Opinion
No. 35285.
December 6, 1943.
1. HOMICIDE.
Evidence of defendant's guilt of assault with intent to kill was sufficient for jury.
2. CRIMINAL LAW.
Although attendant circumstances may authorize a deduction by jury, that a defendant, who does not testify in explanation of his conduct, was acting in self-defense, a jury should not be encouraged by instructions to seek justification in a theory of defense which the evidence does not warrant and which defendant himself does not assert.
3. CRIMINAL LAW.
In prosecution for assault and battery with intent to kill, where defendant did not justify his acts as an attempt to defend his home or property and the testimony justified only a deduction that he was acting in the defense of his father, failure to instruct on the right to defend his habitation was not error.
APPEAL from circuit court of Jackson county, HON. L.C. CORBAN, Judge.
Mize, Thompson Mize, of Gulfport, for appellant.
The testimony of the witnesses for the defendant showed that E.J. Labbous, the father of the defendant, owned and operated a store, attached to which were living quarters and quarters for the defendant S.E. Labbous and his family. On the premises was a trailer camp, and one George Ruch had rented part of the property for his trailer and had a wire fence with a locked gate surrounding the trailer. The trouble occurred after midnight. E.J. Labbous had gone into the store, or was preparing to go into the store, to put soft drinks in the ice cooler so that they would be ready for sale the next day. Ruch's testimony showed that he heard dogs barking and that his wife called him and told him that there was a man outside back of the Labbous store, and this man was trying to do something. Ruch recognized the man as Mr. Simpson, the man who was shot. Simpson advised him that he was trying to get into the Labbous store, and Ruch then saw scuffling, and Mr. E.J. Labbous called for help, and Ruch went in to get the key to his gate. He heard a shot fired, and when he came out he saw Mr. Labbous and saw a man on the ground but he could not identify the man on the ground. This happened in back of the store where the trailer was located. The first attack was on the side of the store. E.J. Labbous's testimony was much to the same effect, and the testimony further showed that Mrs. S.E. Labbous awakened her husband who was sleeping and had told him that someone was trying to kill the defendant's father. She saw the men fighting, and the defendant jumped up and put his pants on, and Mrs. Labbous ran into the store and soon heard a shot, and the defendant ran back and got a gun. Mr. E.J. Labbous was calling for his son to help him.
The defense was self-defense on the part of S.E. Labbous, defense of E.J. Labbous by S.E. Labbous, and defense of the property of the Labbouses at a time when the store was being burglarized. The question of self-defense and in defense of another person was recognized in the state's instruction, but the question of defense of property at a time when a felony was being committed, that is the store being burglarized, was ignored by the state in its instruction. The defendant requested and was refused an instruction on this question, said instruction being as follows: "The Court instructs the Jury for the defendant that under the law of this State that a person is justified in defending his self when any felony is commit upon him or upon or in any dwelling house in which such person shall be."
We therefore see that this defense made in the trial was completely ignored and the jury was not allowed to consider that question.
The law has long been that a person may use necessary force as is reasonably necessary to protect his property, real or personal, and where the reasonable force is resisted, the person is justified in killing.
Boykin v. State, 86 Miss. 481, 38 So. 725.
The testimony amply shows that Simpson, the man who received the gunshot wound, was attempting to get into the store. It shows that E.J. Labbous was notified of this fact by Mr. Ruch. It shows that there was an altercation; that there was scuffling and fighting, and that Mr. E.J. Labbous called for help. It further shows that S.E. Labbous responded to his father's call and tried to help his father, and that reasonable force was resisted. Two shots were fired; a killing did not take place. However, Simpson was wounded. An issue was therefore raised for the jury, and it was the jury's province to decide whether or not the defendant had the right to resist and whether or not he used more force than was reasonable and whether or not he was justified in shooting. The record also shows that Simpson and his companions were charged with burglary, even though they were acquitted on a preliminary hearing.
All of this evidence made an issue for the jury, and it was error for the court to refuse to give the defendant an instruction on this proposition, and it was error for the state's instruction to ignore the issue of defense of a habitation and preventing a felony from being committed.
Bowen v. State, 164 Miss. 225, 144 So. 230; Leverett v. State, 112 Miss. 394, 73 So. 273; Code of 1930, Secs. 1224-1235.
Greek L. Rice, Attorney-General, by R.O. Arrington, Assistant Attorney-General, for appellee.
There is a sharp conflict in the facts leading up to the shooting, as well as in the inferences properly deducible from the physical facts as they bear upon the respective versions of the shooting as related by the state's witnesses and by those of appellant. Appellant himself did not testify, and no witness for the defendant testified that he saw appellant shoot the prosecuting witness. No one testified to any fact which would authorize the jury to pass on the question as to whether such shooting was reasonably necessary to protect the property of the appellant or his father.
This court must necessarily uphold the trial court. There is not a syllable of testimony on behalf of the state's witnesses from which any possible inference might be drawn, authorizing the jury to pass upon a question of whether or not the shooting was in self-defense. None of the three defense witnesses saw the appellant shoot Simpson and even appellant's father states that Simpson had left and was shot between the first and second tourist camp, almost half a block away. The father of appellant having testified that Simpson was there when he, the father, hollered and then turned and ran up the street, and that the boy came out after Simpson had run, leaves not only no question of self-defense, but shows conclusively that the shooting was not in necessary self-defense of anybody or of any property.
Argued orally by Webb M. Mize, for appellant.
Appellant was convicted of an assault and battery with intent to kill. The testimony raised an issue of guilt for the jury. The assignments of error include only the omission from the state's instruction to include the defense of appellant's habitation as a justification for the shooting of the prosecuting witness and the refusal to grant the defendant an instruction including this element.
The testimony taken most favorably for the defendant shows that he was asleep when an altercation arose outside the building occupied by appellant both as a store and a home. He was awakened by his wife who called to him that persons were trying to kill his father. Appellant aroused himself, procured a rifle and ran out of the house. His father was then engaged in scuffling with three men, and after striking one of them with a pistol, he fired one random shot.
While it is not clear whether Simpson was shot during the encounter or when withdrawing from the scene, the testimony authorizes a finding that he was shot in the back of the shoulder and was later found from fifty-five to seventy-five feet from the corner of the Labbous store. There is no question but that appellant did the shooting. Appellant did not testify. He did not justify his act as an attempt to defend his home or property. While it is true that attendant circumstances may authorize a deduction by a jury that a defendant, who does not testify in explanation of his conduct, was acting in necessary self-defense, a jury should not be encouraged by instructions to seek justification in a theory of defense which the evidence does not warrant and which the defendant himself does not assert. Baker v. State, 192 Miss. 406, 6 So.2d 315. Bowen v. State, 164 Miss. 225, 144 So. 230, cited by appellant is not in point. In that case the defendant testified to the facts and sought to justify her act as an attempt to protect her home against invasion. The testimony here justifies only a deduction that the appellant was acting in the defense of his father.
Affirmed.