Opinion
No. 35466.
April 10, 1944. Suggestion of Error Overruled May 8, 1944.
1. ARREST. Searches and seizures.
A warrant for defendant's arrest was all that was necessary to justify officers in entering defendant's home, and a search warrant was not required.
2. HOMICIDE.
Where sheriff and deputy sheriff had warrant for arrest of defendant and when they entered defendant's home to make arrest defendant shot the deputy, and there was ample evidence, in murder prosecution, to effect that defendant had no reason to believe that sheriff and his deputy were approaching home of defendant to mob him or to do any other unlawful act, refusal of directed verdict of not guilty was not error
3. CRIMINAL LAW.
Refusal of requested instruction was not harmful error, where instruction given embodied the same principle in fewer words.
APPEAL from the circuit court of Warren county, HON. R.B. ANDESRON, Judge.
Vance W. Good, of Vicksburg, for appellant.
None of the defendant's testimony is contradicted by any of the witnesses for the state but is in many particulars verified or corroborated by them. Also the testimony of the defendant is in accord with the description of the house and other phsical facts in the case, as given by witnesses for the state.
This court has for many years announced the rule of law relative to homicide, that the defendant's explanation of the homicide, not contradicted directly or by fair inference, must be accepted as true.
Bowen v. State, 164 Miss. 225, 144 So. 230; Weathersby v. State, 165 Miss. 207, 147 So. 481.
We contend that the arrest, or attempted arrest, in this case was not properly or legally made, and that it was the duty of the officers to identify themselves to the defendant and inform him that they had come to his home to arrest him before entering his home; Sheriff Buchanan stated that they did not do so but only told his boy who was on the outside of the home. The testimony or statement of the defendant, Hughes, is therefore uncontradicted as to the vital facts of the shooting or killing. We take it that there can be no question that the defendant was entitled to an acquittal if he shot and killed Luckett when he was laboring under the belief or fear that his life, or that of his children, was in imminent danger at the hands of strangers who had come to kill or mob him, even though it turned out afterwards that such danger was not real and that in reality his life or person was in no danger at the time.
Bowen v. State, supra; 30 C.J. 88, 89, Homicide, Sec. 271; 21 Am. Eng. Encyclopaedia of Law 104, 105; 13 R.C.L. 745, 746, Homicide, Sec. 50; 13 R.C.L. 811, Sec. 116.
It is a general rule, expressly affirmed by statute in some jurisdictions, that a person is justified in taking life in defense of his habitation where it is actually or apparently necessary to do so in order to repel another person who attempts to enter in a forcible or violent manner for the apparent purpose of committing a felony therein upon either person or property or of inflicting great bodily harm or of assaulting or offering personal violence to a person dwelling or being therein.
Patty v. State, 126 Miss. 94, 88 So. 498; Weathersby v. State, supra; Harvey v. State, 193 Miss. 561, 10 So.2d 552; Code of 1930, Sec. 995; 30 C.J., Homicide, Sec. 262.
We respectfully submit that an instruction which was requested by the defendant, and refused by the court, should have been given. When the court undertakes to instruct the jury as to the several degrees of homicide and the facts that constitute each as defined by statute, it should also give to them the circumstances that constitute the exceptions mentioned in the statute wherein the killing is declared to be justifiable or excusable. The law of self-defense, when invoked by the proof, should be given to the jury, plainly, directly, connectedly and affirmatively, and in such a manner as to show its applicability to the facts of the case.
13 R.C.L. 812, Sec. 118.
Greek L. Rice, Attorney-General, by R.O. Arrington, Assistant Attorney-General, for appellee.
Appellant argues that the verdict is contrary to the law and evidence and that the evidence on the part of the state is insufficient to support the verdict of the jury and contends that the appellant was the only witness and, therefore, his explanation of the homicide must be accepted as true, citing the cases of Bowen v. State, 164 Miss. 225, 144 So. 230, and Weathersby v. State, 165 Miss. 207, 147 So. 481, and other cases to the same effect. The instant case does not come within the rule as announced in the Weathersby case and others to the same effect for the reason that in this case the defendant was not the only witness. Sheriff Buchanan was present at the time Luckett was killed; therefore, the cases cited by appellant are not in point.
