Strickland v. State, 81 Miss. 134

Strickland v. State

81 Miss. 134 | Miss. | 1902

Terral, J.,

delivered the opinion of the court.

The appellant being convicted of murder, and being sentenced to be hanged, assigns error in the proceedings against him.

Four persons came to his home somewhat late at night, two of them armed, declaring they came to arrest him, and upon *136seeing him, demanded that he throw up his hands, when he fired upon them, and one of them was killed. His counsel claim that if he fired upon his assailants because of being unlawfully restrained of his liberty he is only guilty of manslaughter, and that at least his contention in this respect should have been placed before the jury. This contention is, we think, well grounded. . Whenever the life of a human being is in the balance, it is but just to him that the law governing the ease made against him be properly stated to the jury.

The appellant here is not shown to have committed any wrong; his assailants show no warrant against him; yet he is assaulted in his own home at night by unknown persons, some of whom are visibly armed, and one of them is killed in consequence. Without more, such evidence only presents a case of manslaughter. The fourth instruction for the state is assailed as erroneous. It declares: “It is murder to kill a human being without authority of law when done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular person.” Law writers justify this character of instruction where a person wantonly rides a horse used to kick into a crowd and one is thereby killed; or to random shooting into' a crowd without a particular purpose to kill; the malice arising out of the wantonness of the dangerous act done without provocation; but it is not strictly applicable in a case like this, where the accused is suddenly accosted by a crowd of armed men demanding him to surrender, under circumstances where the propriety of their conduct is gravely questionable.

The fifth instruction for the state assumed, as we understand it, that the persons armed who accosted Strickland and demanded that he throw up his hands and submit to arrest were officers in the due execution of their office. We think it was for the jury to say, upon the evidence, whether they were officers and whether they were proceeding with discretion and *137propriety. In a matter of such grave consequence to'appellant it was of vital moment to him that the jury should be correctly informed of his rights in the premises.

Because of the error of instructions (4 and 5, for the state) in the ease as made before the jury, we think the appellant should have a hew trial.

Reversed and remanded.