Opinion
No. 27317.
October 22, 1928.
1. HOMICIDE. Instruction that threats could not justify defendant's shooting another in self-defense, unless latter made overt act "toward defendant," held not erroneous.
In prosecution for assault and battery with intent to kill and murder, instruction that threats alone would not justify defendant in shooting one making threats in self-defense, unless at time defendant shot latter he was making some overt act toward defendant, held not erroneous because of use of words "toward defendant."
2. HOMICIDE. Instruction that defendant shooting in self-defense acted at his peril, and that jury must determine reasonableness of ground on which he acted, held not erroneous.
In prosecution for assault and battery with intent to kill and murder, instruction stating, among other things, that defendant may have had lively apprehension that life was in danger at time of shooting and believed grounds of his apprehension just and reasonable and yet he acted at his own peril, and stating that jury must determine reasonableness of ground on which he acted at time of shooting, held not erroneous.
3. HOMICIDE. Instruction on self-defense, containing statement that defendant must have had reasonable ground to apprehend design to kill or injure, and that "there was imminent danger of design being accomplished," held not erroneous.
In prosecution for assault and battery with intent to kill, instruction on self-defense, stating, among other things, that defendant must have had reasonable ground to apprehend design on part of person shot to kill defendant or do him bodily harm, and in addition to this that "there was imminent danger of such design being accomplished," held not erroneous, since clause quoted must be considered in connection with other language in instruction.
4. CRIMINAL LAW. In determining if there is reversible error, all instructions must be construed together.
All instructions granted both parties must be construed together, and when so done, if law is correctly announced, there is no reversible error.
5. CRIMINAL LAW. State's counsel in argument may comment on evidence and deduce inferences therefrom and point out witnesses by name.
It is within province of state's counsel in argument to jury to comment on evidence and deduce inferences therefrom and point out witnesses by name.
6. CRIMINAL LAW. State's counsel's argument that case was malicious, cold-blooded, diabolical attempt to murder, predicated on evidence, held not reversible error.
In prosecution for assault and battery with intent to kill and murder, argument to jury by state's counsel that it was case of malicious, premeditated, cold-blooded, diabolical, damnable attempt to assassinate and to murder, predicated on some of evidence for state, held not reversible error.
7. CRIMINAL LAW. Overruling objection to state's counsel's reference in argument to defendant's interest, when referring to his testimony, held not reversible error.
Where special counsel for state, in referring to testimony of defendant, remarked: "What interest has he got, what interest and what motive? He has more interest than any other living person. I don't blame him. If they had M.J. in such a place, I would do it — I might do the same thing," and court overruled objections to remarks, there was no reversible error.
8. CRIMINAL LAW. Instruction that in passing on testimony jury could consider witness' interest as shown by circumstances shown held not error under evidence.
In prosecution for assault and battery with intent to kill and murder, giving of instruction for state that, in passing on testimony of witnesses, jury could consider interest which witness might feel in result of suit as shown by facts and circumstances growing out of testimony and give testimony only weight to which it was entitled, held not error, where it was shown that some of witnesses for defendant had contributed funds toward employing his counsel and similar instructions were given defendant.
APPEAL from circuit court of Leflore county; HON. S.F. DAVIS, Judge.
Gardner, Odom Gardner, for appellant.
If the prosecuting witness made a gesture toward his hip pocket, it matters not for what reason, and it matters not whether same was made toward appellant if appellant construed this movement to be an effort on the part of the prosecuting witness to kill him, or do him some great bodily harm, and such conclusion was a reasonable conclusion under the circumstances, then appellant was justified in shooting.
We most earnestly insist that instruction No. 3 granted for the state is fatally erroneous under the facts in this case. This instruction in substance has been under consideration by this court before, in the case of John Stuckey v. State, 104 So. 610. In that case we represented the appellant and insisted most strenuously that the instruction ought to reverse the case. We are fully convinced that in granting such an instruction the state is given an undue advantage over the appellant, and he is virtually deprived of his right under the law to act on reasonable appearances at the hands of his assailant.
