Opinion
No. 35793.
April 9, 1945.
1. HOMICIDE.
In prosecution for murder resulting in conviction for manslaughter, conflicting evidence presented question for jury.
2. HOMICIDE.
Instruction that, if defendant armed himself for his own protection only and went on a peaceful mission to home of deceased for purpose of making inquiry about defendant's wife, defendant had a right to go to the home of deceased and to carry a deadly weapon with him on the mission, was properly refused as abstract and as argumentative.
3. CRIMINAL LAW.
Refusal of an instruction substantially covered in instructions given was not error.
APPEAL from the circuit court of Attala county, HON. JNO. F. ALLEN, Judge.
Morgan Thornton, of Kosciusko, for appellant.
In this case the only evidence as to how the homicide occurred is the evidence of the appellant himself who testified that he went on a peaceful mission, that he armed himself with a deadly weapon for protection only, that he was not even mad at the deceased, and that when he approached the deceased about taking his wife's clothes away the deceased in a threatening manner stepped off the porch with his knife and started toward him when he shot. While it is true that no man has a right to take the law in his own hands to avenge supposed or real grievances inflicted upon himself or any member of his family, yet appellant did not violate this wise principle of law if he, after learning that the deceased had aided and abetted his wife in leaving defendant, speedily sought deceased for an explanation and for a peaceful adjustment of the matter; and in seeking this end he had the further right, with the lights before him, to arm himself, not with the intention to provoke a difficulty, but to protect himself, if necessary, in self-defense, and the refusal of an instruction to this effect was error.
Echols v. State, 99 Miss. 683, 55 So. 485.
The court has long been committed to the doctrine that where the defendant himself is the only eyewitness to a homicide and according to his testimony the death occasioned was accidental or justifiable, and where his version is reasonable, and is not substantially contradicted in any particular by other witnesses or by the physical facts, or facts of common knowledge, then he is entitled to a directed verdict.
Harvey v. State, 193 Miss. 561, 10 So.2d 552; Thornton v. State, 178 Miss. 304, 170 So. 541; Weathersby v. State, 165 Miss. 207, 147 So. 481; Walters v. State, 153 Miss. 709, 122 So. 189; Wesley v. State, 153 Miss. 357, 120 So. 918; Houston v. State, 117 Miss. 311, 78 So. 182; Patty v. State, 126 Miss. 94, 88 So. 498; Hawthorne v. State, 58 Miss. 778.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
The most that can be said of the evidence in this case is that it was conflicting, and our court has held that where the evidence is conflicting a peremptory instruction should not be given.
Evans v. State, 159 Miss. 561, 132 So. 563.
It was the province of the jury to pass upon the credibility of witnesses and the discrepancies in their testimony given at one trial and then at another. It is not for the Supreme Court to say that witnesses were unworthy of belief.
Wells v. State, 112 Miss. 76, 72 So. 859.
The appellant contends that he was entitled to an instruction under the authority of Echols v. State, 99 Miss. 683, 55 So. 485, wherein the Court merely made an observation. So far as I can find, our Court has never reduced this observation or said in plain terms that a person could arm himself and go kill his neighbor just so long as he was testifying that he was on a peaceful mission. There are many exceptions, of course, where a person may arm himself with a deadly weapon and use it in defense of his life, but there are no circumstances in this regard under any consideration of the facts that would give the appellant the benefit of this instruction, for he himself testified that he and the deceased were on good terms. Another criticism of this instruction, as I see it, is that it is confusing and misleading and it is difficult of comprehension of law. Of course, it is suitable for a jury argument. Another reason that the lower court was correct in refusing it was for the reason that in effect and principle the same instruction was given the defendant, and, lastly, it was correctly refused for the reason that the state did not invoke the theory or principle of law as to aggression but submitted the issue upon justification alone for the taking of human life.
Under the facts in this case, the state would have been entitled to an instruction shutting off the appellant from pleading self-defense.
Woods v. State, 183 Miss. 135, 183 So. 508; Woodward v. State, 180 Miss. 571, 177 So. 531, 178 So. 469.
