Opinion
No. 32572.
November 1, 1937.
1. HOMICIDE.
An instruction that accused could not plead self-defense if she had armed herself while not in danger and then provoked difficulty resulting in homicide was misleading in failing to charge that accused must have armed herself for purpose of provoking difficulty.
2. HOMICIDE.
An accused who armed herself and committed a homicide was not cut off from the right of self-defense if the purpose to provoke a difficulty and to overcome opposition arose after the arming.
APPEAL from the circuit court of Scott county. HON. D.M. ANDERSON, Judge.
Frank F. Mize, and Joe S. Mize, both of Forest, for appellant.
The court granted Instruction No. 3 to the State, as follows: "The court further instructs the jury for the State that if you believe from the evidence in this case beyond reasonable doubt that the defendant, Annie Coleman, at a time when she was not in any immediate danger, real or apparent, of losing her life or suffering some great bodily harm at the hands of Ezekiel Sharp, armed herself with a deadly weapon and provoked a difficulty with Ezekiel Sharp and engaged in such difficulty in which the said Ezekiel Sharp was killed, then the defendant cannot plead self defense."
We submit that there was not evidence sufficient to support this instruction, and by it the appellant was very greatly prejudiced.
The court refused to grant Instruction No. 13 requested by the appellant, as follows: "The court instructs the jury for the defendant that if the deceased was much stronger and larger than the defendant, so much so that the defendant wholly and absolutely was incapable of coping with him in a physical combat and was liable to receive serious and great bodily harm at the hands of the deceased in the event they became engaged in a combat, then the defendant was justified in using a deadly weapon to protect herself from an unjustifiable and deadly attack of the deceased, even though the deceased was wholly unarmed and the defendant was in no danger from the deceased, except such as might be inflicted by the deceased with the hands and feet."
The undisputed evidence in this case is that the deceased was a man weighing from 185 pounds to 200 pounds, six feet and two or three inches tall, and much of a man, with a bad reputation extending over a period of many years and in various sections of this state and other states. The appellant is a woman, weighing around 135 pounds, five feet and one inch high. The difficulty in which deceased lost his life occurred in home of appellant. Yet in the face of these undisputed facts the court gave the State Instruction No. 3 and refused Instruction No. 13 to the appellant.
Hill v. State, 97 Miss. 304, 49 So. 145; Hill v. State, 52 So. 630; Hall v. State, 1 So. 351.
We respectfully submit that the granting of the third instruction to the State and the refusal of the thirteenth instruction to the appellant, which was taken from the Hill case cited above, was fatal error.
W.D. Conn, Jr., Assistant Attorney General, for the State.
This court has held, in many, many cases that where one arms himself and deliberately provokes a difficulty with another and kills such other party, the right of self defense is taken away from such party so arming himself and provoking the difficulty.
The facts of this case, according to the State's theory, show that the deceased was leaving the house; he was unarmed; the appellant armed herself with a loaded pistol and applied vicious language to deceased and when he turned to show his resentment to such language, was shot at twice. He, in order to save himself from death or great bodily injury, undertook to disarm appellant. He was acting wholly in his self defense. The appellant, having armed herself and provoked the difficulty with deceased, and then killed him, cannot plead self defense. The instruction told the jury that if they believed that was what happened in this case, the appellant could not plead self defense.
The State submits that on this record, it was eminently proper to give the instruction.
At the time the gun was fired there had been no physical encounter as between the principals of this homicide and the State submits that the case of Wright v. State, 162 Miss. 592, 139 So. 846, should apply, which case holds that where there is no evidence of physical encounter prior to the shooting, evidence of disparity in the sizes of the principals to a homicide is not admissible. Consequently, an instruction passing that issue to the jury is unwarranted.
Appellant was indicted in the circuit court of Scott county of the crime of murder of Ezekiel Sharp, was tried and convicted of manslaughter, and sentenced to the penitentiary for a term of ten years. From that judgment she prosecutes this appeal.
The homicide took place at a card party. There was a quarrel between appellant and Ezekiel Sharp. Appellant procured a pistol from Craig Smith's suitcase, and fired three shots; one of them killed Sharp, and appellant was shot through the hand by another.
The theory of the state was that appellant armed herself with the pistol for the purpose of provoking a difficulty with Sharp, and, if necessary to overcome him, to use it, and therefore, under the law, she was cut off from the right of self defense. The court undertook to embody that theory in the following instruction: "The Court further instructs the jury for the state that if you believe from the evidence in this case beyond reasonable doubt that the defendant, Annie May Coleman, at a time when she was not in any immediate danger, real or apparent, of losing her life or suffering some great bodily harm at the hands of Ezekiel Sharp, armed herself with a deadly weapon and provoked a difficulty with Ezekiel Sharp and engaged in such difficulty in which the said Ezekiel Sharp was killed, then the defendant cannot plead self defense."
The instruction is fatally defective in that there is left out of it appellant's intention in arming herself. The law is that she must have armed herself for the purpose of provoking the difficulty and overcoming opposition if necessary. If the purpose to overcome opposition arose after the arming, the right of self defense is not cut off. Thomas v. State, 61 Miss. 60; Long v. State, 52 Miss. 23; Allen v. State, 66 Miss. 385, 6 So. 242; Helm v. State, 67 Miss. 562, 7 So. 487; Ross v. State, 158 Miss. 827, 131 So. 367. The instruction was calculated to mislead the jury.
Reversed and remanded.