The danger was never imminent because it was shown by undisputed evidence that the prosecuting witness was not armed. The instruction tells the jury that appellant had no right to shoot unless the danger was imminent. This absolutely cuts off his right of self-defense, since Giones was unarmed. Spivey v. State, 58 Miss. 858.
The most palpable error in this record is presented by special bill of exceptions, which shows the extent to which the special prosecuting attorney was willing to go in order to obtain a conviction in this case. We believe that his argument when considered in connection with instruction No. 2 granted for the state, will entitle us to a reversal of this cause. See Hempton v. State, 88 Miss. 257, 40 So. 545; Harwell v. State, 93 So. 366; Smith v. State, 105 So. 758, 141 Miss. 772; Section 1651, of Hemingway's Code of 1927; Buckley v. State, 62 Miss. 705; Smith v. State, 90 Miss. 111, 43 So. 465; Piggott v. State, 107 Miss. 552, 56 So. 583; Chatman v. State, 102 Miss. 179, 59 So. 8; Gaines v. State, 48 So. 182.
The attorney-general will probably refer to the cases of Vails v. State, 48 So. 725, and Pool v. State, 56 So. 184, the opinions in both of these cases being rendered by Chief Justice WHITFIELD. In the last case, however, the opinion was rendered as commissioner and affirmed per curiam by the court. In the Vails case, supra, the court declined to reverse because of an instruction calculated to single out the testimony of the accused for the reason that a brother of the accused testified on the trial of the case. We do not think the Vails case, supra, applicable to the case at bar for two reasons, first, there was no witness introduced on the trial of the case at bar who bore any relation to the appellant whatever, by blood or marriage, and in the second place the record in the Vails case does not show that the prosecuting attorney in connection with the instructions argued at length that the testimony of the accused could not be given any credit because of his interest in the result of the trial. The difference in the two cases is manifest.
Again, the state will probably contend on appeal that under the authority announced by the court in the Pool case, supra, that appellant waived the error of the instruction by asking instruction No. 11 granted appellant, which appears at page 152 of the record. This instruction simply told the jury that they were the judges of the weight of the testimony and the credibility of the witnesses, and that they had a right to disregard the testimony of any witness if they believed that such witness has wilfully and corruptly testified falsely. There would be no force in such contention. In the first place, the interest of the witness was not mentioned in instruction No. 11 granted for appellant. In the second place in the Pool case the prosecuting attorney according to the record, did not argue the instructions as did counsel in the case at bar. Each case must stand on its facts, and we submit that under the facts in the case at bar that the Pool case is not in point.
J.A. Lauderdale, Assistant Attorney-General, for the state.
Counsel for appellant argue at length that the testimony in this case is insufficient. However, from their own statement of fact, it is shown that it is sufficient, and they practically admit that it is sufficient, but argue that the state's theory is unreasonable, unbelievable, and impeached by the testimony of the defendant. These, of course, were all questions of fact to be determined by the jury, and they have determined the facts against the defendant and in favor of the state.
The only question at issue was whether or not Giones made an overt act. The testimony of all of the eye-witnesses, except appellant, is to the effect that he did not. As stated before, the facts are questions for the jury, and I do not see how it could have found otherwise in view of the facts that the testimony is overwhelmingly in favor of the state's theory of this case.
If Giones was not making an overt act toward appellant, he had no right to shoot him. If the witness reached his hand to his hip pocket at the time, and under the circumstances, appellant contends that he did, why this certainly was an overt act toward appellant, and unless this overt act was made, then appellant has no defense.
Instruction number three for the state is criticized. However, counsel for appellant state that this question was raised by them in John Stuckey v. State, 104 So. 610. It was decided adversely to their contention. The opinion of the court in the Stuckey case does not contain the instruction there criticised, however, I assume that counsel are correct in stating that it is practically the same as the one given in the case at bar.
