Summary
In Tucker v. Gurley, 176 Miss. 708, 721, 170 So. 230, 232 (1936), it was not error to grant a change of venue in an action for a wrongful killing by deputy sheriffs to a county other than that of the deputies' residence.
Summary of this case from Maxwell v. Illinois Central Gulf R.ROpinion
No. 32323.
October 19, 1936. Suggestion of Error Overruled November 30, 1936.
1. VENUE.
Statute giving public officer sued out of county of his residence the right to have venue changed to county of his residence held not to prevent full operation of statute providing for change of venue, or to confer any different right from that granted to any other Mississippi citizen sued in nonlocal action out of county of his residence (Code 1930, sec. 495).
2. VENUE.
Purpose of 1926 amendment to venue statute giving public officer sued out of county of his residence the right to have venue changed to county of his residence was to guarantee to public officer the right to remove suit to county of his residence, notwithstanding that surety on his official bond might be found doing business in county where suit was originally filed (Code 1930, secs. 495, 500).
3. VENUE.
Change of venue statute was intended to provide method by which fair and impartial trial could be obtained whenever on account of undue influence of adverse party, prejudice in public mind, or other sufficient cause, a fair and impartial trial could not be obtained in county in which venue was originally fixed (Code 1930, sec. 500).
4. VENUE.
Court should grant change of venue whenever conditions arise which, by virtue of change of venue statute, authorize change of venue (Code 1930, sec. 500).
5. VENUE.
Change of venue of action for wrongful killing by deputy sheriffs, to county other than county of deputy sheriffs' residence, held not error (Code 1930, secs. 495, 500).
6. APPEAL AND ERROR.
Instructions limiting right of deputies to act in self-defense to existence of actual danger of losing their lives or suffering great bodily harm at hands of deceased held reversible error as excluding right of deputies to act on reasonable appearances and to defend themselves against apparent danger, notwithstanding general instruction that killing of deceased was justified if officers had reasonable ground to believe that one of deputies was in danger of death or was suffering great bodily harm at hands of deceased.
7. EVIDENCE.
In action for wrongful killing by deputy sheriffs, testimony that handcuffs were placed on deceased held admissible as res gestae where placing of handcuffs was closely connected with principal facts and was done before deceased had fallen, and at a time when it was not known and could not have been known that he was fatally wounded.
8. DEATH.
In action for wrongful killing by deputy sheriffs, refusal to permit question seeking to show that within twelve months prior to shooting deceased had threatened officer present at killing but not object of alleged assault by deceased persons held not error.
9. ABATEMENT AND REVIVAL.
Trial of case without its revival or dismissal as against deceased party held not error where cause was revived in Supreme Court against deceased party's administrator, who thereafter continued as a party to the suit in subsequent proceedings.
APPEAL from circuit court of Union county. HON. T.H. McELROY, Judge.
L.A. Smith, Sr., of Holly Springs, for appellants.
It has long been the law, and obviously it should be the law, that where there are both parties corporate and individual to a lawsuit the corporation should not be permitted to be singled out for attack, or undue emphasis be permitted to be put upon the liability of a corporation, especially where the judgment would be joint, as in this case. It is common knowledge that when this corporation is an insurance company and its bond or policy is being sued on, so that jurors gain the impression or feeling that the individuals will not have to pay any judgment they may render, but it will fall upon the insurance corporation to pay, and that having received a premium for this service it is natural justice that they be required to pay, regardless of the merits of the controversy, and that therefore not justice but a mistaken idea of compensation prevails in the minds of jurors, and a fair trial is impossible.
Herrin v. Daly, 80 Miss. 340, 31 So. 790, 92 Am. St. Rep. 605.
Subject to the exception that the fact of indemnity may be shown in the record by the pleadings and the exhibit of the obligation where the insurance company is a party to the trial, it is held generally to be highly improper for plaintiff to inject such matter into the case and before the jury either directly or indirectly, more particularly, where his action is willful or without legitimate cause, as, for example, through questions by his counsel on examination or cross examination, or by offers of proof, or through the arguments of his counsel.
