Opinion
No. 32540 1/2.
February 1, 1937.
1. ASSAULT AND BATTERY.
Under common law, mere words do not constitute assault, and person is not aggressor merely because of epithets used toward another.
2. ASSAULT AND BATTERY.
Where prosecuting witness threatened to whip whoever took his automobile shift keys and defendant, convicted of assault, procured and returned keys, but refused to disclose who took them, stated that he would take it on himself, and asked what prosecuting witness was going to do about it, whereupon prosecuting witness struck defendant, defendant's statements did not constitute assault and did not make him the aggressor, as regards question of self-defense (Code 1930, sec. 1282).
3. ASSAULT AND BATTERY.
Instruction that if defendant armed himself with a deadly weapon and provoked difficulty with prosecuting witness and was the aggressor, and so engaged in such difficulty in which prosecuting witness was wounded, then defendant could not plead self-defense, held erroneous under evidence in cutting off right of self-defense and in omitting element that knife was procured for purpose of being used in difficulty.
APPEAL from the circuit court of Neshoba county. HON. D.M. ANDERSON, Judge.
W.T. Weir, of Philadelphia, for appellant.
We most respectfully submit that in all cases of unlawful assault there is always the law of self defense prevails, and that the state must prove beyond a reasonable doubt and to a moral certainty the charge and in such cases every material element of the crime must be proven as charged. This is elementary law and of course citations are unnecessary.
An assault is any attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with present ability to carry such intention into effect.
3 Cyc. 1022.
The force or violence attempted or offered must be physical and no words, of themselves, can constitute an assault.
State v. Rogers, 29 So. 73; Smith v. State, 39 Miss. 521.
While it is true that our statute gives a person the right to invoke as a defense any insulting words in cases where the defendant is charged with assault, yet in this case there evidently were no insulting words sufficient by any stretch of the imagination spoken by appellant to justify the assault of the prosecuting witness. We are assuming for the sake of argument that the testimony of the prosecuting witness is true. And in the light of his testimony the appellant only straightened himself up and told him that he would take it on himself and asked him what he was going to do about it, and immediately received a severe blow.
Echols v. State, 99 Miss. 683, 55 So. 485.
It is and always has been the law that when a man is assaulted he has the right to repel force with force and to use such force as is necessary to protect himself from unlawful assault. Therefore, the appellant certainly had the right to repel the attack of his adversary using sufficient force as it appeared to him was necessary and in doing so he certainly could use sufficient to stop his adversary.
The court gave the following instruction for the state: "The court further instructs the jury for the State that if you believe from the evidence beyond a reasonable doubt that the defendant Odell Herrington armed himself with a deadly weapon, to-wit: a knife, and provoked a difficulty with Roy Gipson and was the aggressor in said difficulty, and so engaged in said difficulty in which Roy Gipson was cut and wounded, then Odell Herrington cannot plead self defense."
We most respectfully submit that the evidence does not show that appellant at any time armed himself with a knife and provoked the difficulty or was the aggressor in this case. We respectfully submit that this instruction is wholly unsupported by the evidence.
It is error to give an instruction in the absence of evidence on the point.
Johnson v. State, 124 Miss. 429; Cooper v. State, 80 Miss. 175, 31 So. 579; Oliver v. State, 39 Miss. 526; Cothran v. State, 39 Miss. 541; Frank v. State, 39 Miss. 705; Adams v. State, 136 Miss. 298, 101 So. 437; Bailey v. State, 93 Miss. 79, 46 So. 137.
Webb M. Mize, Assistant Attorney-General, for the State.
On a motion for a directed verdict all the testimony for the state must be taken as true and also all reasonable inferences drawn therefrom must be decided in favor of the state.
Justice v. State, 170 Miss. 96, 154 So. 265; Johnson v. State, 168 So. 479; Chisholm v. State, 168 So. 479.
One of the instructions complained of is the second instruction. In the first place, the instruction does not cut off the right of self defense. The instruction merely shows that in the event the defendant was the aggressor that he could not plead self defense.
Ross v. State, 158 Miss. 827, 131 So. 367; Johnson v. State, 140 Miss. 889, 105 So. 742.
Appellant was granted numerous instructions on self defense, and his rights under such plea were given to the jury in detail. The instruction for the state complained of merely gives one view of the evidence showing that if that view is believed that self defense cannot be plead.
Appellant further says that Instruction No. 3 for the state is erroneous. We submit that this instruction announces the correct principle of law. It is not every act of self defense that shows intent to kill. In the case at bar this instruction was particularly applicable to the facts, as under one view of the evidence defendant acted with passion because he was enraged over being accused of taking the keys. It must also be remembered that the difficulty was a fight and under some views of the evidence no premeditated design was shown.
Intent is the element that raises assault and battery to the degree of a felony. If there was no intent, as the jury could have believed under the evidence and as they did believe, this instruction was proper.
Toler v. State, 143 Miss. 96, 108 So. 443.
Most of the issues were in conflict, the state proving facts in one way and the defendant proving them in another. Therefore, the verdict of the jury must stand on appeal as it is the peculiar province of the jury to decide facts on conflicting evidence.
