Windham v. State, 45 So. 861

Windham v. State

45 So. 861 | Miss. | 1907

Calhoon, J.,

delivered the opinion of the court.

This is an exceedingly close case on the facts. It seems to us very doubtful whether the shot fired by-the appellant was the shot which killed the deceased, Saloney Ainsworth. It appears to us from this record that the father of the deceased commenced the difficulty by a deadly assault on appellant, and that his family and adherents were near by, and that he and appellant, Windham, were in this deadly encounter, brought on by Coon Ainsworth, the father of the deceased, when the father of the appellant.called, “Look out, Anse! Saloney is coming on you with a knife,” when the appellant turned and shot his pistol, either under or over his arm, to the rear in the direction of deceased. About the same time, and as witnesses for defense and one for state testify, before the appellant shot, other shooting occurred towards where the accused was, when at that time, or about that time, there was a regular fusillade of shots. Some of the witnesses testify that the shot fired by appellant *851did not kill Saloney Ainsworth. It is testified to that the pistol firing was like the bursting of pop-corn. Suffice it to say that a verdict of murder, for which appellant was indicted, would not in our opinion, be sustained by any court. In this situation, on trial, the district attorney in his concluding argument was permitted to say: “ The jury should keep in mind the fact that, should they find the defendant guilty of manslaughter, the law allows the judge in his discretion to punish him in one of two ways, either by fine and jail sentence, or by a term in the penitentiary, a maximum of which, as fixed by the law, I do not now recall.” In a case like this such language was wholly inadmissible. It was a very plain bid for a conviction of manslaughter, under the indictment for murder, and the jury accordingly so found.

We think, on the facts of this particular case, instruction No. 2 for the state is too narrow. It confines the right of the defendant to shoot to the existence at that time of immediate danger, “ real or apparent,” of loss of life or of great bodily harm at the hands of said Saloney Ainsworth. In view of the testimony of the defense and some of the testimony for the state, this hardly suits the situation. It will be observed that the father and the son both threatened the life of appellant. They had gone to his house and told his wife that they intended to kill him. They had threatened to kill him on the very day when the shooting took place. A deadly assault was made upon him by the father, and, pending that life and death struggle between the appellant and the father, appellant’s father called out that Saloney was coming on him with a knife. It was therefore instinctive for appellant to do what he did do — hold the father with the left hand and momentarily turn and shoot under his arm or over his arm in the direction of Saloney Ainsworth. Therefore, in this mortal conjuncture, the danger may have seemed, and properly seemed, to appellant very great and impending at the time he shot. But the instruction confines the jury to the fact of the actual existence of real or apparent *852danger at the very time of the shot. Witnesses for the defense sustain the view that it was actually impending and apparent from the acts of Saloney Ainsworth. Witnesses for the state say it was not. But it is none the less true that, in the situation in which the accused found himself, the jury should have been informed that if in his place there was reasonable ground to apprehend danger, and he did apprehend it, he might shoot in what he thought necessary self-defense, and in this connection, and in this sort of a case, we think instruction No. 7 should not have been refused the defendant, which instruction was to the effect that, in passing on defendant’s action at the time, the jury should not hold him to the same cool and correct judgment which they are able to form, but should put themselves in his place and judge of his acts by the facts and circumstances by which he was surrounded.

In the same connection, we think the accused was entitled to his instruction No. 6, which the court refused to give, which is: “ That if there are two plausible theories arising out of the evidence in this case, and one tends to prove that bystanders from the storehouse gallery killed Saloney Ainsworth, and the other theory tends to show that Anse Windham killed Saloney Ainsworth, and if the jury are unable to determine from the evidence which of the two theories is true, they must accept that theory most favorable for the defendant and find the defendant not guilty.”

We decide no other questions.

Reversed and remanded.