64 C.J., 105, sec. 111; Rosummy v. Marks, 246 P. 723, 118 Or. 248; International Co. v. Clark, 127 A. 647, 147 Md. 34.
This judgment is void in its entirety, for a judgment against two or more parties defendant is an entirety and if void against one is void against all.
Comentz v. Bank of Commerce, 85 Miss. 662, 32 So. 35; Graves v. Williams, 10 Miss. 286; Ayer v. Bailey, 8 Miss. 688; Demors v. Camp, 6 Miss. 516.
A judgment rendered against a party after his death is utterly void and subject to collateral attack.
Weiss v. Aaron, 75 Miss. 138; Richter v. Reaumont, 71 Miss. 713, 16 So. 293; Young v. Pickens, 45 Miss. 553; Tarleton v. Cox, 45 Miss. 430; Miss. R. Co. v. Wynne, 42 Miss. 315; Parker v. Home, 38 Miss. 215; Lee v. Gardner, 26 Miss. 521.
A judgment erroneous as to one defendant is so as to all.
Mhoon v. Colment, 51 Miss. 60.
I submit that the admission of the evidence of putting handcuffs on Glenn Gurley in a suit for the killing of Lloyd Gurley violates two rulings by the trial court on objections by appellants to the injection of such testimony, those against under prejudice and confusion of issues, and that such evidence was not relevant or competent in this case. It was, of course, used to prejudice the jury against the defendants in this case, although the handcuffs remained on him just a very small time, and were immediately removed by Deputy Overton on the request of Glenn Gurley that they be removed. The defense should not have been prejudiced and handicapped in the trial of this case, and their efforts to get a fair trial, by admitting such evidence in this particular case.
The court gave these two instructions for the plaintiff:
"The court charges the jury for the plaintiff that while it is true that the burden is upon the plaintiffs to prove every material allegation of the declaration, this does not mean that every material allegation must be proved beyond all reasonable doubt, but only by a greater weight of the evidence; and if the jury after considering all the evidence in the case and the instructions of the court are satisfied that at the time Lloyd Gurley was killed the defendants were not in actual danger of losing their lives or suffering some great bodily harm at the hands of Lloyd Gurley, the jury should find its verdict for the plaintiffs."
"The court charges the jury for the plaintiff that if a misdemeanor is committed in the presence of or against the person of an officer, the officer may arrest said disdemeanant without a warrant, but the law does not justify the taking of the life of a misdemeanant for the commission of a misdemeanor in the presence of or against the person of an officer, and if the jury believes from all of the evidence in this case that Lloyd Gurley was shot and killed by the defendant Overton for the commission of a misdemeanor against the person of Deputy Tucker, at a time when said Tucker and Overton were not in actual danger of losing their lives or of suffering some great bodily harm at the hands of Lloyd Gurley, then the jury should find for the plaintiffs."
These two charges take away in a great measure the right of self defense, against reasonably apparent danger entirely.
The entire defense is based upon the right of self-defense by Tucker, and defense of Tucker by Overton in the case of Lloyd Gurley, and yet these instructions are not correct guides to the jury, further, because they omitted to save to Overton the right to shoot in defense of the life or body of Tucker, on reasonable appearances of imminent and impending danger to Tucker from the attack of Lloyd Gurley. This element of the case is cut out.
However, the real vice in these instructions is instructing the jury that the danger must have been actual to justify self defense or defense of each other by the Deputies Tucker and Overton.
Blaylock v. State, 31 So. 105, 79 Miss. 517.
The defendant in any particular case judges at his peril, and takes the risk of the juries finding that judgment to be reasonable, such an apprehension as a man of average courage would, under the circumstances, have entertained. These charges took away from those defendants the right to have the jury pass on whether their "judgment was reasonable," because they told the jury the danger must be actual.
