77 So. 2d 282 | Miss. | 1955
Bupert Newman, appellant, was convicted of the murder of Cyrus Hood, and sentenced to the state penitentiary for life, the jury disagreeing as to the punishment. Prom that verdict and judgment, this appeal was taken.
Appellant raises many questions on the appeal, the main one of which being his contention that his request for a peremptory instruction should have been granted by the lower court. Since we have concluded, after diligent study of the record, this instruction should have been granted, we pass only upon that contention.
Appellant admits he shot and killed Mr. Hood but he says he- did so in defense of his brother, Dupree Newman, at a time when Hood, without any justification, was in.the act of shooting, or shooting at, Dupree, and that the action of appellant was in the lawful defense of his brother.
The homicide occurred about one o’clock in the morning of January 1, 1954, in the dining room of Bishop’s Service Station and Cafe located just north of the corporate limits of the City of Hazlehurst, Mississippi.
A brief description of the premises will be of aid, we think, to an understanding of the evidence.
At this point U. S. Highway 51 runs practically north and south. Bishop’s place is located near and on the west side of and faces east upon that highway. There are four gasoline pumps located between the building and the highway. These are in a row extending north and south. A few feet west of these pumps is the office used in connection with the gasoline station, the front door to which opens to the east and towards the pumps. The cafe is north of the office, but the office extends some fourteen feet east of the cafe. The cafe part is longer north and south than it is east and west. A door is located at the southeast corner of the cafe, permitting en
On the morning of the tragedy, Mr. Hood was in charge of the premises. There is a dispute in the testimony as to whether he was in charge of the cafe operations or whether his authority and duties were confined to the gasoline station. However, we will assume he had authority over the cafe operations.
Dupree Newman, a brother of appellant, came into the cafe around one o’clock. He took a seat at a booth lo
Porter then told Roy Miller to drive Porter’s truck to the rear of the building and bring the whiskey to him. Miller did that, the bottle of whiskey being in a paper sack, in which it was placed on the table occupied by Kelly, Porter and Dupree Newman. At this point Mr. Hood Avalked over to the booth, touched Dupree on the shoulder and told him he would have to leave the dining-room and go into the cafe part of the building. There is no evidence that Hood then demanded that Dupree leave the premises. He was told to go into the cafe. And A^e have not discovered in the evidence any proof that there were any lady guests present in the dining-room. In any event a scuffle then took place between Dupree and Hood. Dupree either hit, or hit at, Hood Avith his fist, whereupon Rupert Newman, the appellant, who was also present, and some others separated Dupree and Hood.
Hood then left the dining room through the archway, passed the pin-ball machine, the cash register in the cafe, and into the office of the gasoline station. As he left the dining room, he beckoned to the NeAvmans, or some of them, to follow him. All of the Avitnesses understood
Mr. Hood procured his pistol, a 44-caliber, from his automobile parked at the wash rack, and within two or three minutes proceeded back to the front door of the office. He had his pistol in his hand. As he entered the office he placed the pistol under his coat. He paused a moment to register a sale at the cash register. He then proceeded to the dining room. Just before or just
Now, the first question is whether Dupree would have been justified in defending himself, even to the extent, if necessary, of killing Mr. Hood, under the foregoing circumstances.
