The defendant sought to prove by Smith that on Friday before he was killed the deceased applied to him for his pistol, but that, not having the money with which to redeem it he, Smith, declined to let him havq it; that the deceased then said he would get another, and that the witness then said to him, “Yes, you can get one, and you will fool around and get yourself killed, ” to which the deceased replied, “There will be a dead negro when I do.” The deceased had told another witness that Smith would not let him have his pistol arid that he knew the reason why, saying: “It was to keep me from killing Ed Lucas; that he wanted to kill him before now, and he said he didn’t give a damn whether Mr. Smith gave him the pistol or not.”
The granting of the state’s fourth and sixth instructions, which the reporter will set out in full, is assigned for error. The objection to the fourth instruction is that the court thereby charged the jury that one of the essential conditions in order to make out a case
“It is not every act of aggression or provocation which produces a difficulty, and in the course of which a necessity to kill another arises, that will preclude the slayer from availing himself of the right of self-defense; but it depends upon the character and quality of the act, and in some jurisdictions' also upon the intent with which the difficulty was brought bn.” 21 Cyc. 806.
If the defendant “brought about” this difficulty at a time when he was unarmed, and with no intention of inflicting death or great bodily harm upon the deceased in the course thereof, and according to his testimony such may have been the fact, he is not estopped from pleading the right of self-defense according to the rule laid down in Prine’s Case, 73 Miss. 838" court="Miss." date_filed="1896-03-15" href="https://app.midpage.ai/document/prine-v-state-7987887?utm_source=webapp" opinion_id="7987887">73 Miss. 838, 19 So. 711, and followed in Lofton’s Case, 79 Miss. 732, 31 So. 420, and Rogers’ Case, 82 Miss. 479" court="Miss." date_filed="1903-03-15" href="https://app.midpage.ai/document/rogers-v-state-7988975?utm_source=webapp" opinion_id="7988975">82 Miss. 479, 34 So. 320. These instructions, therefore, should not have been given.
A further objection to the sixth instruction is that the court should hot have thereby called attention specifically to the threats said to have been made by the defendant against the life of the deceased, and advised the jury “that such threats may be considered in con
The testimony of the witness Smith should not have been excluded. The fact that the deceased was trying to procure a pistol from him with which, as he in effect stated to another, he intended to kill defendant was material in determining whether he or the defendant w.as the aggressor in the difficulty in which he lost his life.
Reversed and remanded.