McKenna v. State

61 Miss. 589 | Miss. | 1884

Chalmers, J.,

delivered #the opinion of the court.

By the sixth instruction for the State the jury were told in effect that they could not acquit the prisoner on the plea of self-defense unless they believed or had reason to doubt whether the deceased was at the time seeking to fnurder the prisoner, or that he had reason so to believe. This was clearly erroneous. It was not incumbent on the prisoner to do anything more than to raise a doubt in the mind of the jury as to whether he had a right to believe that the deceased was at the time seeking to do him some great bodily harm, and that the only way of avoiding this was to take the life of the deceased. If he honestly and reasonably so believed, he had the right to slay in order to save himself from impending serious harm to life or limb. The instruction denied him this, and was therefore erroneous.

It is possible that a close scrutiny of all the other instructions in the case might demonstrate that the error in this was cured by some others that were given, but we cannot resist the conclusion that the facts themselves dictated a different conclusion than that reached by the jury. The deceased was the dealer and accused was the player at a game of faro. A difficulty with high words ensued between them touching some incident of the game, in which charges of foul dealing were hurled back and forth. The deceased advanced in a threatening manner on the accused, who unbuttoned his vest and thereby displayed a weapon, at the same time pushing or shoving the deceased back. The deceased said, “You are armed, are you ?” The accused replied, “ By God, I am armed, and you had better prepare yourself and we will shoot it out right here.” The deceased turned at once to his negro porter and said, “ Where in the hell is my pistol ? Go and get it.” The porter went immediately to bring the pistol. While he was gone a bystander interposed to prevent a difficulty, and giving what he thought was a true version, suggested that it was too small a thing to fight about, whereupon the accused said, “ I give it up; I was wrong; I will let it drop.” Accused, as he said this, walked to the fire-place and there took his stand behind a spectator who was there standing. To this recantation or acknowledgment of wrong the deceased made no reply.. Meanwhile, the negro returning with the pistol, handed it to the deceased, who met him, and demanding it again, received it at the door. As soon as he received it, without saying a word, he advanced with raised pistol and outstretched arm, according to one of the witnesses, toward the fire-place. When he got near to the bystander in the rear of whom accused was standing, the latter reached around the stranger and fired upon and killed the deceased. The only conflict of evidence is as to whether the deceased advanced toward th.e fire-place, or merely turned around and faced toward it with raised pistol when he received the pistol from the negro; Only one witness swears that he did not advance toward the fireplace, and that witness admits that he turned around toward it-. We cannot think this difference material, though the others testify that he advanced. It is nowhere shown that the accused drew or was preparing his weapon while the deceased was getting his, or advancing upon him, as the fact may be. Upon this testimony the accused was found guilty and sentenced to be hanged. We cannot think that the facts warranted the verdict, and it is to be observed that we have alluded in this opinion solely to the witnesses for the State. Save the sixth instruction for the State, alluded to above, we find no objection to the charges given.

Reversed.