Moore v. State

110 So. 216 | Miss. | 1926

^* Corpus Juris-Cyc. References: Criminal Law, 16 C.J., p. 466, n. 82; p. 1053, n. 93. The appellant was indicted for manslaughter growing out of the killing of one R.L. Hogue on the school grounds in Attala county, Miss., where there was a contest between the Agricultural High School, of Leake county, and the Ethel public school, of Attala county, over a game of basket ball. It appears that the boys of the two schools had played a contest during which there had been a good deal of what is called "ragging" the referee of the said game. After this game between the boys was concluded, the deceased, who was principal of the Ethel school, came out on the court and announced to the people assembled that there would be another game shortly between the girls of the two schools, and requested the people not to "rag" the referee, but to be quiet and courteous during the game. He stated that it was not right to treat the referee as he had been treated in the former game, whereupon the appellant said, "I `ragged' the referee, Professor," to which the deceased replied, "I know you did, and I don't appreciate it; I wish you would either be quiet at the games or stay away from them" (or words to that effect), whereupon the appellant replied that he would go where he pleased, and the deceased said, "Yes, I will put you away." The appellant then advanced upon the deceased and told him to "put him away" then. The deceased struck the appellant with his fist over the eye, inflicting a wound from which the blood flowed freely. This blow knocked the appellant some six or eight feet away, and he drew his knife and returned to the deceased, who again struck him. They grappled, or clenched, and during this time the appellant stabbed and cut the deceased with his pocket knife, from which wounds the deceased died a few hours afterwards. When the stabbing took place the deceased wrenched himself loose and retreated, and called upon the people to stop the appellant and not let him cut him to death. The appellant followed, inquiring, "Where is he?" and stating that he intended to kill him. But he was stopped by persons assembled, and disarmed.

On the trial, the appellant made a motion for a continuance of the case upon the ground that his wife was sick and unable to attend the trial, and that she would testify, if present, that the appellant suffered greatly from the blows inflicted upon him by the deceased. He also set up as a further ground for continuance that two lady teachers in the school would, if present, testify that they had heard the deceased express ill will toward the appellant prior to the time of the difficulty, and denounce the appellant. The application did not show that these threats and denunciations were communicated to the appellant prior to the difficulty. The proof on the motion showed that the witnesses were sick, suffering with influenza, and were unable to attend court; that it would not be safe to compel them to attend court; and that they did not attend the trial. The motion was overruled and the trial proceeded with.

It appears that the difficulty was witnessed by many people. It further appears that the deceased struck the first blow, as detailed above, under the circumstances related. It appears from the record that the deceased was a man twenty-nine years of age, and weighed from one hundred eighty to two hundred seven pounds, according to the various opinions of the witnesses testifying in reference thereto. It further appears that the appellant was a man of forty-four years of age, and weighed about one hundred forty or one hundred fifty pounds; according to his own testimony he weighed one hundred forty-three pounds.

The court, among other instructions for the state, instructed the jury as follows:

"The court charges the jury for the state that the mere fact, if it be a fact, that the defendant was a smaller man than the deceased, of less powerful build and proportions, and of greater years, and was assaulted by the deceased with his fists and feet at the time of the fatal difficulty, and was being beaten without excuse or provocation, does not and cannot in law excuse or justify the defendant in taking the life of the deceased."

The giving of this instruction and the overruling of the motion for a continuance are relied upon as errors warranting a reversal of the case.

The defendant procured the following instructions in reference to the physical disparity between the deceased and himself:

"The court instructs the jury for the defendant that if the evidence shows that the deceased was physically capable of inflicting great and serious bodily harm upon the defendant with his feet and hands, and that the defendant had reason to believe and did believe that he was then and there in danger of such harm at the hands of the deceased, and that he cut the deceased to protect himself from such harm, then it is immaterial and makes no difference whether the deceased was armed or not at the time of the killing. Hill v. State, 94 Miss. 391, 49 So. 145.

"The court instructs the jury that, if the deceased was a much larger and stronger man than the defendant, so much so that the defendant was wholly and absolutely incapable of coping with the deceased, R.L. Hogue, in a physical combat, and had received or was liable to receive great bodily injuries at the hands of the deceased, in such combat, in an unjustifiable attack made upon him by the deceased, then the defendant was justified in using a deadly weapon to protect himself from an unjustifiable and deadly attack of the deceased, even though the deceased was wholly unarmed and the defendant was in no danger from the deceased, except such as might be inflicted by the deceased with his hands and feet.

"The court instructs the jury for the defendant that, if the evidence shows that the deceased was a much larger and stronger man than the defendant, and was capable of inflicting great and serious bodily harm upon the defendant with his hands and feet, or either, and that the defendant had reason to believe and did believe as a man of ordinary reason that he was then and there in danger of such harm at the hands of the deceased, and used his knife, with which he fatally cut the deceased, to protect himself from such harm, then the defendant was justified, and your verdict will be not guilty, even though the deceased was not armed."

We do not think it was reversible error to refuse a continuance.

The facts with reference to the blow were testified to by a number of persons. There was no dispute of the fact that the blows were severe. The defendant himself testified as to the effect of the blows upon him as being painful and causing great suffering. Whether the blows were dangerous or not in such sense as to warrant his resorting to a weapon was a question for the jury, and all the facts with reference thereto were fully testified to by witnesses both for the state and the defense. The wife's testimony therefore, would have been cumulative, and would not warrant us in reversing the case on that ground. Neither do we think the case should be reversed because of the absence of the two young ladies. Their testimony, if given as set out in the motion, would not have made any difference material to the result on the evidence before the jury.

We do not think the instruction for the state merits the complaint made of it.

Much was said in the argument in regard to the use of the word "mere" as calculated to mislead the jury. We do not think there is any difficulty in the average person understanding the meaning of the words used in this instruction. If there was a difference in the physical size and strength of the deceased and the appellant, that fact alone would not have justified the appellant to use a knife unless the assault was of such character as was likely to produce death or great bodily harm within the legal meaning of those terms.

The instructions given for the defendant fully informed the jury as to the right of the defendant to resort to a weapon, and all the instructions taken together are consistent with each other, and announce the law applicable to the facts.

The judgment of the court below will therefore be affirmed.

Affirmed.