Opinion
No. 34383.
March 10, 1941.
HOMICIDE.
In murder prosecution, giving of instruction regarding defendant's right to plead self-defense if defendant provoked the difficulty was error where there was no evidence that defendant provoked the difficulty but evidence was without any material conflict that difficulty was provoked by deceased.
APPEAL from the circuit court of Leake county, HON. PERCY M. LEE, Judge.
James O. Eastland, of Ruleville, for appellant.
There was no evidence that appellant provoked a difficulty with her husband and that she procured a weapon for overcoming opposition if necessary on the part of the deceased.
There can be no question but that under the law if appellant reasonably believed that the deceased was going after the gun to return and kill her, and which he was, she had a right to follow him. The instruction in question has been condemned in a long line of authority since Mississippi was admitted to statehood; in fact, it deprived the defendants of the right of self-defense, and there is no evidence on which to predicate such an instruction, and is an attempt to instruct the defendant into the penitentiary in the absence of testimony.
The instruction in question was misleading, beclouded the issue, was erroneous, and deprived appellant of her rights under the law.
Geo. H. Ethridge, Assistant Attorney-General, for appellee.
The trouble about this instruction is that it puts the hypothesis that the appellant provoked the difficulty with her husband and procured the weapon for the purpose of overcoming opposition, if necessary, on the part of the deceased. I do not think the evidence warrants the idea that the appellant provoked the difficulty and that she procured the gun for the purpose of overcoming opposition, if necessary, but the evidence does warrant the jury in finding that she pursued the deceased, armed with a gun, for the purpose of killing him. She would not be entitled, without abandoning the difficulty, to kill him under that circumstance, unless she said or did something to show him that she was not intending or trying to kill him.
The evidence, so far as showing how the difficulty arose, tended to show that the deceased provoked the difficulty, and beat up the appellant, which would probably be sufficient to so arouse her passion that she killed him in the heat of passion rather than in a premeditated sense. The jury were warranted by the evidence in so finding and the verdict of manslaughter was, of course, proper on the evidence, and the appellant cannot complain of a conviction where the evidence was sufficient to sustain the findings of the jury. If she had been convicted of murder, there would be serious difficulty with this instruction but as she was convicted of manslaughter and the proof is undisputed that she pursued the deceased to the place where he was killed and there killed him, she would not be entitled to an acquittal even on her own testimony.
The state should not undertake to instruct a person into the penitentiary but in reviewing the action of the state in requesting this instruction and the court in granting it, even though it was improper to grant it, it is not prejudicial on this appeal because, under the facts disclosed, the appellant was not entitled to shoot the deceased under the circumstances, and the killing was unlawful.
Miss. Digest Annotated, Title "Homicide," Key No. 112-115; Bobbs-Merrill Miss. Digest, Title "Homicide," No. 112-113.
Appellant was indicted and tried on a charge of murdering her husband and convicted of manslaughter and sentenced to the penitentiary for the term of ten years. From that judgment she prosecutes this appeal.
Among the instructions given for the state was the following: "The court instructs the jury for the State that if you believe from the evidence in this case beyond reasonable doubt that the defendant Louberta Thompson, at a time when she was not in any immediate danger, real or apparent, of losing her life, or suffering some great bodily harm at the hands of Emmett Thompson, armed herself with a shotgun for the purpose of provoking a difficulty with Emmett Thompson and overcoming opposition, if necessary, and that said Louberta Thompson did then and there evoke a difficulty with Emmett Thompson and did then and there engage in such difficulty, in which the said Emmett Thompson was killed, then the defendant cannot plead self-defense."
The giving of this instruction was assigned and argued as error. It had no place in the case and was calculated to be very harmful to appellant. There was no evidence whatever that appellant provoked the difficulty. On the contrary, the evidence was without any material conflict that it was provoked by the deceased. We think it would probably be beneficial to the bench and bar of the state to remind them of what the Court said about such an instruction in Lofton v. State, 79 Miss., 723, 31 So. 420, 421: "This form of charge, declaring a defendant estopped to plead self-defense, is an exceedingly unwise one to be given. We have repeatedly condemned it, as shown by cases cited in the very able brief of counsel for appellant. It can never be proper, save in the few, very, very rare cases where the case is such, on its facts, that a charge can be given embracing all the elements — not part of them, nor nearly all of them — essential to the estoppel. The old paths are the safe paths. The juries of the country can be safely trusted to find any defendant guilty whose case is really so bad as to estop him to plead self-defense, without resort — dangerous and unwise — to the metaphysical subtleties necessarily involved in the preparation of a proper charge of that sort. Once more we repeat (hoping that `here a little and there a little, line upon line, and precept upon precept' may at last do their work) that if prosecution will ask few and very simple charges, and trust more to the common sense and sound judgment of the juries of the country, they will expose their circuit judges to far less risk of reversal, secure just as many convictions, and have far — very far — fewer cases reversed."
Reversed and remanded.