Opinion
No. 36699.
April 12, 1948.
1. HOMICIDE.
Conviction of manslaughter could not be sustained in view of evidence relating to threats made by deceased that he would kill defendant and to circumstances indicating that defendant before shooting deceased believed deceased was about to consummate the threats.
2. HOMICIDE.
At common law, to justify slaying of another in self-defense there must have been actual danger of loss of life or suffering great bodily harm, but now danger need not be actual, but only reasonably apparent and imminent (Code 1942, sec. 2218(f)).
3. HOMICIDE.
The term "apparent danger," as applied in homicide cases, means such overt demonstration, by conduct and acts, of a design to take life or do some great personal injury as would make killing reasonably apparently necessary to self-preservation or to escape great bodily harm (Code 1942, sec. 2218(f)).
4. HOMICIDE.
The phrase "reasonable ground to apprehend," as used in statute defining justifiable homicide, implies "apparent danger" (Code 1942, sec. 2218(f)).
5. HOMICIDE.
A defendant in murder prosecution is not required to prove that he acted in justifiable self-defense, but he need only raise a reasonable doubt of his guilt of charge of unjustifiable homi-code (Code 1942, sec. 2218(f)).
6. HOMICIDE.
The law of self-defense authorizes action on reasonable appearances, and the danger may be either real or apparent (Code 1942, sec. 2218(f)).
7. HOMICIDE.
The fact that no weapon was found upon or near body of deceased was not conclusive of guilt of defendant who claimed to have shot deceased because of fear that deceased was about to shoot him (Code 1942, sec. 2218(f)).
APPEAL from the Circuit Court of Rankin County.
W.E. McIntyre, of Brandon, and John G. Burkett, of Jackson, for appellant.
Where there is no material conflict in the evidence of eye-witnesses that the defendant committed the homicide in self-defense, there was no question for the jury to pass upon, and the court, in such a case, should grant a defendant's request for a directed verdict of not guilty.
Sides v. State, 96 Miss. 638, 51 So. 465; Hunt v. State, 108 Miss. 588, 67 So. 57; Gandy v. State, 195 Miss. 421, 15 So.2d 685; Cook v. State, 194 Miss. 467, 12 So.2d 137; Leverett v. State, 112 Miss. 394, 73 So. 273; Jones v. State (Miss.), 60 So. 735; Ransom v. State, 149 Miss. 262, 115 So. 208.
Flight of a person accused of crime raises no presumption as a matter of law that he is in fact guilty, but is a mere circumstance which may be admitted in evidence, along with the other evidence in a case, for such consideration as the jury may give to it.
Ransom v. State, supra; 16 C.J. 551.
The State utterly failed to prove venue.
Dorsey v. State, 141 Miss. 600, 106 So. 827; Kitchens v. State, 186 Miss. 443, 191 So. 116; Ussery v. State, 154 Miss. 704, 123 So. 854; Norwood v. State, 129 Miss. 813, 93 So. 354; Slaton v. State, 134 Miss. 419, 98 So. 838; Sullivan v. State, 136 Miss. 773, 101 So. 683; Sandifer v. State, 136 Miss. 836, 101 So. 862. Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
Where there is a conflict in the evidence in a criminal prosecution, a decision of such conflict is for the jury alone; and where there is no improbability on the face of the testimony of the witnesses for one side, the court cannot set such testimony aside merely because of more numerous witnesses for the opposite party contradicting such witnesses.
Ransom v. State, 149 Miss. 262, 115 So. 208.
Flight is always a circumstance for the consideration of the jury. It does not compel the jury to draw inferences of guilt from mere flight when there is a satisfactory explanation. In the present case the defendant immediately left the scene of the crime and was not found for more than nine months, having left the county, and not giving any information or communication as to his whereabouts would tend to show guilt and it would be a strong presumption in the present case.
There is no question of venue involved in this case. It is undisputed in the record that the killing occurred in Rankin County, Mississippi, within one mile of the court house.
The grand jury at Rankin County indicted appellant for the murder of L.C. Mattock, and the petit jury convicted him of manslaughter, for which crime the circuit judge sentenced him to the state penitentiary for a term of ten years.
Appellant was gambling with other Negroes in a "skin game," played with cards, when deceased and his companion, Harris, came upon the scene. Deceased, who was drunk, immediately started an unprovoked row with appellant, who, thereupon, left that game. He went to a nearby group, "shooting craps," where deceased followed him and renewed his self-made quarrel with appellant for the second time, threatening to kill him. Finally, in his drunken anger, deceased left, stating he was going after his "gun," and kill the appellant, without intimating what kind of "gun" it was, whether pistol, rifle or shotgun.