The danger must be either actual, present and urgent, or the defendant must have had reasonable ground to apprehend a design on the part of Giones, and in addition to the apprehension, he must have believed that there was imminent danger of such design being accomplished. This instruction has been approved in numerous cases and has been the law of self defense for a long time. Where the defendant relies on apparent danger, the danger must appear at the time to be imminent.
Counsel for appellant strenuously contend that this case should be reversed on the ground that Mr. Johnson, an attorney who had been employed to assist the state in prosecution, made improper arguments before the jury. This contention cannot be maintained for two reasons, first, the special bill of exceptions shows that the argument was entirely proper and legal.
Second, counsel for appellant failed to reserve an exception to the ruling of the court. I deem it unnecessary to cite authorities holding that in order to avail himself of an adverse ruling of the trial court, counsel for defendant must except to the ruling of the court.
In support of their contention, counsel for appellant cite the case of Smith v. State, 141 Miss. 772, and counsel evidently had this case before them when they drew the special bill of exception in this case. However, they failed to include one very important statement as follows "and defendant excepted."
Means Johnston, for the state.
Appellant complains of instruction number 6 granted for the state. The instruction was virtually copied from instruction number 6 in the case of Molphus v. State, 124 Miss. 584, 87 So. 113.
It is the cardinal rule of construction that instructions are to be construed together as of pari materia, one as modifying another. In construing them thus, the law will be correctly expounded, and the judgment will not be reversed because a single instruction taken by itself is too broad in its terms. Mask v. State, 36 Miss. 77; Evans v. State, 44 Miss. 762; Head v. State, 44 Miss. 731; Williams v. State, 95 Miss. 671, 49 So. 513.
A misleading instruction as to reasonable doubt is not reversible error, where other instructions are clear and correct. Riley v. State, 18 So. 117. An instruction for the state which does not fully state the law is not cause for reversal, where the subject is completely covered by instructions given at defendant's request. Barr v. State, 21 So. 131; Riley v. State, 18 So. 117; Rogers v. State, 21 So. 130; Cook v. State, 28 So. 833; Harper v. State, 83 Miss. 402, 35 So. 572; Vails v. State, 94 Miss. 365, 48 So. 725; Jones v. State, 130 Miss. 703, 94 So. 851; Long v. State, 103 Miss. 698, 60 So. 730; Murphy v. State, 119 Miss. 220, 80 So. 626.
Instruction number 3 is a literal copy of the law set out in the case of Westley v. State, 37 Miss. 327.
"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. That is a question which the jury alone are to determine." This construction of the law has been approved in the following cases, to-wit: Evans v. State, 44 Miss. 774; Harris v. State, 47 Miss. 327; Johnson v. State, 54 Miss. 434; Kendrick v. State, 56 Miss. 290; Moriarty v. State, 62 Miss. 661.
Counsel cites no opinion where this instruction has been condemned, and does not mention the Westley case, supra, or any of the other authorities which support it, but in an attempt to have the supreme court condemn this instruction, cites the case of Spivey v. State, 58 Miss. 858, which instruction is palpably wrong on its face, and is not the same instruction complained of in the case at bar.
I submit to the court that special counsel for the state had a perfect right to draw conclusions based on the evidence, and that the remarks complained of were made upon the contention that if the evidence in the case was true, it shows that character of the crime committed. While counsel for appellant objected to the foregoing remarks, no exceptions thereto were reserved for appellant, and therefore cannot be considered on this appeal.
Counsel for appellant cites Buckley v. State, 62 Miss. 705; Woods v. State, 67 Miss. 575; Smith v. State, 90 Miss. 111; Piggott v. State, 107 Miss. 552; Townsend v. State, 12 So. 209; Chatham v. State, 102 Miss. 179, and, also, Gaines v. State, 48 So. 182. It is the contention of the state that none of these decisions are applicable to the case at bar. See Murphy v. State, 119 Miss. 220, 80 So. 636.
Appellant was tried and convicted upon a charge of assault and battery with intent to kill and murder Steve Giones. The court imposed a sentence of two years in the penitentiary, from which conviction and sentence appellant appeals. Both parties are Greeks. Appellant had been employed as a waiter in a cafe in Greenwood. Giones owned and operated a shoe-shine establishment.