Patterson v. State, 23 So. 647, 75 Miss. 670; Elerbee v. State, 30 So. 57, 79 Miss. 10.
Our Supreme Court has condemned these instructions definitely, positively and unequivocally in the case of Goodwin v. State, 19 So. 712, 73 Miss. 673.
Johnson v. State, 30 So. 79, 79 Miss. 42; King v. State, 23 So. 766; McCrory v. State, 25 So. 671; Waller v. State, 44 So. 825, 91 Miss. 557.
Where one's life is in real or apparent danger at the hands of another, and he believes it, he has a right to shoot to kill.
McNeal v. State, 76 So. 625, 115 Miss. 678; Boykin v. State, 38 So. 725, 86 Miss. 481; Regan v. State, 87 Miss. 422, 39 So. 1002.
Fred B. Smith, of Ripley, for appellants.
The court erred in sustaining the application for a change of venue.
It is the fixed policy of law in Mississippi that a public official shall not be sued out of the county of his household and residence, and if sued out of such county, he has a right to carry the action back to the county of his household and residence. This policy of the law is fixed because of the danger which might arise, in carrying public officials away from the county where their duty requires them to be and compel them to contest litigations brought against them in some other county. This provision is found in section 495 of the Mississippi Code of 1930. Of course, the same policy which would prohibit a public official from being sued out of the county of his household and residence, and the county where his duties required him to be, would likewise prevent an official so sued from having his cause removed and the venue changed to another county.
The statute of the state of Mississippi specifically declares that the position held by a deputy sheriff is "an office," and therefore a deputy sheriff is a public officer, as referred to in section 495, Code of 1930.
Section 3310, Code of 1930.
Again in section 3312 of the Mississippi Code of 1930 we find that the statute gives the sheriff a remedy against a deputy sheriff for a "default in office."
Not only has the statute referred to a deputy sheriff as an officer, but our Supreme Court has specifically held that a deputy sheriff is a public officer.
State ex rel. Baker v. Nichols, 106 Miss. 429; State ex rel. Brown v. Christmas, 88 So. 881; Railroad Co. v. Bolding, 69 Miss. 263; 67 C.J. 78.
The circuit court of Union county erred in trying, or undertaking to try this cause without a certified copy of any order from the circuit court of Marshall county, changing the venue of this action to the circuit court of Union county.
Sections 500, 501 and 502 of the Mississippi Code of 1930; Saunders v. Moss, 3 How. 101.
The court erred in proceeding with the trial of this cause without the same being revived or dismissed as against R.F. Dancy, who had died since the institution of said suit.
The verdict of the jury in this cause was unintelligible.
The court erred in refusing to permit the witness Coyle to testify as to threats by Lloyd Gurley against Butler Overton.
Hendrix v. State, 161 So. 151; Muse v. State, 130 So. 693, 158 Miss. 449; Cartee v. State, 159 So. 618, 162 Miss. 263; Burks v. State, 67 So. 367, 101 Miss. 87.
We respectfully insist that not a single case has been cited by appellee to the effect that an instruction depriving a defendant of the right to defend himself on reasonable appearances of danger is not reversible error. We cannot conceive of any instruction that could have been more damaging to the defendants than those which were granted. They took away from the appellants that great principle which has been established through the years of permitting a person to act on reasonable appearances and gave to the jury the right to determine not whether there was reasonable appearances of danger, but whether there was actual danger. We submit that not a single case cited by appellees bear out their contention, but a close analysis of practically every one of them reveals that they are strongly favorable to the position of appellant.
Lester G. Fant, Sr. and Jr., of Holly Springs, for appellees.
There was no error in the change of venue.
The appellants raise only two questions concerning the change of venue. (1) The first is that the transcript shows no certified copy of an order changing the venue and therefore the venue was not changed. (2) The second is that one of the defendants was a deputy sheriff, and that therefore it was impossible to grant a change of venue. We consider these in order.
