54 So. 66 | Miss. | 1910
Lead Opinion
delivered the opinion of tbe court.
Eugene Waldrop -was indicted in tbe circuit court of Copiah county for tbe killing of one Lee Crawford some time during tbe year 1910. Tbe indictment was only for manslaughter, and tbe trials resulted in tbe conviction of Waldrop, who was given a five-year sentence intbe penitentiary, and appeals.
A lengthy statement of tbe facts is unnecessary, since tbe questions raised chiefly arise out of alleged error-in tbe instructions. It appears tbat Lee Crawford, deceased, gave a dance at bis home one Saturday night, towbicb a large crowd came, including Eugene Waldrop,, tbe appellant, and bis brother, Charley. During the evening Charley Waldrop became involved in some altercation, or dispute, either at Crawford’s gate, or in tbe road near tbe gate, and at tbe time Charley Waldrop was, in tbe dispute it seems tbat Crawford was there, or went
It further appears from the record that deceased was a much larger and stronger man'than appellant; that deceased weighed about one hundred and eighty or one hundred and ninety pounds, and was a man of unusual strength, whereas appellant was weakly and. weighed from one hundred and thirty-five to one hundred and fifty pounds. The reason for this statement will appear when we come to consider the instructions. It is not amiss to state here that the court granted sixteen instructions for the appellant, and an inspection of the instructions conclusively shows that the appellant received the benefit of every possible legal phase of the case. Crawford was slain at his own home, while trying to quell a disturbance occurring at a dance given by him in his home; and he was unarmed so far as this record discloses. He was killed while using his fists in resenting •one of the grossest insults one can offer another. This was the state’s testimony, and this was what the jury Relieved from that testimony. Under the facts of this
The first error assigned by counsel for appellant,, .which we shall notice, is the refusal of the court to grant six instructions asked for on the part of appellant. In connection with this assignment of error, all instructions given for appellant must be considered. One of the instructions refused was a peremptory instruction to-' find for defendant, and that this instruction should have been refused is so apparent, we shall not discuss- it at all. The principle which controls us in the consideration of the instructions in this case which were refused by the court is to be found in the case of Mabry v. State, 71 Miss. 716, 14 South. 267, wherein this court has said: “Where the court in any-case has given the first six, eight, or ten instructions asked by a party, and- refused any more, we will not consider errors assigned as to such refused instructions, unless- it shall appear that the jury were not furnished a sufficient guide for their proper determination of the case. The courts have just as much right to limit instructions to a proper number as they have to limit argument within proper bounds, and it should be done, with proper caution to avoid injustice, and they will be sustained in this course by this court by its refusal to consider errors predicated of the refusal of the trial courts to grant an unnecessary and unreasonable number of instructions, whereby jurors are confused often, and judges entrapped into error after being wearied with attention to the many instructions preceding, and much valuable time is wasted by counsel and judges in disposing of the case.”
We will first consider the instructions given for appellant which in our judgment embody the same principles sought to be- announced in the refused instruction's. Thus,"
The refused instructions on this line are instructions Nos. one, two, and three. These refused instructions merely repeat in a little different phraseology the law .given in the instructions above referred to, and should have been refused. Thus, instruction No. one, refused, tells the jury that if they believe from the evidence the deceased was a much larger and stronger man than defendant, so much so that the defendant was wholly and absolutely incapable of coping with him in physical combat, and was liable- to receive serious and great bodily injury,at the hands of deceased while engaged in such combat, then the defendant was justifiable in using a deadly weapon to defend himself from an unjustifiable and deadly attack from deceased, even though deceased was wholly unarmed and defendant was in no danger from deceased, except such as might be inflicted with his hands and feet. The second instruction, refused, tells
We are not to be understood as indorsing these refused instructions; but we simply say that, if correct, they merely duplicate the principle already announced, and ought on that account to have been refused. It is readily seen that every principle contended for in the refused instructions was announced in the instructions given for appellant. The instructions are to be considered as a whole. Reed v. Y. & M. V. R. Co., 94 Miss. 639, 47 South. 670; Lewis v. State, 93 Miss. 697, 47 South. 467.
The giving of instructions Nos. eleven and thirteen made the refusal of instructions Nos. four and five proper. The principles sought to be announced by refused instructions four and- five are fully covered by instructions Nos. eleven and thirteen given for appellant. Thus, instruction No. eleven, given for appellant, tells
Instruction thirteen, given for appellant, tells the jury that if at the moment defendant stabbed deceased it reasonably appeared to him that deceased was about to choke him to death, and defendant so believed, then defendant had a right to kill deceased and the jury should acquit. Instructions four and five, refused, practically embody the same idea, and should have been refused.