The testimony for the state tended to show that appellant walked up to Giones, who was standing in front of a store looking at a display in the show window, and fired three pistol shots at him, two of which took effect in the front of the body. Eight witnesses were introduced by the state, and seven by appellant. The testimony seems to be in conflict on practically every material point. Some of the evidence for the state showed that upon the first shot being fired Giones fell to the pavement, catching upon his knees and hands, and that the other two shots were fired while he was in that position. Giones was unarmed, and was wearing trousers and vest, but no coat. The testimony for the appellant was to the effect that the two men had an altercation the previous night in the cafe where appellant was employed, at which time Giones threatened to kill appellant if he did not leave town by noon the next day; that at the time of the shooting Giones confronted appellant, and demanded that he retract the language used the previous night; that heated words followed, each cursing the other in the Greek language; that Giones made a motion as if to throw his hand to his hip pocket, which appellant considered an effort to carry out the threat of the night before, and, believing his life to be in danger, fired in self-defense. We deem it unnecessary to state further details of the difficulty.
Appellant assigns for error the granting of instruction No. 6 for the state, which reads:
"The court instructs the jury for the state, that mere threats alone made by Steve Giones, against the defendant Peter N. Callas, will not justify the defendant Peter N. Callas in shooting and wounding the said Steve Giones; even though the jury believe from the evidence that the said Steve Giones, threatened the life of the defendant Peter N. Callas, and that the threats were communicated to him, this alone would not justify Peter N. Callas, the defendant, in shooting and wounding the said Steve Giones, unless you further believe from the evidence, that at the time the defendant Peter N. Callas shot the said Steve Giones he, the said Steve Giones, was making some overt act toward the defendant Peter N. Callas."
It is insisted that the vice of this instruction consists in telling the jury that unless Giones was making some overt act toward the appellant at the time of the shooting, he had no right to shoot, etc.; that the overt act would not necessarily have to be made "toward the defendant," but if made in any manner whatever, which appellant construed, and reasonably believed from the circumstances to be an effort to kill him, or to do him some great bodily harm, the shooting would be justifiable.
We do not think the instruction subject to the criticism made. This instruction is identical with instruction No. 6 given the state in Molphus v. State, 124 Miss. 584, 87 So. 133. This court there upheld it against an able attack therein made on it.
Granting for the argument that the instruction is subject to the fault found by appellant, it is entirely cured by instructions given him, especially instructions Nos. 3, 4, and 5.
Appellant next argues that there was error in granting the state's instruction No. 3, which reads:
"The court instructs the jury for the state, that in order to justify the defendant, Peter N. Callas, in shooting and wounding the said Steve Giones, on the ground of self-defense, the danger to the said defendant Peter N. Callas, at said time must have been either actual, present and urgent, or the said defendant, Peter N. Callas, must have had reasonable ground to apprehend a design on the part of the said Steve Giones, to kill him, or to do him some great bodily harm, and in addition to this that there was imminent danger of such design being accomplished, and hence the mere fear, apprehension or belief, however sincerely entertained by said defendant, Peter N. Callas, that the said Steve Giones designed to take his life, will not justify the defendant, Peter N. Callas, in shooting and wounding the said Steve Giones. The defendant, Peter N. Callas, may have had a lively apprehension that his life was in danger at the time of the shooting, and believed the grounds of his apprehension just and reasonable, and yet he acts at his own peril. He is not the final judge; the jury must determine the reasonableness of the ground upon which he acted at the time of the shooting."
Appellant relies upon Spivey v. State, 58 Miss. 858. The instruction in this case reads:
"Fear or apprehension, however sincerely entertained by the defendant, that the deceased (Bailey) designed and intended to take his life, or to do him some great bodily harm, affords no excuse or justification whatever to the defendant. He may have had a lively apprehension that his life was in imminent danger, and sincerely and truly have believed that the ground of his apprehension was just and reasonable, yet if he acted upon them, and in so doing killed Bailey, he did so at his peril."