1. The transcript of the certified copy of the order granting the change of venue was omitted from the original transcript. This, however, is entirely immaterial and unworthy of an instant's notice. For two reasons: (a) The transcript of this order has been duly supplied. (b) When the case was called for trial at the Union County circuit court, the defendants appeared in person and by their attorneys. None of the defendants are under any disability. They appeared generally in the circuit court of Union county, announced ready for trial, and proceeded to engage in a full litigation of the merits of the case. They, therefore, accepted the venue of the circuit court of Union county, with or without the certified copy of judgment.
Wessinger v. Mauser, 75 Miss. 64.
2. It is argued with apparent seriousness that since one of the defendants, Butler Overton, was a deputy sheriff at the time of the trial, it was impossible for the court to grant a change of venue. It is submitted that the answers to this contention, if it is seriously made, are obvious. (a) The defendant named was not sued in his official capacity. Indeed it is clear that the suit might have been originally brought by the plaintiffs in the circuit court of Union county.
Dean v. Brannon, 139 Miss. 312, 104 So. 175.
(b) The statute relied upon is not concerned with change of venue. Thus, an action against a county is subject to a change of venue.
Humphreys County v. Cashin, 128 Miss. 236, 90 So. 888.
If a county is subject to all the rules, including those of change of venue, then a fortiori a defendant who happens to be a deputy sheriff is, also.
(c) The objection here urged to the change of venue was not raised in the court below.
Burroughs Land Co. v. Murphy, 131 Miss. 526, 95 So. 515.
In a case involving liability insurance, where it is reversible error to show that the defendant is indemnified, the rule is strict. These cases are entirely different from the case at bar, where the surety company is a party defendant to the suit. Yet in a case of liability insurance this court held that voir dire examination as to a juror's interest in an insurance company writing such insurance was proper.
Yazoo City v. Loggins, 145 Miss. 793, 110 So. 833.
The scope of argument is broad.
Nelms Blum v. Fink, 159 Miss. 372, 131 So. 817.
There was no error in the admission or exclusion of evidence.
Myers v. State, 167 Miss. 76, 147 So. 308.
Threats against third parties are inadmissible.
Shaw v. State, 79 Miss. 21; Walker v. State, 140 Miss. 238, 105 So. 497; Bell v. Morrison, 27 Miss. 68.
In this case the proof tended to show a combination on the part of the defendants to commit a trespass on the plaintiff. After the trespass, and before the parties had separated, one of the defendants committed another act of trespass, and used declarations of abuse and insult. The court held that this conduct was admissible as a part of the res gestae. This has never been questioned, and comes within the general rule.
22 C.J., page 443, sec. 535, and pages 455, 456, sec. 545.
There was no error in receiving the verdict.
Callahan v. Rayburn, 110 Miss. 107, 69 So. 669; L. N.R.R. Co. v. King, 119 Miss. 79, 80 So. 490; Morris v. Robinson, 144 Miss. 861, 110 So. 683; DeLaval v. Cutts, 142 Miss. 379, 107 So. 522.
A judgment void as to one defendant is not void or erroneous as to others.
Bank of Philadelphia v. Posey, 130 Miss. 531, 825, 92 So. 540, 95 So. 134; section 3404, Code of 1930.
The appellants concede that the error as to R.D. Baird, if there is any error as to him, does not affect the rights of the other defendants named in the judgment, for they concede the applicability of section 516, Code of 1930.
Section 3309, Code of 1930.
R.F. Dancy died after the first trial in which there was judgment for the defendants, and before the appeal was submitted or argued in the supreme court. March 12, 1934, appellants (appellees here) filed a motion in the supreme court to revive said cause against R.D. Baird, Adm. of the estate of R.F. Dancy. This motion was sustained. This was sufficient for all further proceedings below. There was no need for an order of revival in the circuit court.
