115 So. 2d 293 | Miss. | 1959
Appellant Frank Shannon was convicted in the Circuit Court of Claiborne County of assault and battery with intent to kill Herbert Hedrick and sentenced to six years in the penitentiary.
There was ample evidence to support the conviction. According to the State’s witnesses, Hedrick had gone on a trip, and his wife Lillie Mae had a “date” with the defendant Shannon at the Hedrick home. The husband’s car broke down, he returned unexpectedly, and Shannon ran out the back door, came around the house and shot Hedrick with a pistol. Hedrick was standing on his front porch when shot, had no knife or other weapon upon him, and was not threatening defendant. On the other hand, defendant, who admitted the stated circumstances preceding the shooting, claimed that Hedrick ran around the back of the house and chased him with a knife, so in necessary self-defense he shot him. Of course this conflicting evidence presented an issue of fact for the jury.
There was no error in the trial court refusing defendant’s instruction No. 2. The first clause assumed that Hedrick was trying to cut Shannon with a knife. Moreover, defendant was granted two other instructions
The trial court refused appellant this instruction: “The Court instructs the jury for the defendant that if the defendant Frank Shannon had been informed and believed that his life had been threatened, or that he was threatened with great bodily harm, he had a lawful right to carry a concealed deadly weapon. And the Court charges the jury further that while so armed he had the right to use the said deadly weapon in defense of his life, or himself from great bodily harm, from any attack made on him by Herbert Hedrick. ’ ’
The testimony as to Hedrick making any previous threats to Shannon is indefinite. Hedrick denied having made any. For defendant, L. E. Pattison was ambiguous, but indicated that people other than Hedrick had been saying that defendant might get shot for playing around with Hedrick’s wife. Shannon did not say that Hedrick had threatened him directly. Hedrick had not even talked with him, but ‘ ‘ someone told me that he said it,” namely, would kill him.
Appellant argues that refusal of this instruction was reversible error; and the jury had no alternative but to believe he was carrying a pistol in violation of the law. Yet, he says, Miss. Code 1942, Sec. 2081(a) provides that any person charged with carrying a concealed deadly weapon may show, as a defense, “That he'was threatened, and had good and sufficient reason to apprehend a serious attack from any enemy, and that he did so apprehend.”
Durham v. State, 158 Miss. 833, 842, 131 So. 423 (1930), followed Molphus. The trial court refused to give an instruction that if the jury believed “that a short time before the difficulty, the deceased threatened to kill the defendant, then the defendant had a right under the law to procure a pistol and carry it.” Citing Molphus, it was said this was not error, since defendant was not on trial for carrying a concealed weapon.
Molphus and Durham were again followed in Richey v. State, 220 Miss. 790, 72 So. 2d 152 (1954), where it was observed: “Refusal of defendant’s instruction concerning his right to use a deadly weapon in self-defense was correct.”
The Richey case did not cite Wood v. State, 165 Miss. 363, 373-374, 144 So. 545 (1932). Richey, decided in 1954, followed Molphus and Durham. In Wood, appellant was
2 Alexander, Miss. Jury Instructions (1953), Sec. 4395 states that Wood can and should be limited to its peculiar, distinguishing facts; and that it was there deemed ‘ ‘ proper to disabuse the mind of the jury of any criminal purpose since the instruction joined the right to carry the weapon with the right to approach the deceased upon a peaceful mission, whereas, otherwise, his actions may have been construed as a hostile aggression.” Judge Alexander observed that the subject matter of such an instruction could well be left to the reasoning powers of the jury and to the arguments.
We think Molphus, Durham and Richey state a sound principle of law. The accused was not on trial for carrying a concealed weapon, but for the use which he made of it. The requested instruction would simply be a comment upon the evidence. The decision in Wood should be limited to the peculiar circumstances of that case, where the instruction joined the right to carry the weapon with the right to approach deceased on a peaceful mission. The latter factor is nonexistent in the instant case. See also 94 C. J. S., Weapons, Sec. 9(d), p. 500. The
Affirmed.