In discussing this instruction the court, through Judge CAMPBELL, said:
"The fifth instruction for the state does not fairly present the principle intended to be announced. It is calculated to mislead by conveying a meaning not intended, and not correct. It is true that in acting on one's apprehensions of danger, and slaying his assailant, he acts at his peril — that is, he takes the risk of what a jury will determine as to the propriety of his action, — but this instruction fails to tell the jury what peril is meant, and it is highly probable that it conveyed an idea which unduly abridged the right of self-defense from apparent danger."
By comparison, the difference between that instruction and the one now under consideration will be readily noted. There the right to act upon belief that the accused was in danger of losing his life, or of sustaining great bodily harm, reasonably apprehended from appearances, was denied or abridged; but here this right is preserved. We do not perceive the instruction to be susceptible of the construction placed upon it by the appellant. The clause, "there was imminent danger of such design being accomplished," must be considered in connection with the language that precedes and follows it. When so construed, it conforms to the law announced in Wesley v. State, 37 Miss. 327, 75 Am. Dec. 62; Evans v. State, 44 Miss. 762; Harris v. State, 47 Miss. 318; Johnson v. State, 54 Miss. 430; Kendrick v. State, 55 Miss. 436; Moriarty v. State, 62 Miss. 654.
If there should be merit in appellant's criticism of this instruction, it fades out when the instruction is read in connection with instructions Nos. 2, 3, 4, 5, and 15, granted to appellant, which fully present to the jury in various forms the right of self-defense. It is a cardinal rule that all instructions granted both parties must be construed together, and when so done, if the law is correctly announced, there is no reversible error.
Appellant's next contention is that the argument to the jury of special counsel for the state was improper. The special bill of exceptions recites that counsel, addressing the jury, said:
"Gentlemen of the jury, this is a case of malicious, premeditated, cold-blooded, diabolical, damnable attempt to assassinate, to murder."
Timely objection was made to this statement, as improper, and being an opinion of counsel. The court ruled that counsel must stay in the record; whereupon counsel stated that the evidence showed it to be the kind of case just described. The special bill further recites that during the same argument special counsel, in reference to the testimony of defendant, further remarked:
"What interest has he got, what interest and what motive? He has more interest than any other living person. I don't blame him. If they had Means Johnston in such a place, I would do it — I might do the same thing."
Objections to these remarks were overruled by the court.
We say, first, that while the language employed was strong, containing an unnecessary use of adjectives, yet counsel predicates it upon the evidence, and if some of the evidence for the state is believed, it would be a cold-blooded attempt to assassinate; and, second, while the court is prohibited from singling out the evidence of any witness, and commenting thereon, this rule is not applicable to attorneys in their argument. It is within their province to comment on the evidence and deduce inferences therefrom, and point out witnesses by name. We hold this not to be reversible error. Bufkin v. State, 134 Miss. 116, 98 So. 455.
Instruction No. 4 given the state is also challenged by appellant. It reads:
"The court instructs the jury, for the state, that in passing upon the testimony of the witness for the state and for the defendant, that they have the right to take into consideration the interest which any witness may feel in the result of this suit, as shown by the facts and circumstances growing out of the testimony in the case, and to give to the testimony of each and every witness only such weight as they think it entitled to under all the circumstances proven in the trial."
Instructions of like tenor were given appellant. Eight witnesses testified for the state, and seven for the appellant. It was shown that some of the witnesses for appellant had contributed funds toward employing appellant's counsel. It is unlike a case where the defendant alone testifies, or where the instruction definitely points out or refers to the defendant. This principle was condemned in Buckley v. State, 62 Miss. 705, and the group of cases following it. This instruction, however, is in line with Vails v. State, 94 Miss. 365, 48 So. 725; Poole v. State, 100 Miss. 158, 56 So. 184; Murphy v. State, 119 Miss. 220, 80 So. 636.
We find no reversible error, and the judgment of the lower court is affirmed.
Affirmed.