Thomas v. State

| Miss. | Oct 15, 1883

Chalmers, J.,

delivered the opinion of the court.

There was no error in refusing the continuance, no sufficient efforts to procure the attendance of the witness having been shown. The defendant obtained more than he was really entitled to in having his affidavit submitted to the jury as the testimony of the absent witness. The remarks of the district attorney and of counsel for the defendant, made in the presence of the jury, as to their willingness to contribute toward the expense of feeding the jurors during the trial were highly improper, but we cannot conceive that they affected the verdict. Neither party actually contributed anything, as the jurors must have known, and on the score of attempting to obtain undue favor with them by their offers, both parties were alike guilty, except that the defense far outbid the prosecution in amount.

Neither the first nor the second instruction for the State is free from objection. It was enough to tell the jury iñ the first instruction that they might consider the situation of the defendant and the motives he had to induce him to testify falsely. The addition of the words, that it was their duty to weigh his testimony carefully and with great caution, was erroneous as constituting a charge upon the weight of evidence. It was the duty of the jury to give his testimony just such weight as they thought it, under the circumstances, entitled to. When they have done this they have done all that the State has a right to demand. , The second instruction was defective in omitting the qualification that the weapon was procured or prepared with a view of being used if necessary to overcome opposition. These instructions must cause a reversal unless, taking the testimony for the defense as absolutely true, the verdict is the only one that would have been legally correct.

The facts as stated by the defendant himself are as follows : There had been a bitter animosity between the slayer and the slain, and mutual threats of killing had been expressed. A compromise and settlement had been brought about by mutual friends, but after its acceptance by both sides the deceased had expressed an intention of killing the defendant. A few days after knowledge of this threat had been ■ communicated to the defendant both parties attended a social entertainment given at night by the children of the village in the court-house. The defendant states that while sitting at one end of the gallery, which extends along the front of the building, he suddenly perceived the deceased sitting on the steps of the gallery at the other end, his back being turned toward the building. Deceased was engaged in conversing with a gentleman sitting near him on the steps. The defendant says that as soon as he recognized the deceased he drew his pistol from his hip-pocket, placed it in the pocket of the linen duster coat which he was wearing, rose from his seat, advanced toward the deceased until he was within a few feet of him, and then, halting behind and a little to the left of him, said : “ Now Dm ready for you to shoot.” Deceased instantly rose from his seat, throwing his hand behind or to his side as he did so, and. the défendant at once fired. The ball struck the deceased in the back, two inches to the left of the backbone. He sprung forward off the steps, run a distance of twenty-five yards, and fell to the ground. He was taken into the house and died the next day. This is the version given by the defendant. The man who was sitting by the side of the deceased says that the latter was shot while he was still sitting, and before he had time to rise, and the downward range of the ball seems to attest the truth of this statement; but this difference in the two statements is wholly immaterial.

Viewed in the most favorable light for the defendant, his act in preparing his weapon for quick and easy access, and walking up to the deceased and calling out, when he had approached to within a few feet, “ I am ready for you to shoot,” was a challenge to fight with deadly weapons, an impromptu duel. It is impossible to place any more favorable construction than this upon such acts and words. He who slays another in a duel, whether formal or suddenly improvised, and however fairly conducted, is legally a murderer; but he who walks up behind an antagonist unaware of his presence and invites or challenges him to fight, and then shoots him in the back before he can turn or draw a weapon, is not a duelist, but an assassin. It is true that the defendant says that he shot because the deceased threw his hand behind him and thereby induced him to believe that he was about to draw a pistol, but this was exactly what he had himself invited deceased to do and that which any man similarly situated and accosted would inevitably have done, if he was armed, under the first instinct of self-preservation. He who by his own conduct compels another to get ready for self-defense cannot claim that the responsive preparation has put his own life in danger, and thereby justified him in stopping the preparation by slaying him who was making ready for a combat into which he had been forced. Taking the defendant’s own testimony therefore as absolutely true, the verdict was manifestly correct, and any other would have been clearly against the law and the facts.

Affirmed.