75 Miss. 670 | Miss. | 1898
delivered the opinion of the court.
The third instruction for the state is fatally erroneous. It practically amounted to an instruction by the court, as matter of law, that the defendant was estopped to set up self-defense. It is too narrow altogether. It is not true that the right of self-defense can never arise, at any stage of a difficulty, when one is defending himself against dangers of any kind that he may have unlawfully provoked. The fourth, fifth', and seventh charges are all erroneous, because there is no evidence that Patterson did provoke the difficulty, except the mere testimony that he went out with his loaded shotgun, and halted Brinson, and asked him what he meant by coming through his premises after writing him the insults he had written him. All that Patterson did might consist with a lawful purpose. He certainly had the right to inquire Brinson’s purpose, and the right to carry his gun for self-defense, if attacked. If he had threatened Brinson’s life, and determined to kill him, and, seeing him, went out with his loaded gun for the sole purpose of bringing on a difficulty, in order to get an opportunity to kill him, taking his gun for that purpose, and intending to use it, if necessary, to kill Brinson, of course, he would be guilty of murder. But there must be proof of these facts, before a charge can, in the concrete, be predicated of them. And there is no proof of any attack by Patterson, save as indicated. According to Shade Durr and Lucinda Durr, Brinson drew his pistol, over the protests of Patterson. .Their testimony may be a pure fabrication. But that is for the jury. The charges go too far.
Judgment reversed, verdict set aside and cause remanded.