Appellant also contends that the proof does not show that the appellant intended to kill S.J. Luckett. However, in view of our statute defining murder, it is immaterial whether he knew who he was killing.
Code of 1930, Sec. 985.
Appellant also contends that he was justified in killing in defense of home, in order to protect his life, or to prevent great bodily harm, citing Section 988, Code of 1930, clause (e), which section is discussed in the case of Bowen v. State, supra. The facts in the Bowen case are entirely different from the facts in the case at bar. Under our statutes on arrests, the officers had a right to enter the home in a lawful manner and make the arrest, even to the extent of breaking in, if necessary.
Monette v. Toney, 119 Miss. 846, 81 So. 593; King v. State, 185 Miss. 433, 188 So. 554; Code of 1930, Sec. 1228.
Argued orally by Vance W. Good, for appellant, and by R.O. Arrington, for appellee.
Appellant Hughes shot and killed S.J. Luckett, a deputy sheriff of Warren County. He was indicted and convicted of the murder of Luckett, and sentenced to death. From that judgment he prosecutes this appeal.
Hughes lives in Warren County, in the country about five miles north of Vicksburg. Buchanan, the sheriff of that county, and Luckett, one of his deputies, had a warrant for the arrest of Hughes to answer a criminal charge. They went to Hughes' home about four o'clock in the afternoon to make the arrest. In his home at the time were his two daughters, both adults, one of whom had a baby. In the kitchen was a negro servant, and out in the back yard her husband was at work. Sitting on the front steps was a son of Hughes, around 17 or 18 years of age. On the trial neither the daughters nor the son testified; Buchanan and Hughes alone testified as to the killing. Buchanan stated that he asked the son if his father was at home; he answered that he was; Buchanan then stated to the son that they had a warrant for the arrest of his father, and asked him to call his father out, which the son did. His father replied, "I'm not coming out," and thereupon Buchanan and Lockett entered the house to make the arrest. Immediately upon their entrance Hughes shot and killed Luckett. Hughes thereupon fled, and later was arrested. Three witnesses testified that when the arrest was made Hughes stated, "Well, a man can take so much, until he gets tired of taking it, and I've got enough and put a stop to the g____ d____s____b."
Hughes testified that about a week before he and his wife had parted, resulting in her leaving home; that she stated she was going to bring a mob down there and kill him; that he thought when the sheriff and his deputy approached (whom he did not know), they were there to carry out his wife's threat, and that was the reason he shot and killed Luckett. He testified further that on two or three previous occasions some person or persons tried to break into his home at night. Hughes admitted that his son called him to come out, as requested by Buchanan, but that he declined to come because he was afraid they were there to mob him. He stated that he was out in the yard near his home, and saw the sheriff and his deputy as they were approaching; thereupon he went into the home.
Appellant relies upon the principle laid down in Bowen v. State, 164 Miss. 225, 144 So. 230, and other decisions of our court, that a person is entitled to defend his home with force against unlawful entry, and to prevent crime from being committed therein. He contends that he shot for that purpose alone, and that his evidence to that effect is without substantial contradiction; and, therefore, under the authority of the Bowen case, he was entitled to a directed verdict of not guilty. A search warrant was not required. The warrant for his arrest was all that was necessary to justify the officers in entering Hughes' home. Monette v. Toney, 119 Miss. 846, 81 So. 593, 5 A.L.R. 261.
There was ample evidence to the effect that Hughes had no reason to believe at that time that the sheriff and his deputy were approaching his home to mob him, or to do any other unlawful act. The refusal of a directed verdict of not guilty was therefore justified.
Appellant requested an instruction, which was refused by the court, to the effect that if the evidence showed he was laboring under the apprehension that he or his family were in danger of some bodily harm because of the entrance into his home of the sheriff and his deputy, not knowing who they were, he had the right to exert the necessary force to "protect his life or that of his family even to the extent of taking life."
The court gave an instruction in this language: "The court instructs the jury for the defendant that if you believe from the evidence that the defendant had a reasonable ground to believe, and did believe, that he was in immediate danger of great bodily harm at the hands of the deceased, Luckett, then he had a right to use force to protect himself." This instruction embodied the same principle in fewer words than the one refused. Therefore, there was no harmful error in its refusal. Nor was any harmful error committed on the trial.
Affirmed, and execution set for Friday, May 19, 1944.
Affirmed.