Cannon v. Cooper, 39 Miss. 784, 80 Am. Dec. 101.
There was never a hint by the defendants that they considered the revival imperfect until after verdict and judgment, on a motion for a new trial. This was too late to raise the question.
Weaver v. Turner, 125 Miss. 250, 87 So. 641; Sprawles v. Barnes, 1 S. M. 629; sections 516, 3309 and 3404, Code of 1930; Bank v. Posey, 130 Miss. 531, 825.
When all the instructions are considered together in the light of the evidence of the case there is no error in the instructions complained of, and if there were error it would not be reversible error.
The complaint made of the instructions is that they have an omission. That they omit "reasonably apparent danger." A mere omission in an instruction may be supplied by the instruction secured by the other party.
Harmon v. State, 168 Miss. 417, 150 So. 904.
It is familiar that an instruction defining murder as killing "not in necessary self defense" is no error on the ground that it excludes the doctrine of apparent necessity.
Ashby v. State, 137 Miss. 133, 102 So. 180; Stubblefield v. State, 142 Miss. 787, 107 So. 663; Callas v. State, 151 Miss. 617, 628, 118 So. 447; Carter v. State, 169 Miss. 285, 152 So. 876; Long v. State, 103 Miss. 698, 60 So. 730; Benson v. State, 102 Miss. 16, 58 So. 833; Smith v. State, 107 Miss. 574, 65 So. 498; Pittman v. State, 147 Miss. 593, 113 So. 348; Friedman v. Allen, 152 Miss. 377, 118 So. 828; Harmon v. State, 168 Miss. 417.
On all the evidence in this case the instructions given were not erroneous or prejudicial to the appellants. For the evidence discloses no theory of reasonably apparent danger different from what the actual danger was testified to.
National Box Co. v. Henry, 140 Miss. 397, 105 So. 854; Cody v. State, 167 Miss. 151, 148 So. 627.
An instruction on conspiracy which omitted a theory of defense was held no reversible error where the evidence showed that the defense was not available.
Woodward v. State, 166 Miss. 596, 143 So. 859; McLemore v. Rogers, 169 Miss. 650, 152 So. 883; Gurley v. Tucker, 170 Miss. 565.
The case will not be reversed because of any error in instructions, because on the whole record it is apparent that the correct and just result was reached.
Jones v. State, 104 Miss. 871, 61 So. 979.
Argued orally by L.A. Smith, Sr., for appellant, and by Lester G. Fant, Jr., for appellee.
This is the second appeal in this cause. On the former appeal a judgment in favor of the defendants was reversed, and in the opinion, which is reported in 170 Miss. 565, 155 So. 189, the facts surrounding the unfortunate tragedy in which the husband of the appellee and his brother were killed, are set out at length, and we will here state only such additional facts as we deem necessary to an understanding of the issues to be decided.
This suit was originally filed in Marshall county against the sheriff of that county, the surety on his official bond, and two of his deputies. Upon remand of the cause, after reversal of the former appeal, the appellees filed a motion for a change of venue on the grounds that, on account of prejudice existing in the public mind, the undue influence of the adverse parties, and the publicity caused by three former trials involving the same facts, they could not obtain a fair and impartial trial in Marshall county. Upon the lengthy testimony offered by the respective parties on this motion, the court granted a change of venue, and entered an order removing the cause to Union county, and appellants assign as error the action of the court in so doing.
Upon this assignment, it is the contention of appellants that by virtue of section 495, Code 1930, the venue of civil actions against public officers is fixed absolutely in the county of the household and residence of such officers, and that, consequently, the court was without power to remove this cause out of the county of the household and residence of the officers who were parties defendant. At the time of the removal, the term of office of R.F. Dancy, sheriff of Marshall county, had expired and he had died, but the defendant, Butler Overton, continued as a deputy under the succeeding sheriff, and the contention is based upon the right of this deputy to have the suit continued to a conclusion in the county of his household and residence.