It will be noted that Dupree had not moved from his original seat in the northwest booth. He had not obeyed Hood’s command to come out of the building. He was unarmed. No one claims he was engaged in any kind of hostile demonstration towards Hood. He said not a word to Hood. The dining room was seventeen feet wide. Dupree was in the northwest corner, diagonally across the room from Hood, which placed Dupree some twenty feet from Hood. Hood, angry and threatening to kill the “damn” Newmans, suddenly appeared, drew his pistol and began shooting at Dupree. Surely, under these circumstances, Dupree would have had the right to defend himself, even to the point of taking the life of Mr.- Hood: -The principles announced in the following
But did appellant have the right, under such circumstances, to kill Hood to prevent Hood from inflicting great bodily harm or death upon Dupree? Section 2218, sub-section (f), Miss. Code 1942, provides that “The killing of a human being by the act, procurement, or omission of another shall be justifiable * * * When committed in the lawful defense of one’s own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished.” See Little v. State, 87 Miss. 512, 40 So. 165, where defendant acted in defense of his brother; and Blackledge v. State, 157 Miss. 33, 127 So. 84, where defendant killed in defense of his mother. The rule is stated in 26 Am. Jur., Section 159, page 266, in these words: “The right of one to justify a slaying on the ground that it was necessary in defense of another person stands upon the same plane or footing as, and is coextensive with, so far as justification is concerned, the right of the person to whose aid he goes, under the existing circumstances of the particular case; or, as is sometimes stated, the right to justify killing in defense of another depends upon the same conditions as would he necessary to excuse such other person under the plea of self-defense.” In other words appellant had the same right to defend his brother as his brother had to defend himself. Nor is it intimated
But it is ably argued by the State that the testimony of Loy King, Jr. made an issue for the jury as to whether Hood was shooting at Dupree and whether Rupert shot Hood during the time, or immediately after, Hood was shooting at Dupree. Five eye-witnesses testified. King was one. He was placed on the stand by the State. The other four testified for the defendant, and the testimony of the four established the essential facts at the time of the shooting as we have related them above. King said he was standing at the pin-ball machine. He gave his version of the trouble preliminary to Hood’s departure for, and his return with, his pistol, and then he said “Mr. Hood later came back in and when he passed me he reached in his coat — he had on a big brown coat — and he reached in his coat and pulled out the gun and just as he threw it up to fire — I don’t know, I can’t get it clear in my mind whether Rupert grabbed his arm just time he fired or a second after he fired. I don’t know exactly which. ’ ’ He was then asked: ‘ ‘ Then what occurred?” He answered “Rupert shot him and he fell.” He said there were five or six shots in all. All of the eye-witnesses said that. Again King said: “I say when he went in and pulled out his gun I don’t know whether Rupert had grabbed his arm before, or a split second after he shot, or just time he shot.” Q. “And after Mr. Hood shot, then Rupert shot, didn’t he? That is what you testified befoi-e.” A. “Yes, sir.” Q. “That, is right. Rupert didn’t shoot and kill Mr. Hood until after Mr. Hood had shot at Dupree, is that right?” A. “The first gun or second gun, I don’t know which it was. ” Q. “ And after he shot that pistol at Dupree then Rupert shot him?” A. “He was holding his arm when he shot him. Rupert was holding Mr. Hood’s arm when he shot him.” Q. “Rupert was hold
And on the question of whether Hood was shooting, or shooting at Dupree, (the effect being the same) it should be kept in mind that Dupree was shot; that only Hood and Rupert displayed pistols, and that certainly
The State further urges that the manner in which Hood was shot presents an issue for the jury as to whether the shooting of Hood by Newman was in defense of Dupree Newman. Hood was shot twice. Both shots entered the back of his neck. One entered about one- and-a-quarter inches to the right of the middle of the neck, about the hairline, and ranged upwards, emerging at the right ear; the other entered about three inches to the left of center, at the hairline, ranged to the right and emerged at the right shoulder. Now, the defense here is the defense of Dupree — not of the defendant himself. Had the plea been self-defense, the fact that the shots entered the back of Hood would have been very pertinent on the question of self-defense of appellant himself. However, under the plea here, appellant had the right to shoot Hood any place, or from any position, to prevent his shooting Dupree. There is really no dispute that Hood shot Dupree before appellant shot Hood. Dr. Blaine, witness for the State, testified that either of the shots would have been fatal to Mr. Hood, and that Mr. Hood could not have shot Dupree after receiving either wound, except that “he could have had a reflex firing,” by which he means, we presume, Hood could not have consciously pointed his pistol at Dupree after receiving his wound. All of the witnesses said five or six shots were fired. Hood fired at least two of them. The witnesses also said they were rapid-fire shots. Smith, a witness for the State, said they were “pretty fast.” Mohon, a witness for the State, said he heard five shots “pretty fast for a pistol.” King, eye-witness for the State, called them “burst” shots. Witnesses for the defendant, who testified about the rapidity of the shots, all said they were in rapid order. In other words, there is no dispute here that appellant shot Mr. Hood while Mr. Hood was shooting at Dupree. Just why Hood was shot in the back of the neck is not explained. King,
The State says Dupree was engaged in the commission of a misdemeanor and that this in some manner justified the actions of Hood. In the first place, it is not clear what misdemeanor, if any, was being committed by Dupree. If it be based upon the possession of the whiskey, it should be noted that the whiskey belonged to Porter. He had it in his truck. Porter sent for it and had it brought in and placed upon the table. Dupree did not own, or have possession of, the whiskey. He did not have
But even though Dupree had possessed and controlled the whiskey, this gave Hood no right to shoot him. “Generally, the prevention of a mere misdemeanor furnishes no excuse for a homicide.” 26 Am. Jur., Section 124, page 240. If Hood was in charge of the dining room, and Porter insisted, over his objection, on keeping the whiskey on the table, Hood should have called an officer rather than go out and arm himself and return and shoot Newman. There was no emergency about that situation.