On his way to the gambling site, deceased had left a shotgun at the home of Albert Jones, living between his own home and the gambling place. Appellant, a short time later, went to seek the intercession of the Jones Negro, and request Jones' aid in the prevention of his own death, threatened by the deceased. In this, he was corroborated by Harris. Appellant did not know that Mattock was going to Jones' house, or was therein, since Mattock's declaration caused him to understand that he was going to his home for his gun — not that he was going to Jones' house for it.
However, Mattock was in the home of Jones, having entered still in a drunken rage, after knocking down a harmless old Negro, for no cause at all, and shouting he was going to kill some sons of bitches. While Jones went into a room to get the shotgun of deceased, appellant entered, and immediately deceased cried blasphemously, there is the gray haired son of bitch I am going to kill, or words to that effect. Appellant, at the moment, had a pistol in his pocket, which he had also when deceased twice threatened to murder him at the games, but which he there made no effort to use. Accompanying his threat aforesaid on appellant's arrival, deceased reached his hand in his overalls, which appellant, in view of Mattock's previous hostility, aggression and threats, interpreted as an intention to draw a weapon in consummation of the threats. Both he and Harris, who had come to the Jones' house looking for his wife, so testified. Appellant thereupon pulled his own pistol out of his pocket and fired one shot into the face of deceased, under an eye, as deceased faced appellant. This shot was fatal. Jones and his wife testified that it was night, and the house was not lighted, which was contradicted by Harris, and the physical fact that appellant could see well enough to shoot deceased in the face. Appellant fled, and was arrested and tried some months later.
The theory of the State was that appellant pursued deceased for the purpose of slaying him, which, however, was contradicted by appellant, and Harris, and in our judgment the account of the affair given by Harris and appellant is reasonable, and largely undisputed, except by some negative testimony of Jones and his wife, Anne, in which both stated that they did not hear Mattock's alleged exclamation at the house, when appellant entered the front door. But the old Negro, hereinbefore mentioned, heard the threats before appellant entered, having fled in the meantime. And Harris had heard the threats at the gambling site, and also deceased's menacing statement in the home of Jones. Jones could not see Mattock at the time of the shooting, since he was getting his shotgun for him. His wife could not see him from where she stood, so that neither knew what deceased was doing when he was shot, but she saw appellant fire. Harris saw both deceased and appellant at the exact moment of the slaying, and corroborated appellant in his version of the event. No weapon was found on or near the body of deceased when the sheriff arrived.
We are of the opinion that the verdict of the jury was against the great weight of the evidence. At the common law, to justify the slaying of another in self-defense, there must have been actual danger of loss of life or suffering great bodily harm. Dyson v. State, 26 Miss. 362, 4 Cush. 362, 1 Morr. St. Cas. 710. But now, the danger need not be actual, but only reasonably apparent and imminent. As we held in Evans v. State, 44 Miss. 762, the term "apparent danger," as applied in cases of homicide, means such overt demonstration, by conduct and acts, of a design to take life or do some great personal injury, as would make the killing reasonably apparently necessary to self-preservation or to escape great bodily harm. Section 2218(f), Code 1942, makes homicide justifiable "When committed in the lawful defense of one's own person or any other human being, where there shall be reasonable ground 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 phrase "reasonable ground to apprehend," used in the statute, implies apparent danger. Dillon v. State, 196 Miss. 625, 18 So.2d 457.
It was not required of appellant to prove that he acted in justifiable self-defense, but only that he raise a reasonable doubt of his guilt of the charge against him, unjustifiable homicide. The law authorizes action on reasonable appearances, Scott v. State, 56 Miss. 287; and the danger may be either real or apparent, Blalock v. State, 79 Miss. 517, 31 So. 105; Ingram v. State, 62 Miss. 142; Godwin v. State, 73 Miss. 873, 19 So. 712.
The fact that no weapon was found upon or near the body of the deceased by the sheriff, during his investigation, is not conclusive of the guilt of appellant under all of the circumstances of the case at bar. In Bang v. State, 60 Miss. 571, we laid down the rule that, in order to establish that a homicide was committed in self-defense, it is not essential that the defendant show that deceased actually had a deadly weapon. It is sufficient in that respect if he show that the conduct of deceased was such as to induce a reasonable belief that he had one. We there said: "It would be a hard doctrine to hold that the assailant must have in his hands a deadly weapon to justify the assailed from acting for his defense, in this day of improved weapons, which may be drawn and used with fatal effect in a few seconds; and it would be unmerciful to deny to the accused the benefit of appearances as presented to him and honestly acted on."
The judgment of the trial court is reversed, and the case remanded for a new trial.
Reversed and remanded.