Section 495, Code 1930, provides, among other things, that "If a citizen resident in this state shall be sued in any action, not local, out of the county of his household and residence, or if a public officer be sued in any such action, out of the county of his household and residence, although a surety or sureties, or some of the sureties, on his bond, or other joint defendant, sued with him, be found or be subject to action in such county, the venue shall be changed, on his application, before the jury is impaneled, to the county of his household and residence." Prior to 1926, this section merely provided that, "If a citizen resident in this state shall be sued in any action, not local, out of the county of his household and residence, . . . the venue shall be changed, on his application, before the jury is impaneled, to the county of his household and residence," and the provision with reference to public officers first appeared in our statutory laws in chapter 155, Laws of 1926. Prior to the enactment of chapter 155, Laws of 1926, the court, in Dean v. Brannon, 139 Miss. 312, 104 So. 173, 175, held that in an action against a sheriff and the surety on his official bond, the cause was properly brought in the county where the surety corporation was found with a place of business and an agent subject to process, and the amendment of the then existing statute, by the enactment of chapter 155, Laws of 1926, was manifestly intended to meet this decision of the court, and to require that the venue of civil actions against a public officer shall be laid in the county of the officer's household and residence, and in the event it is not so laid, that such officer shall be entitled to a change of venue to the county of his household and residence.
But the provision of the statute fixing the venue of actions against a public officer in the county of his household and residence does not prevent the full operation of the statute providing for a change of venue, section 500, Code 1930, when conditions develop which cause the statutory right to a change of venue to arise. The provisions of section 495, Code 1930, giving to a public officer sued in any action out of the county of his household and residence the right to have the venue changed to the county of his household and residence, does not confer any higher or different right from that granted to any other citizen resident in this state who is sued in any action, not local, out of the county of his household and residence, and the amendment of this statute was merely intended to guarantee to a public official the right to remove a suit to the county of his household and residence, although the surety on his official bond may be found doing business in the county where the suit was originally filed.
Section 500, Code 1930, authorizing a change of venue upon certain stated grounds and conditions, was intended to provide a method by which a fair and impartial trial could be obtained, whenever on account of the undue influence of the adverse party, prejudice in the public mind, or other sufficient cause, a fair and impartial trial cannot be obtained in the county in which the venue was originally fixed, and whenever conditions arise which, by virtue of this statute, authorize a change of venue, the court may, and, in the interest of justice, should, grant a change. The sufficiency of the evidence upon which the court granted the change of venue is not here challenged, and no error was committed in granting the change.
The evidence bearing upon the acts of the deputy sheriffs and the deceased Gurleys immediately before and at the time of the fatal shooting is sharply conflicting. The evidence clearly shows that Glenn Gurley was the first actor in the incidents which almost immediately led to the shooting. According to the testimony for the appellees, the jury would have been warranted in finding that the deceased Gurley was shot at a time when he was doing nothing to indicate an intention to kill any of the officers, or do them great bodily harm, while, under the evidence for the appellants, the jury would have been warranted in finding that Leslie Tucker was in real or apparent danger of losing his life, or suffering great bodily harm at the hands of Lloyd and Glenn Gurley, and that the shooting was justifiable on the ground of the real or apparent necessity to save said Tucker from death or great bodily harm. In this state of the record, the court granted the appellees three instructions, telling the jury, in effect, that the killing of the Gurleys was not justifiable in law unless it was done in defense of some person who was in actual danger of losing his life, or suffering great bodily harm at the hands of Lloyd Gurley. The parts of the three instructions bearing upon the particular point under consideration read as follows:
"The court instructs the jury for the plaintiffs that even though Butler Overton and Leslie Tucker were deputy sheriffs, and were acting in their official capacity, they would not be justifiable in law in killing Lloyd Gurley unless they did the killing and shooting in defense of himself or of some other person who was in actual danger of losing his life or suffering great bodily harm at the hands of the said Lloyd Gurley."