The State also urges that Dupree was a trespasser and that this justified the conduct of Hood. “A mere trespass or entry upon one’s premises other than his dwelling, not amounting to a felony, is not considered sufficient provocation to warrant the owner’s using a deadly weapon in its defense, or sufficient provocation to arouse the degree of passion requisite to reduce from murder to manslaughter his crime in slaying the intruder, notwithstanding the killing may have been necessary to prevent the trespass.” 26 Am. Jur., Section 27, page 173. Again “While the law justifies or excuses the taking of life when necessary to prevent commission of felonies, or in the defense or protection of one’s dwelling-house or habitation, one cannot defend his property; other than his habitation, to the extent of killing the aggressor for the mere purpose of preventing a trespass, where the invasion is made without force '* * * Generally speaking, a mere trespass is not such provocation as to entitle one to use a deadly weapon or to reduce a killing from murder to manslaughter, unless the trespass is accompanied by the destruction of or injury to lands or goods; and if one deliberately kills another to prevent a mere trespass on property, whether such trespass can or cannot otherwise be prevented, it is murder.” 26 Am. Jur., Section 172, page 272. McDaniel v.
We might add, in this connection, Dupree was not a trespasser. He was in a public cafe. The public was invited to that place. It held out an invitation to the public. He had ordered and was eating a meal. He had not been requested to leave the premises. Hood told him to leave the dining room and go into the cafe, a part of the same building.
And a complete answer to the contention is that Hood was not trying to eject Dupree from the premises. When Hood appeared at the threshold of the dining room, he began to shoot Dupree. He never requested him to leave the room. In other words, Hood was not endeavoring to prevent a trespass if a trespass was being committed. He simply appeared and shot the man without making any demand or saying a word.
The State, through its able counsel, contends that the proof established some kind of a conspiracy on the part of the Newmans. It is not clear, from the record, just what crime it is contended they conspired to commit. At one place in the record, it is stated they conspired to override Hood’s objection to the whiskey being placed upon the table. The object of the conspiracy contention was to render admissible as against appellant all statements made by any of the Newmans. That was the reason, no doubt, the learned trial judge admitted the statements. We deem it unnecessary to follow up and decide the conspiracy question except to say: The conspiracy justifying admission of statements by persons other than the defendant would have been a conspiracy to commit the crime with which defendant was charged — in this case the murder of Mr. Hood. Jones v. State, 189 Miss. 533, 198 So. 555. The proof is entirely insufficient to establish any such conspiracy. In this connection, it may be pertinent to observe that had the Newmans intended to kill Mr. Hood, the opportune time would have been
We, of course, are deciding the case upon the record before us. Neither the reputation for veracity nor for peace and violence of any of the actors or witnesses is in issue on this record. That record discloses, without material contradiction, as we view it, that Mr. Hood, in an angry mood, procured his pistol, and after threatening to kill the Newmans, appeared at the threshold of the dining room, drew his pistol and shot Dupree Newman, when Newman was unarmed, was making no hpstile demonstration whatever towards Mr. Hood, and Hood was in no real or apparent danger at the hands of Dupree Newman, and that Rupert Newman, the appellant, shot Mr. Hood while he was shooting, or shooting at, Dupree Newman, and in the necessary defense of his brother Dupree. Therefore, the peremptory instruction requested by defendant should have been granted.
Reversed and appellant discharged.