Opinion
No. 33126.
March 14, 1938.
1. HOMICIDE.
In prosecution of 17 year old defendant weighing about 135 pounds for murder of 40 year old decedent weighing about 200 pounds, where defendant pleaded self-defense, alleging that decedent was advancing toward him as if he were going to jump and that defendant fired shots when decedent was between 4 and 6 feet away, testimony concerning decedent's reputation for peace or violence was competent on question whether defendant as a reasonable man had good reason to believe that he was in danger of sustaining bodily harm at decedent's hands.
2. HOMICIDE.
An "overt act" justifying shooting in self-defense may be a motion, a gesture, conduct, or demonstration, or anything else reasonably evidencing a present design to take the defendant's life or to do him great bodily harm.
APPEAL from the circuit court of Coahoma county. HON. WM. A. ALCORN, JR., Judge.
Shed Hill Roberson and Chester H. Curtis, both of Clarksdale, for appellant.
We respectfully submit that the ruling of the lower court in refusing to allow the testimony as to the reputation of the deceased for peace or violence was error, and that for this reason, the judgment should be reversed.
The rule is supported by many authorities that, on a trial for homicide, the defendant, after laying a proper foundation by evidence tending to show that, in committing the homicide, he acted in self defense, may introduce evidence of the turbulent and dangerous character of the deceased. While the deliberate, unprovoked killing of a human being cannot in any measure be justified by the fact that he bore the reputation of a turbulent and violent person, the law recognizes the well established fact in human experience that the known reputation or character of an assailant as to violence and turbulence has a very material bearing on the degree and nature of the apprehension of danger on the part of a person assaulted; also that one who is turbulent and violent may the more readily provoke or assume the aggressive in an encounter. Hence, as bearing on these issues, where a proper foundation has been laid, it is conclusively established in almost all jurisdictions that evidence of the turbulent and dangerous character of the victim of homicide is admissible.
King v. State, 65 Miss. 576; Smith v. State, 75 Miss. 542; Moriaty v. State, 62 Miss. 654; Spivey v. State, 58 Miss. 858; Cotton v. State, 31 Miss. 504, 64 A.L.R. 1029; Scott v. State, 56 Miss. 287.
An overt act may be a motion, a gesture, conduct or demonstration, or anything else which evidences reasonably a present design to take the life of the defendant or to do him great bodily harm. Trifles light as air when viewed alone may become fraught with deadly meaning when viewed in connection with all the preceding facts disclosed, and with all the evidence in the case.
Stokes v. State, 92 Miss. 415; Hood v. State, 27 So. 643.
The record in this case discloses that the deceased, Zack Carson, was advancing towards appellant in a threatening manner, with his right fist doubled, his lips quivering and his teeth gritting. It cannot be argued that it is the contemplation of the law of self defense that Charles Anderson could not defend himself until Zack Carson had actually placed his hands upon him, for in all probability, defense would then be of no avail. Zack Carson because of his physical superiority, could have killed Charles Anderson with his bare hands, and as appellant knew he was mentally disposed to do so. Under such peculiar circumstances, the general reputation of Zack Carson was a vital and important factor. Had Charles Anderson been dealing with a different negro under these same circumstances, he may never have used a gun to protect himself, but knowing Zack Carson's reputation and disposition, he acted as a reasonable man would act and did shoot to preserve his own life or save himself from great bodily harm.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
There was no evidence to show any physical encounter between the two principals to this homicide and consequently all evidence as to disparity of size as between them had no place in this trial.
Wright v. State, 162 Miss. 592, 139 So. 846.
In view of appellant's admissions with reference to his first verbal encounter with deceased and that he armed himself with a deadly weapon and went back where the verbal encounter could again be indulged in and made use of the pistol under the circumstances detailed by him, he was estopped to plead self defense.
Woodward v. State, 177 So. 531; Waldrop v. State, 54 So. 66; Ex parte Wray, 30 Miss. 673.
On the defendant's own testimony there was no act of aggression on the part of deceased that would justify appellant in using a deadly weapon as was used in this case.
On the whole case, we submit that the reputation of deceased, under the facts of this record, had no place in this case and it was proper for the court to keep it out. We further submit that this conviction should be sustained.
Appellant was convicted in the circuit court of Coahoma county of the murder of one Zack Carson. Under his plea of self-defense, he undertook to testify as to the general reputation of the deceased for peace or violence. This testimony, together with that of other witnesses to the same effect, was objected to and excluded. The exclusion of this testimony is the only serious question presented for decision on this appeal.