Where the testimony for the state in a criminal prosecution tends to establish murder, and that of the defendant tends to establish self-defense, but the several witnesses testifying contradict each other or give divergent views of what took place, a jury has a right to believe a portion of one witness' testimony and reject another portion, and this is true of all witnesses, and where by so doing a possible finding of manslaughter is justified it cannot be said that the evidence does not support a conviction of manslaughter.
Triplett v. State, 159 Miss. 365, 132 So. 448.
Appellant was convicted, in the Circuit Court of Attala County, of manslaughter on an indictment for murder of Mose Lewis, another negro. From that conviction and judgment he appeals, and assigns two errors: (1) Refusing an instruction requested by appellant, hereinafter set out; (2) refusing appellant's motion for a directed verdict in his favor.
The verdict of the jury was reached on conflicting testimony. It would serve no useful purpose to set it out here, but suffice it to say, in our judgment, appellant was fortunate the jury did not convict him of murder, which would have been justified by the evidence. In view of the conflicting nature of the evidence, we think the court below was correct in overruling the motion for a directed verdict of acquital, as conflicting evidence presents a question for decision by the jury. Ransom et al. v. State, 149 Miss. 262, 115 So. 208; Byrd v. State, 154 Miss. 742, 123 So. 867; Carter v. State, 140 Miss. 265, 105 So. 514; Sullivan v. State (Miss.), 192 So. 441, and many others.
Appellant complains of the refusal to give him this instruction: "That while no man has the right to take the law in his own hands to avenge grievances either real or imaginary that have been inflicted on a member of his family or himself, yet the court tells you that the defendant did not violate this wise principle of law if after learning that his wife had gone away from his home and that deceased aided and abetted her in leaving his household or the household of Nathan Hill and that he sought the deceased for explanation and for a peaceful understanding of the matter or for the purpose of inquiring about the whereabouts of his wife, and in seeking this end that he with the lights before him had a perfect right to arm himself, not with the intention of provoking a difficulty with the deceased, but to protect himself if necessary in self-defense. Therefore, if you believe from the evidence in this case or if there is any reasonable doubt arising from the evidence or from the want of evidence that Lloyd McMillan armed himself for his own protection only and went on a peaceful mission to the home of Mose Lewis, the deceased, for the purpose of making inquiry about his wife, then you are instructed that he had a right to go to the home of deceased and to carry a deadly weapon with him on said mission."
An examination of the case of Echols v. State, 99 Miss. 683, 55 So. 485, reveals that this instruction was formulated from discussion by the court, and is so colored as an abstract proposition, as to come within the condemnation of Scott v. State, 166 Miss. 6, 148 So. 239. We call attention to what this Court said in Crawford v. City of Meridian, 174 Miss. 875, 165 So. 612, 613: "We would caution counsel in all cases against copying in instructions that portion of any opinion which belongs to the discussion part of the opinion, as was done here." It was, therefore, not error for the trial judge to refuse this instruction for this reason. The instruction should not have been given for the additional reason that it is argumentative. Carter v. State, 140 Miss. 265, 105 So. 514.
This instruction was substantially covered in another granted appellant, but without the objectionable features of the condemned instruction, as follows: "The Court instruct the jury for the defendant, Lloyd McMillan, that if you believe from the evidence in this case that the defendant went to the home of the deceased, Mose Lewis, for the purpose of seeking information as to the whereabouts of the defendant's wife, and that upon reaching the home of deceased and while making such inquiry in a lawful and peaceful manner, the deceased became angry and started toward the defendant in an angry manner, opening a knife as he advanced, and that the defendant thereupon shot the deceased, then if you believe from the evidence that he as a man of ordinary prudence, believed and had a right to believe that he was in danger of losing his life or receiving some serious bodily harm, then he was justified in shooting the deceased, then you will return a verdict of `not guilty'." It was held by this Court in Scott v. State, supra, that refusal of an instruction substantially covered in instructions given was not error.
Since, in our opinion, the court below committed no error in refusing to sustain appellant's motion for a directed verdict on the conflicting evidence before the jury; and further committed no error in refusing the instruction claimed to be error, for the reasons herein given, the action of the trial court will be and is affirmed.
Affirmed.