It is next insisted that the coart erred in giving instruction No. one for the state, which is as follows, viz.: “The court instructs the jury, for the state, that you are the sole and only judges of the credibility of witnesses in the case, and you may disbelieve any witness in the case, provided you believe from the testimony that such witness has not sworn truthfully. In determining whether you will believe or disbelieve any witness, you may take into consideration the interest, if any, the witness may have in the trial of the case, .together with all the facts and circumstances in the case.” Counsel for appellant contended, that this instruction is fatally erroneous for two reasons, the first of which we shall 'now notice. Counsel, contended that under this instruction the jury are given the right to arbitrarily reject the testimony of any witness. It is argued, further, that this instruction is fatally erroneous, .because
In the case of Riley v. State, 75 Miss. 352, 22 South. 890, the instruction condemned was quite different from the instruction in this case. In the Eiley case the court told the jury that “you are the sole judges of the weight of the testimony and the credibility of the witnesses, and you may, if you think proper to do so, disregard the testimony of any witness, if for any reason you may believe such testimony untrue;” and the court said, “the charge was too broad. By it the jury was authorized to disregard the testimony of any witness, if for any reason the jury believed it to be untrue. By the terms of the instruction the jury was authorized to disregard the testimony of any witness, if for any reason, even though undisclosed on the trial and not connected with the evidence laid before them, and not growing out of the manner of the witness on the stand or his interest in the result of the trial, or because of successful contradiction or impeachment, the jury believed the testimony untrue. This is not the law, never has been, and, it is to be hoped, never will be. If the instruction be taken at its face value, and held to mean what its terms declare, then the jury was warranted in discrediting and disregarding the evidence of the defendant, if for any reasons, known to themselves privately and personally, they believed his testimony to be untrue. This would be to try a defend
The instruction here merely tells the jury that they may disbelieve any witness, provided they believe from the testimony, that such witness has not sworn truthfully. Surely this is good law. Surely this instruction announces only the sworn duty imposed by law on the jury. The Riley case, supra, impliedly indorses this very instruction. The case of Railway v. Tate, 70 Miss. 348, 12 South. 338, has no application. In that case the court merely held that where the testimony of the only witness for defendant is uncontradicted, and not improbable or unreasonable, it is error to give an instruction that, if any witness has knowingly testified falsely in a material matter, the jury may disbelieve the witness. No witness in this case was the sole and uncontradicted witness in the case, and the instruction in the above case was a different instruction from the one now under review. The case of Myrick v. Wells, 52 Miss. 149, is without any pertinency to any question involved in this case, so far as we can discover, and we therefore see no purpose to be accomplished by a discussion of it.
It is next insisted that the first instruction given for the state is also totally erroneous, because a misapplication of the falsus in uno, falsus in' omnibus doctrine; that the instruction fails to put in the qualifying words that such witness “willfully,” or “knowingly,” or “corruptly” swore falsely; and the cases of Bell v. State, 90 Miss. 104, 43 South. 84; Railway Co. v. McCoy, 85 Miss. 391, 37 South. 706; Railroad Co. v. Hedrick, 62 Miss. 28; White v. State, 52 Miss. 216; Finley v. Hunt,
The only other assignment of error, which we care to discuss is that which takes exception to the action of the court in granting the fourth instruction for the state. That instruction is as follows, viz.: ‘ ‘ The court instructs the jury, for the state, that the great bodily harm sufficient to justify killing in this case does not mean mere bruises inflicted by hands and fists.” Counsel for appellant urge that the giving of this instruction is fatal error and must cause a reversal, citing the case of Hill v. State, 94 Miss. 391, 49 South. 145, as authority. This instruction was not denounced by the Hill case, supra, and as an abstract proposition of law is undeniable. The
The other questions raised by appellant we deem' unnecessary to discuss, and the case is affirmed.
Affirmed.
Dissenting Opinion
(dissenting).
I dissent from the majority opinion. In my judgment this is a typical case for the application of the principle that, a person being assaulted by another much larger and stronger than himself, and capable of inflicting great bodily injury with his hands and feet, or either such person so assaulted is justified in using a deadly weapon to protect himself, though the assaulting party is unarmed. Deceased knocked appellant down, and according to the latter’s testimony, which is practically undisputed, was on top of him, choking him, beating him in the face, and gouging him in the eyes, when appellant stabbed him with his knife, which he got out while down,
By the first instruction for the state the jury were told that they were the- sole judges of the credibility of the witnesses, and could discard the testimony of any witness, if they believed from the testimony that such witness had not sworn truthfully. The majority opinion approves this instruction, holding that it does not embody the falsus in uno, falsus in omnibus doctrine. It appears to me to be more vicious even than the instructian condemned in Bell v. State, 90 Miss. 104, 43 South. 84; Railway Co. v. McCoy, 85 Miss. 391, 37 South. 706;