Bond v. State, 130 Miss. 813, 95 So. 87; Harris v. State, 175 Miss. 1, 166 So. 392; Erwin v. State, 168 Miss. 145, 151 So. 177.
The appellant was indicted in the Neshoba county circuit court of the crime of assault and battery, with intent to kill and murder Roy Gipson, was there convicted of simple assault, sentenced to pay a fine of one hundred dollars and to serve sixty days in the county jail, and from this conviction he appeals here.
It appears that the prosecuting witness, Roy Gipson, accompanied by a lady, went to a place known as Riverside Camp, and while in a restaurant, some one took the shift keys of his car, rendering him unable to move or operate it. He became angry and had a good deal to say about the person who took his keys. Odell Herrington, appellant, who was present, stated that if Gipson would carry him to a place called "Busted Knuckle." he would get his keys. Two boys in a truck offered to take them to this place, and when they arrived there, in which place there seems to have been a pool room and beer joint, Herrington went into the building and returned presently with the keys, giving them to Gipson, who identified them as his. Gipson insisted that Herrington had agreed to show him the person who took the keys, stating that he could whip whoever did take them, while Herrington stated that he only agreed to get the keys, and did not agree to point out the person who had taken them. It is shown that Herrington said he would take it on himself, asking Gipson, "What are you going to do about it?" Whereupon Gipson struck him with his fist knocking him against the fender of a car.
There is conflict in the testimony as to how many times Gipson struck Herrington, and whether he was "fixing" to strike him again. There is testimony to the effect that when Herrington came up from the fender, while Gipson was apparently intending to strike him again, Herrington struck what is termed a left-handed blow cutting Gipson on the breast. Gipson turned to his brother, who was standing nearby, and stated that Herrington had cut him, and that the brother started toward Herrington, who then ran.
There were some witnesses who testified that Gipson struck Herrington twice and was preparing to strike him again when he was cut, and others who testified that Gipson had struck Herrington only once and did not have his hand in a striking position when he was cut. Gipson, himself, testified that when Herrington stated he was responsible, he threw out his breast; that Gipson struck him, and suspected he had his fist drawn to strike again when Herrington cut him, the wound being made with a knife, as he expected to have a tough time with Herrington. Gipson stated that he weighed one hundred ninety-five pounds; he supposed Herrington weighed one hundred eighty-five pounds, and he thought Herrington had more experience in fighting than he (Gipson) had.
The appellant, Odell Herrington, testified that while at Riverside camp, a boy about fifteen years old took Gipson's keys and left, stating he was going to "Busted Knuckle;" that he declined to give Gipson the name of the person who took the keys, whereupon Gipson cursed, and when Herrington said if he would take him to "Busted Knuckle" he would get the keys, Gipson said if he could get the keys there, he could get them at Riverside, and when Herrington gave him the keys, Gipson used a vile epithet, stating that he would whip whoever did it, and asked Herrington who it was, and that Herrington said he would take it on himself. That Gipson then struck him, knocking him down, and when he arose Gipson struck him again, and was preparing, apparently, to strike once more, when Herrington cut him with a knife.
As stated above, the witnesses, of whom there were several, disagreed as to the number of times Gipson struck Herrington, and whether he was in a position to strike him once more when he was cut by Herrington. In this condition of the testimony, the court, for the state, gave the following instruction: "The court further instructs the jury for the State that if you believe, from the evidence, beyond reasonable doubt, that the defendant, Odell Herrington, armed himself with a deadly weapon, to-wit; a knife, and provoked a difficulty with Roy Gipson, and was the aggressor in said difficulty, and so engaged in said difficulty in which Roy Gipson was cut and wounded, then Odell Herrington cannot plead self defense."
It seems to have been the view of the district attorney and the court below that Herrington was the aggressor by stating to Gipson that he would take it upon himself, and asking Gipson what he was going to do about it.
Under the common law, mere words do not constitute assault, and a person was not the aggressor merely because of epithets used toward another, but the statutes in this state (Code 1930, sec. 1282) provide that words which by their ordinary acceptation and meaning are considered insulting, and calculated to lead to a breach of the peace, may be given in evidence as justifying assault.
Under neither statute, nor common law, did Herrington's statements constitute assault, and did not make him the aggressor in the difficulty, and the language used, that he would take it on himself, was not such as would be insulting and calculated to lead to a breach of the peace.
Furthermore, the quoted instruction is not technically correct, in that it omits the element that the knife was procured for the purpose of being used in the difficulty, and the hypothesis stated in the instruction cuts off the right of self-defense.
This court has often warned against the giving of instructions cutting off the right of self-defense, and the giving of this instruction supra was error.
It may be that Herrington used excessive force, or unnecessarily used a weapon in the fight, and he may be guilty of assault because thereof. This, however, was a question for the consideration of the jury under proper instructions.
The appellant requested a peremptory instruction, but, under the facts, we do not think he was entitled thereto. As stated, it was a question for the jury to determine from all the facts.
For the giving of the quoted instruction cutting off the right of self-defense, the judgment must be reversed and the cause remanded for a new trial.
Reervsed and remanded.