Summary
finding that when a defendant sees one assailant out of several with a deadly weapon threatening loss of life or great bodily harm, the defendant "does not have to stop to see whether or not the others are armed; he has the right to assume that they are acting in concert, and that each one is acting for all"
Summary of this case from State v. CooperOpinion
No. 35027.
October 12, 1942.
1. HOMICIDE.
Evidence sustained conviction for manslaughter.
2. HOMICIDE.
Where one is attacked by several assailants at the same time, he is justified in acting upon the hostile demonstration of any one of them, and if he is in danger of the loss of his life or of great bodily harm at their hands, he has the right to take the life of any one or all of them if necessary to save himself, although it developed afterwards that only one of them was armed with a deadly weapon.
3. HOMICIDE.
An instruction that if at the time accused killed his wife he was in no danger, real or apparent, of losing his life or of suffering great bodily harm at the hands of his wife, he should be found guilty of murder as charged, was not erroneous, where accused had admitted that he shot and killed his stepson who was approaching him with a deadly weapon, but that he observed, both before and after shooting stepson, that there was no appearance that wife was armed with a deadly weapon.
APPEAL from the circuit court of Wilkinson county, HON. R.E. BENNETT, Judge.
Clay B. Tucker, of Woodville, for appellant.
The court erred in granting the state the following instruction: "The Court instructs the Jury for the State of Mississippi that if you believe beyond a reasonable doubt from the evidence in this case, and to the exclusion of every reasonable hypothesis of the defendant's innocence, that Willie Gordon did then and there wilfully, unlawfully, feloniously and of his malice aforethought kill and murder Eva Gordon, a human being, at a time when he, Willie Gordon, was not in any imminent danger real or apparent of losing his own life or of suffering great bodily harm at the hands of Eva Gordon, then the defendant is guilty as charged and the Jury should so find."
Where one is attacked by several assailants he is justified in acting upon the hostile demonstrations of any one of them.
Black v. State, 65 Tex.Crim. R., 145 S.W. 944; Recen v. State, 58 Tex.Crim. R., 126 S.W. 577; 30 C.J. 32.
This instruction confined the jury in determining the question of Willie Gordon's guilt to what occurred between him and Eva Gordon alone and deprived appellant of the right to act on the hostile attack of Roosevelt Hill, with a knife, and should reverse this case.
Wood v. State, 81 Miss. 408, 33 So. 285.
Where the defendant or the defendant's witnesses are the only eye-witnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge.
Houston v. State, 117 Miss. 311, 78 So. 182; Patty v. State, 126 Miss. 94, 88 So. 498; Wesley v. State, 153 Miss. 357, 120 So. 918, Walters v. State, 153 Miss. 709, 122 So. 189; Gray v. State, 158 Miss. 266, 130 So. 150; Weathersby v. State, 165 Miss. 207, 147 So. 481; Jarman v. State, 178 Miss. 103, 172 So. 869.
Greek L. Rice, Attorney-General, by Russell Wright, Assistant Attorney-General, for appellee.
The right of self defense is said to be founded upon the law of nature, and is not derived from, and is not nor can be superseded by, any law of society. In the absence of a necessity, real or apparent, to defend, the principle is without application and cannot be invoked.
Cotton v. State, 31 Miss. 504.
In the Woods case, cited by appellant, there may have been an apparent necessity when the first of a supposed group of assailants started under the tent after Woods. But where, under the undisputed facts of this case, can there be said to have been an apparent, nay, even a suspicion of a necessity for killing an unarmed woman after Roosevelt Hill had been shot, had turned and run away. There was not only no reasonably apparent danger to him at the time of his action in so shooting her, but even appellant himself does not say she was armed or that even he himself thought that she was in a position to kill or do him great bodily harm.
Under all of the facts and circumstances as disclosed by this record, the jury had ample evidence upon which to convict this defendant of manslaughter.
Argued orally by Clay B. Tucker, for appellant, and by Russell Wright, for appellee.
The appellant, Willie Gordon, a negro man about fifty years of age, shot and killed his wife and her son, Roosevelt Hill, appellant's stepson, using a pistol as his weapon. He was indicted on the charge of the murder of his wife, was tried, convicted of manslaughter, and sentenced to the penitentiary for a term of twenty years. From that judgment he prosecutes this appeal.
Two alleged errors are assigned and argued, namely, whether the verdict of the jury was supported by the evidence, and whether the court erred in giving an instruction for the state, which is in this language:
"The Court instructs the jury for the State of Mississippi that if you believe beyond a reasonable doubt from the evidence in this case, and to the exclusion of every reasonable hypothesis of the defendant's innocence, that Willie Gordon did then and there, willfully, unlawfully, feloniously and of his malice aforethought, kill and murder Eva Gordon, a human being, at a time when he, Willie Gordon, was not in any imminent danger real or apparent of losing his own life or of suffering great bodily harm at the hands of Eva Gordon, then the defendant is guilty as charged, and the jury should so find."
There were no eye-witnesses to the tragedy, except the three parties thereto; therefore, the evidence for both the state and the appellant was largely that of the appellant. There were a few circumstances which had a little, but not much, to do with the question of guilt.
The stepson, Roosevelt Hill, was married, and lived with his wife near the home of appellant. Appellant testified that the tragedy occurred near the intersection of two public highways; that he was stationed there on the lookout for a negro named Clarence Bruce, who had been visiting his home in his absence too often; that while so stationed, his wife and stepson approached the public highway, their appearance indicating that his wife was again separating from him, and was on her way to his stepson's home. She was walking, carrying some sort of bag. The stepson was on his horse. Both were carrying away from appellant's home personal belongings of his wife. That appellant intercepted them, and tried to stop them; that thereupon both his wife and stepson made a "lunge" at him, threatening to kill him; that the stepson had a knife with a long blade; that he thereupon shot and killed his stepson, and then shot and killed his wife. He admitted on cross-examination that his wife was apparently unarmed as she and her son approached, and, also, after he had shot and killed his stepson, and at the time he shot and killed her. He stated, however, that she might have had a weapon in the sack she had in her hand or on her arm.
We are of opinion that the evidence was ample to support the conviction.
The instruction complained of told the jury, in substance, that they should convict appellant if at the time he shot his wife he was in no danger, real or apparent, of losing his life, or of suffering great bodily harm at the hands of his wife, then they should find him guilty as charged.
The criticism of the instruction is that it is in conflict with the principles laid down in 30 C.J. 32; Wood v. State, 81 Miss. 408, 33 So. 285; Black v. State, 65 Tex.Crim. R., 145 S.W. 944; Recen v. State, 58 Tex.Crim. R., 126 S.W. 577. Those authorities hold that where one is attacked by several assailants at the same time, he is justified in acting upon the hostile demonstration of any one of them. That if he is in danger of the loss of his life or of great bodily harm at their hands, he has the right to take the life of any one of them, or all of them, if necessary to save himself, although it develops afterwards that only one of them is armed with a deadly weapon. When he sees one of them with a deadly weapon threatening his life, or great bodily harm, he does not have to stop to see whether or not the others are armed; he has the right to assume that they are acting in concert, and that each one is acting for all.
Those principles have no application to this case. The appellant admitted in his evidence that he shot and killed his stepson who was approaching him with a deadly weapon; but that he observed, both before and after shooting his stepson, that there was no appearance of his wife's being armed with a deadly weapon.
Affirmed.