Opinion
No. 37651.
November 6, 1950.
1. Criminal procedure — instructions — assault with intent — element of intent.
The fact that an instruction for the State in a prosecution for assault with intent to kill, which attempted to set forth the essential elements of the offense to be proved, omitted the element of intent does not require a reversal, when two instructions for the defendant, not contradictory of the State's instruction, but to be read as supplementing it, informed the jury that they could not convict the accused unless they found from the evidence that he intended to kill his adversary in the difficulty.
Headnote as approved by Holmes, C.
APPEAL from the circuit court of Holmes County; ARTHUR JORDAN, Judge.
S.R. King and Calvin King, and Forrest B. Jackson, for appellant.
I. The verdict is against the overwhelming weight of the evidence and is contrary to law. Heflin v. State, (Miss.) 178 So. 594; Ashford v. State, (Miss.) 6 So.2d 471.
II. The court erred in granting the State's instruction No. one. Sec. 2011 Code 1942; Earl v. State, 168 Miss. 124, 151 So. 172; Jeff v. State, 37 Miss. 321; Hairston v. State, 54 Miss. 689, 28 Am. Rep. 392; Herring v. State, 134 Miss. 505, 99 So. 270; Lott v. State, 130 Miss. 119, 93 So. 481; Norwood v. State, 182 Miss. 898, 183 So. 523; Harper v. State, 83 Miss. 402, 35 So. 572; Hawthorne v. State, 58 Miss. 778; Collins v. State, 71 Miss. 691, 15 So. 42; Josephine v. State, 39 Miss. 647; Owens v. State, 80 Miss. 499, 32 So. 152; Murphy v. State, 89 Miss. 827, 42 So. 877.
III. The court erred in refusing to give the appellant's requested instructions Nos. fourteen and fifteen. 26 Am. Jur. 273, Sec. 172; Ayers v. State, 60 Miss. 709.
IV. The court erred in refusing to give the appellant's requested instruction No. sixteen. 26 Am. Jur. 251, 253, Secs. 138, 140; Scott v. State, 203 Miss. 349, 34 So.2d 718; Hood v. State, (Miss.) 27 So. 643; Johnson v. State, 79 Miss. 42, 30 So. 39.
Joe T. Patterson, Assistant Attorney General, and Edwin White, for appellee.
This case comes under the rule announced by this Court in Blaine v. State, 196 Miss. 603, 17 So.2d 549, and referred to with approval in the case of Bailey v. State, 31 So.2d 123, 201 Miss. 221.
I call the Court's attention to two instructions granted the appellant, appearing on pages 170 and 171 of the record. Both of these instructions instructed the jury that if they did not believe from the evidence that the defendant intended to kill that they should find him not guilty. Had the court refused the defendant these two instructions, the appellant's contention on this point might be well-taken.
In the case of Bone v. State, (Miss.), 41 So.2d 347, the Court held: "In the case at bar the defendant did not request any instruction defining the essential elements of the crime of murder, which he could have done had he so desired. It is not encumbent upon the state to request such instruction, and this court has never so held. The instruction complained of was proper, and the court did not err in granting it."
A reading of the seventeen instructions granted the appellant discloses that the jury was instructed on every phase of the law in the case, and the facts as shown by the record.
The refused instruction No. sixteen virtually instructed the jury that the defendant was the judge of what was necessary and the means to be used for his own protection, and that his judgment was controlling.
This Court has repeatedly held on this question, in a long line of decisions, beginning with Wesley v. State, 37 Miss. 349; "A party may have a lively apprehension that his life is in danger and believe that the ground of his apprehension is just and reasonable; but if he act upon them and take the life of a human being, he does so at his peril. He is not the final judge, whatever his apprehension or belief may have been of the reasonableness of the grounds upon which he acted."
This is an appeal from a conviction of the appellant on an indictment, which, omitting the formal parts, charged as follows: "That C.A. Knott late of the County aforesaid, on the 27 day of June, in the year of our Lord, 1949, in the County aforesaid, with a certain deadly weapon, to-wit, a knife, in and upon one C.S. Barber, a human being, unlawfully, wilfully, and feloniously, an assault did then and there make, and him, the said C.S. Barber, with the said deadly weapon did then and there cut and wound in the unlawful and felonious attempt him the said C.S. Barber unlawfully and feloniously to kill and slay against the peace and dignity of the state of Mississippi."
The prosecution was based on Section 2011, Mississippi Code of 1942, the pertinent provisions of which are: "Every person who shall be convicted of shooting at another, or attempting to discharge any firearms or air-guns at another, wilfully; or of any assault or assault and battery upon another with any deadly weapons . . ., with intent to kill and murder . . . such other person; or in the attempt to commit any murder, . . . manslaughter . . ., or other felony; . . . shall be imprisoned in the penitentiary not more than ten years, or shall be punished by a fine of not more than one thousand dollars, or by imprisonment in the county jail not more than one year or by both."
The appellant complains, (1) that the judgment of conviction is contrary to the overwhelming weight of the evidence, and, (2), that there was fatal error in the one and only instruction granted to the State, and, (3), that the trial court erred in refusing certain instructions requested by the appellant.
The evidence in this case was conflicting and clearly presented an issue for the jury, and we are not warranted in saying that the verdict of the jury is contrary to the overwhelming weight of the evidence.
It is contended on behalf of the appellant that the one instruction given to the State was erroneous in that in informing the jury of the essential elements of the offense to be proved, it failed to include the element of intent. The instruction is as follows:
"The court instructs the jury for the state that if you believe from the evidence beyond a reasonable doubt that the defendant unlawfully, wilfully, and feloniously made an assault on C.S. Barber with a deadly weapon, to-wit, a knife, and did unlawfully and feloniously cut said C.S. Barber with said knife, without authority of law and not in necessary self-defense, real or apparent, in the attempt unlawfully and feloniously to kill and slay said C.S. Barber, then it is your duty to find the defendant guilty as charged in the indictment, even though you further believe that the defendant in so cutting C.S. Barber, if such he did, acted without malice, but in the heat of passion.
"The court further instructs the jury that if you find the defendant guilty as charged in the indictment, the form of your verdict shall be `We the jury find the defendant guilty as charged in the indictment'."
(Hn 1) It is not necessary to pursue the appellant's objection to the foregoing instruction further than to say that any objection to the instruction upon the ground that it failed to include the element of intent was fully met by two instructions given to appellant, both of which informed the jury that they could not convict the appellant unless they found from the evidence that he intended to kill his adversary in the difficulty. These two instructions for the appellant were not in conflict with or contradictory of the State's instruction, but supplemented it. The instructions read together could have left no doubt in the minds of the jury as to the elements of the offense necessary to be proved in order to convict him.
We have carefully examined the instructions refused to the appellant, and are of the opinion that there was no prejudicial error in the action of the trial court in refusing them. It follows that the judgment of the court below must be affirmed.
Affirmed.
The above opinion is adopted as the opinion of the Court, and for the reasons therein indicated the case is affirmed.