Pigott v. State, 65 So. 583

Pigott v. State

65 So. 583 | Miss. | 1914

Beed, J.,

delivered the opinion of the court.

Appellant was indicted for the murder of Wallace Brumfield. He was convicted and sentenced tó the peni-téntiary for life.

It is contended that the evidence in this case is not sufficient to uphold the verdict of murder.

The difficulty in which Wallace Brumfield was shot occurred after dark on a Saturday evening in June, 1913, in an open woods near to the village of Knoxo. Appellant was on his way home and going along a trail or path which he was accustomed to use. A colored, man, Thad Ball, who was with Grace Harness, a young colored woman in a clump of trees near the pathway, hailed appellant to borrow a dollar from him. About this time Brumfield, in a buggy accompanied by John Magee, a colored man, drove up. Appellant and Brumfield were not acquainted with each other. Brumfield was in search *557of the girl, Grace Harness, with whom he had had illicit relations. Magee got out of the buggy and called to Grace to go to Brumfield. Magee then left. He had used insulting words, and appellant had told him that he had better get away if he was speaking to him (appellant). Brumfield, as Magee was leaving, called and said to him that he would back him. Brumfield then got out of the buggy, advanced upon appellant, and an altercation followed in which appellant was knocked down by Brum-field, and as he arose fired one shot from a 25-caliber pistol, which struck Brumfield just above the heart and caused his death. Appellant left the place and went home. There were four persons present at the time the fatal shot was fired. Three testified — Grace Harness, T. B. Johnson, and appellant. That Ball was not introduced. .Grace Harness testified that, as Magee ran off, Brumfield told him to come back, that he would back him; that Brumfield got out of his buggy, and the difficulty between him and Pigott started; that both parties were cursing, and Brumfield applied a very vile epithet to appellant; that one of the parties slapped the other, and then Brumfield knocked appellant down; that she was then getting away from the place, but saw appellant fire his pistol, but did not know what Brumfield was then doing. Johnson’s testimony shows that Brumfield got out out of his buggy, cursed appellant, saying, 1 ‘I will kill you,” advanced upon and hit him several times, knocking him down; that Brumfield then began to pull his pistol and had it nearly out when appellant fired upon him. Appellant’s own testimony shows that .he had been attacked by Brumfield and knocked down; that, as he was arising and trying to get away, Brumfield was attempting to draw his pistol and threatening to shoot; and that he (appellant) thereupon fired, when Brumfield lowered his hand and sat down. Appellant testified that-at the time he did not know who the person was he was in the difficulty with; in fact, whether his assailant was a white man or a negro.

*558We do not see in the evidence in this case proof of the crime of murder. The circumstance of appellant’s failure to tell of the difficulty just after it happened and until the body of deceased had been found and it was ascertained that his death was caused by a ball from a 25-caliber pistol may indicate that he did not act with the best judgment consistent with innocence, but can hardly amount to proof to supply the deficiency in the testimony giving’ the actual facts of the occurrence. We fail to find any proof showing motive, or malice, or deliberate design on the part of appellant. He is. a man of family and of good character. He did not have an engagement that evening with Grace Harness and had never had an engagement, or any association, with her. The meeting upon this occasion when she was with Thad Ball was by chance. While he was on his way home, going along a path he had the right to travel, he was attacked by a man, a stranger to him. According to the state’s evidence, he was cursed by this unknown person, who applied the vilest of epithets and then knocked him down. A very brief time, perhaps only, a few minutes, intervened between the arrival of Brumfield and his attack upon appellant. Appellant did not have opportunity to deliberate. Suddenly and in the dark he found himself in serious combat with an unknown man.- He had not accosted or stopped the stranger, or brought on the difficulty. He shot a man, unknown to him, a few minutes after meeting, and- after-the' man had cursed him and knocked him down. • Considering all of the testimony for the state ip its most favorable aspect, it can only be said that appellant acted in the heat of passion. The evidence for appellant presents a case of ■ self-defense. The court committed error in submitting to the jury the question of appellant’s guilt of murder.

Appellant complains that the court erred in giving the second instruction' for -the state, which reads:

“The court instructs the jury that you do not have to believe a witness just because -he testifies in the case, *559and, in passing on the testimony of any witness, you may take into consideration the interest of such witness, if he has any, and believe or disbelieve any witness as you believe the truth is from all the testimony in the case.”

This instruction should not have been granted. Under the facts of this case, it is necessarily directed to the testimony of appellant. It singles out and marks him for discredit. Such instructions have been condemned by this court. Buckley v. Dunn, 67 Miss. 710, 7 So. 559, 39 Am. St. Rep. 334; Woods v. State, 67 Miss. 575, 7 So. 495; Townsend v. State, 12 So. 209.

Reversed and remanded.