"And if the jury after considering all the evidence in the case and the instructions of the court are satisfied that at the time Lloyd Gurley was killed the defendants were not in actual danger of losing their lives or suffering some great bodily harm at the hands of Lloyd Gurley, the jury should find its verdict for the plaintiffs."
"And if the jury believe from all of the evidence in this case that Lloyd Gurley was shot and killed by the defendant Overton for the commission of a misdemeanor against the person of Deputy Tucker, at a time when said Tucker and Overton were not in actual danger of losing their lives or suffering some great bodily harm at the hands of Lloyd Gurley, then the jury should find for the plaintiffs."
These instructions are manifestly erroneous in that they limit the right of the officers to act in self-defense to the existence of actual danger of losing their lives, or suffering great bodily harm at the hands of Lloyd Gurley. The right of these officers to act on reasonable appearances, and to defend themselves against apparent danger was thereby expressly excluded. We do not understand, however, that the appellees contend that these instructions are not erroneous, but it is insisted that the errors therein were cured by several instructions granted to the appellants, which informed the jury that the killing of the deceased was justifiable if the officers, situated as they were, had reasonable ground to believe and did believe, from the acts of the deceased and his brother, that Leslie Tucker was in danger of death, or suffering great bodily harm at the hands of said Lloyd and Glenn Gurley.
In our opinion, the errors in these instructions granted to the appellees were not mere omissions which were supplied by appellants' instructions, but the instructions, as granted, constituted an express limitation upon the right of self-defense, and directed the jury to return a verdict for the appellees if they believed that the officers were in no actual danger. As we construe these instructions, they are in conflict with those granted for the appellants, and being thus in conflict, the instructions furnished no sufficient guide to the jury as to the law by which they were to be controlled in making up their verdict.
The appellants also complain of the admission of testimony to the effect that handcuffs were placed upon Glenn Gurley. This occurred before Glenn Gurley had fallen, and at a time when it was not known, and could not have been known, that he was seriously or fatally wounded, and it was so closely connected with the principal facts as to be admissible as a part of the res gestae.
Likewise, there was no error in sustaining the objection to a question seeking to show that at some time within twelve months prior to the shooting, Lloyd Gurley had made a threat against one of the officers present, other than the one who was the object of the alleged, assault by the Gurleys. The question as framed would have permitted the introduction of a threat made at a time too remote to be of evidential value and against a party who had not been the object of the alleged assault on the part of the Gurleys. Shaw v. State, 79 Miss. 21, 30 So. 42; Walker v. State, 140 Miss. 238, 105 So. 497.
It is also contended that the court erred in proceeding with the trial without same being revived or dismissed as against R.F. Dancy, who had died since the institution of the suit. R.F. Dancy died after the first trial in which there was a judgment in favor of the defendants, and while the cause was pending in this court on appeal from that judgment, it was revived against the administrator of Dancy's estate, and thereafter the administrator of the estate continued as a party to the suit in subsequent proceedings. In Cannon v. Cooper, 39 Miss. 784, 789, 80 Am. Dec. 101, in speaking of revivals in the Supreme Court, the court said: "When made parties, they must become so for all the purposes of the suit, whether the judgment be final in this court or the cause be remanded to the court below for further proceedings. If the cause be remanded, it is a mere continuation of it, and the parties to it, who were such in this court, would necessarily be the parties to it in all subsequent proceedings, unless some change was made in a way recognized by law. For, having been regularly introduced as parties to it, it would be vain and useless to take other steps and incur further expense to make them such in its further progress."
The other errors complained of deal with matters which probably will not arise on a new trial.
For the errors indicated above in the instructions, the judgment of the court below will be reversed, and the cause remanded.
Reversed and remanded.