Wood v. State

| Miss. | Apr 15, 1887

Cooper, C. J.,

delivered the opinion of the court.

The indictment charged that the appellant, on the 26th day of July, A. D. 1884, “in and upon one Socratus Scott,did unlawfully make an assault, and the said Wellington Wood, with a certain deadly weapon, to wit, a knife, did then and there strike, beat, cut, and wound the said Socratus Scott, with the intent him, the said Socratus Scott, then and there feloniously, willfully, and of his malice aforethought to kill and murder, etc.”

Objection is now made that the indictment failed to charge that the appellant “feloniously” made the assault. The objection is untenable. Archbold’s Criin. Pldg. and Prac. 929 ; Wharton’s Precedents 242 ; Gilon v. The State, MS. opinion, Book J. 519 ; Bishop’s Directions and Form 558.

It appears in evidence that the name of the injured party was Marion Socratus Scott, and that he was generally known and called by the name of “ Crate ” Scott, and it is contended that this was a fatal variance for which the conviction must be set aside. It is too late to raise the objection. If the point had been made in the court below it would have been competent for the court to have directed an amendment according to the name proved. Code of 1880, § 3081.

The defendant not having interposed his objection in the court below, cannot now be heard to complain. Code of 1880, § 1433.

The court should have excluded from the jury the evidence of the witness Joe Scott, that the hogs of the defendant had not been marked by the Scotts. It was in reference to a matter collateral to the issue as tried before the jury, and should not have been lugged into the case. We doubt not this would have been done upon the application of the defendant.' It is true that usually a defendant has the right to cross-examine a witness upon matters drawn out upon direct examination even though they be collateral in their character; but we do not think a i*efusal to permit this to be done must necessarily operate to reverse the judgment. Inthe progress of trials much immaterial and irrelevant testimony falls from the lips of willing witnesses, and it is impossible to anticipate and avoid it. But it would extend the examination over too broad ground to make it fatal error to close the inquiry, where no harm can be done the defendant by so doing. If there was anything in this record, which indicated that the State had invoked against the appellant responsibility for all that occurred in the affray because he began the difficulty, a different question would be presented, since under such circumstances the denial of the right of cross-examination might have resulted in injury to the defendant. But there is nothing in the instructions for the State invoking that proposition, and the many instructions given for the defendant, clearly and without reservation, gave him the benefit of the rule of self-defense. He was tried and convicted for having stabbed his antagonist when in no real or apparent danger; that he would have been justified in stabbing if at that time he was in danger, real or apparent, the jury was distinctly informed, and this being true it is wholly immaterial who was the aggressor in the commencement of the difficulty. If Scott began the fight and the appellant, when not in danger, stabbed him, he is guilty of either an assault and battery with intent to commit murder or manslaughter, both of which are included in the indictment preferred against him, and are punishable to the same extent. Code of 1880,§ 2711.

The sole effect of a cross-examination of this witness would have been to palliate the fault of the appellant, if fault there was, in beginning the difficulty; if he was blameless in that respect he was nevertheless guilty under the law. if, as the jury has found, he cut his antagonist with a deadly weapon when not in danger, real or apparent.

Careful and repeated examinations of the instructions fail to discover any fault of which the appellant can complain. There is a darkening of counsel with many words, but many of the instructions for the State are mere truisms, and none are erroneous.

The first instruction for the defendant was properly refused for the reason that by other instructions the right of self-defense had been fully recognized as existing under the law of the land; the court was not called upon to deduce it from a “law of nature.”

The second instruction, which was refused, is almost an exact copy of the twenty-first, which was given.

The fourth instruction for defendant was properly refused; insulting words may be given in evidence in justification for an assault and battery. Code'of 1880, § 3080.

We do not understand what principle was intended to be announced by the twelfth instruction asked by defendant. If it was for the purpose of invoking the rule of a reasonable doubt, it was properly refused because already given ; if it intended to inform the jury that it must convict of the identical offense charged or acquit, it is incorrect as a proposition of law, since the defendant might have been convicted of an assault and battery or an assault.

The thirteenth instruction for defendant announced no rule of law properly applicable to any facts proved or attempted to be proved.

The fifteenth instruction was properly refused for the reason that it assumes the existence of evidence proving or tending to prove a killing by “accident or misfortune.” It would not be correct in any case where death resulted from the use of a deadly weapon. Code of 1880, § 2879.

The twenty-second instruction was rightly refused because not applicable to any facts in evidence.

We would have preferred that the twenty-third instruction had been given, but, as we have said, the right of the defendant to defend himself has been so clearly charged in others given for him that we cannot perceive the injury that followed its refusal.

We find no fault with the action of the court in giving additional instructions for the State after the argument had proceeded. If we understand the position of counsel for appellant it is this : that the court cannot obviate the effect of the argument of counsel for defendant by telling the jury what the law is upon the points ■pressed in argument. . The reply is that if the counsel correctly state the law his argument will be supported by the law as given by the court; if it be incorrectly stated by him it is right that the jury should be told in this manner that the law is not as stated.

By the sixteenth instruction the defendant asked the court to charge the jury that, “ no consideration of feeling or sympathy for the injured person or his family or relatives should control the jury, or weigh with them in determining from the evidence, whether the defendant was justifiable in inflicting the injury.” While counsel for the accused was arguing this instruction to the jury, (and we doubt not pressing it for its full value), the district attorney converted it into a Grecian horse by inserting into its belly the suggestion, that the jury should be equally uninfluenced by sympathy for the defendant or his family or relatives. On his motion the court amended the instruction so that it read as follows : " No consideration of feeling or sympathy for the injured person or the defendant or family of either or relatives should control the jury, etc.”

The danger of inviting the attack which followed this instruction must have suggested itself to counsel. The appellant cannot complain of the very obvious reply that was made.

We find nothing in the argument of the attorney for the State that necessitates a reversal of this judgment. Since the decision of this court in the case of Martin v. The State, 63 Miss. 505" court="Miss." date_filed="1886-04-15" href="https://app.midpage.ai/document/martin-v-state-7986353?utm_source=webapp" opinion_id="7986353">63 Miss. 505, in which the judgment was reversed because of the statement of a material fact, not proved, by counsel for the State in his argument, we have scarcely had an appeal in a criminal case in which it has not been urged that a reversal should be ordered, because of the unwarranted arguments used by the representatives of the State. In none of the subsequent cases have we found it proper to reverse on the ground indicated, but we must say that in many of them there has been a latitude permitted beyond the necessity of legitimate argument. We take this occasion of calling attention to the fact for the reason that what was said in this case was, so far as it was improper, manifestly inadvertent and not intended to prejudice the accused, and our criticism of the practice will not be construed into a personal reflection on the officer. The impression seems to prevail that district attorneys, because of their official character, are entitled to greater liberty in argument than is allowed to other counsel in other éases, and that the power of the court cannot be exercised to restrain them in their method of eliciting testimony or of presenting the case in argument. This is a mistake-; district attorneys have no more extended rights than have other counsel, and are as subject to restraint by the court as the humblest member of the bar. No different rule in this respect should be applied to them than is applied generally.

The judgment is affirmed.