The testimony discloses that about two weeks before the killing, the deceased drove his taxicab into a filling station where appellant was at work, and ran against the heel of the appellant while he was stooping over to fix a tire on another car. Later that evening the appellant went across the street, near the taxicab stand of the deceased, to purchase a package of cigarettes and while there asked the deceased why he had run over his heel, to which the deceased replied, "I didn't run over your damn foot, and if I did you had better go back to work or I will beat ____ out of you." Appellant thereupon returned to his work; and on the occasion when the killing occurred, the deceased had gone to the garage in the rear of the filling station, where the appellant was employed, to have some work done on his car. The appellant there renewed the controversy by asking the deceased whether he was drunk the night he ran over his foot, to which the deceased replied, "No, I was not drunk." Appellant then said, "Why did you talk to me as you did," to which the deceased replied, "Why, I think you are lucky that I did not beat the ____ out of you." Appellant said nothing further at that time, but went to the office of the service station, got a pistol, stuck it in his pocket, returned to the garage, got a bucket of used oil and a brush to grease a jack with so as to resume his work, when the deceased asked him, "What do you take me to be — some of these children around here?" Whereupon appellant replied, "No, sir, I will take you as a man and I want you to treat me right." At that time the deceased was rubbing the hood of his car with a rag which he changed from his right to his left hand, and, according to the testimony of the appellant, started advancing toward him with his fist clinched, gritting his teeth and quivering in a mad and threatening manner; that the appellant then told the deceased, "Don't come up on me"; that deceased kept walking, and "acted as if he were going to jump"; that the appellant then pulled the gun and commenced firing, at a time when the deceased was from four to six feet away.
Under appellant's version of what occurred, we are of the opinion that in view of the fact that the defendant was only seventeen years old and weighed about 135 pounds and the deceased was a man forty years old and weighed about 200 pounds, he was entitled to have the jury take into consideration the reputation of the deceased for peace or violence in order that the jury might fairly and intelligently determine whether the appellant as a reasonable man had good reason to believe that he was then in danger of sustaining great bodily harm at the hands of the deceased. Cotton v. State, 31 Miss. 504; Scott v. State, 56 Miss. 287; Spivey v. State, 58 Miss. 858; King v. State, 65 Miss. 576, 5 So. 97, 7 Am. St. Rep. 681; Smith v. State, 75 Miss. 542, 23 So. 260. In the case of Smith v. State, supra, it was held that when there was evidence showing, or tending to show, that the defendant acted in self-defense, under reasonable apprehension that his life was in danger, or that he was in danger of sustaining great bodily harm, because of some act of the deceased done at the time of the killing, one of the elements entering into the reasonableness of such an apprehension is the character of the defendant's adversary as a violent, vindictive, and dangerous man, known to be such to the defendant.
The testimony as to the general reputation of the deceased for peace or violence in the case at bar was objected to on the ground that no overt act was shown, such as is recognized under the law, to justify a shooting in self-defense. But it was said in the case of Hood v. State, Miss., 27 So. 643, 644, that "an `overt act' . . . may be a motion, a gesture, conduct, or demonstration, or anything else which evidences reasonably a present design to take the life of the defendant or to do him great bodily harm."
While we are reluctant to reverse this case under all the facts and circumstances disclosed by the testimony both on behalf of the state and of the defendant, we think that the safer course would be to follow the rule announced in these former decisions and allow the jury to consider the proffered testimony in determining whether the appellant acted in what he deemed to be his necessary self-defense; and that the case of Wright v. State, 162 Miss. 592, 139 So. 846, is not in conflict with this view, since it does not appear in the Wright Case that the deceased was in such close proximity to the defendant at the time of the shooting, as was true in the case at bar. Nor does the case of Woodward v. State, Miss. 177 So. 531, to the effect that if a person arms himself for provoking a difficulty and does so, intending to use the weapon if necessary to overcome resistance, he has no right to rely on self-defense, because the evidence in this case does not establish, without conflict, that the accused intended when he obtained the weapon to further provoke the difficulty for the purpose of killing the deceased, but rather tends to show on the part of the defense that he had obtained the weapon merely for use in overcoming any attempt that the deceased should make to carry out his alleged previous threat against the appellant. The difficulty was therefore renewed by the deceased at a time when the appellant was going about his duties, according to his testimony.
Reversed and remanded.