64 Miss. 761 | Miss. | 1887
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
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 dis
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.
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, 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
The judgment is affirmed.