Opinion
No. 32778.
May 10, 1937. Suggestion of Error Overruled June 7, 1937.
1. HOMICIDE.
To supply justification on ground that homicide was committed to prevent commission of felony in dwelling, facts must be such as to sustain belief that killing was reasonably necessary to prevent commission of felony, and felony must be one that was immediate and impending at moment of the killing.
2. HOMICIDE.
Evidence disclosing that deceased made to defendant's wife a proposal for sexual intercourse, that deceased stated he would call on following morning, that wife told defendant, who early next morning concealed automobile and returned to residence, that few minutes thereafter deceased appeared and led defendant's wife to bedroom, whereupon defendant stabbed deceased, held not to entitle defendant to directed verdict of not guilty on ground homicide was committed to prevent commission of felony in his dwelling.
APPEAL from the circuit court of Tishomingo county. HON. THOS. H. JOHNSTON, Judge.
Clark Clark, of Iuka, for appellant.
We take the position that a person has as much right to kill a human being for attempting to violate the chastity of his home as he would have to kill a thief who was breaking into his smokehouse attempting to steal his meat, and our court has so held in the case of McNeal v. State, 115 Miss. 678, 76 So. 625.
Under paragraph F, section 988, Code of 1930, providing "When committed in the lawful defense of one's own person or any other human being where there shall be reasonable grounds to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished," the statute makes this justifiable homicide.
On the theory that the evidence of the defense is uncontradicted and reasonable and the only evidence as to the killing was the confession of the defendant the court should have granted the peremptory instruction for the defendant.
Patty v. State, 88 So. 498; Houston v. State, 78 So. 182; Jarman v. State, 172 So. 869.
The court will observe from this record that the defense in this case was justifiable homicide; that the appellant killed the deceased to protect his wife from being forcibly ravished by the deceased.
Bowen v. State, 144 So. 230; Patty v. State, 88 So. 498.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
In this case, taking the testimony of both appellant and his wife, there is no doubt but that the situation was arranged in advance so as to present an opportunity for the husband to kill deceased. This court, therefore, is presented with the question of whether one may deliberately contrive to bring about a situation, set a trap, so to speak, and having maneuvered one into it, such a situation, under normal circumstances, being one that would justify a killing, kill the victim, and then be heard to plead justification.
The facts must be sufficient to justify the belief of a reasonable man that it appears necessary to kill to prevent such felony from being committed on the person of another before one is authorized to act on apparent danger.
McGehee v. State, 138 Miss. 822, 104 So. 150.
There was no necessity for this killing. Any normal man, upon being informed by his wife that such a thing had happened, either would have proceeded immediately to have straightened the thing out or would never have left the wife in a position where such other could have laid his hands upon her. Appellant's actions can be predicated of no other theory except that he coolly, carefully and deliberately planned to kill Clyde Luttrell and to create a state of affairs in such manner that such killing would have the appearance of being justifiable.
Under such state of facts the state submits that on the defendant's own testimony his plea of justification is without foundation and that his own testimony shows that he is guilty of murder and the jury's verdict of manslaughter was a palpable miscarriage of justice. The court properly refused the requested peremptory instruction.
Appellant and the deceased were kinsmen, lived in the same neighborhood, and worked together on the same public works. The place of their work was located at a distance from their homes, so that it was necessary to travel by automobile and to leave at an early hour in the morning. On the morning preceding the homicide, the deceased stopped at the home of appellant, after appellant's departure, and finding appellant's wife alone, made to her a proposal for sexual intercourse, which was refused, and deceased then stated that he would call on the following morning and compel her Appellant's wife thereupon declared that she would inform her husband upon his return that afternoon of what had happened, to which deceased replied, in substance, that he did not believe she would do so.
Upon appellant's return that afternoon his wife told him of the conduct of deceased and of his threat. Early the next morning, appellant concealed his automobile at a distance from his residence, and returning hid himself in a side room next to the room in his residence used as a main bedroom. The admitted purpose in concealing the automobile was to cause the deceased to suppose that appellant had already left for his place of work.
In a few minutes deceased appeared, and finding appellant's wife in the kitchen, led her to the bedroom, whereupon appellant came out of the side room and with a knife stabbed the deceased to death. The body of the deceased was then taken to, and thrown into a ditch about 50 to 75 yards distant, where it was soon afterwards found.
Upon indictment and trial for murder, appellant was convicted of manslaughter, and appeals, assigning as the principal alleged error that he should have been granted the peremptory instruction requested by him of not guilty, on the ground that the homicide was committed to prevent the commission of a felony in his dwelling house, and upon the person of his wife. We do not think that, under the circumstances stated, the appellant was entitled to a directed verdict of not guilty. Leaving aside the point that the felony which the homicide is alleged to have prevented must be one which was immediate and impending at the moment of the killing, the facts, in order to supply justification, must be such as to sustain the belief that the killing was reasonably necessary to prevent the commission of the felony. It would be a most dangerous doctrine to establish that a party may deliberately prepare the stage for a killing such as was done here, and thereupon rely for acquittal upon the plea that it was to prevent the commission of a felony. There are no reversible errors in the record.
Affirmed.