Opinion
No. 34062.
April 8, 1940.
1. HOMICIDE.
In murder prosecution, instruction to find defendant guilty if jury should believe defendant armed himself and went to victim's premises with premeditated design to kill victim or some member of victim's family, and did kill victim in furtherance of the design, was proper, though not requiring jury to believe that defendant provoked the final difficulty, not requiring jury to find that defendant armed himself for purpose of provoking difficulty and overcoming opposition, and not using the word "abandoned" with respect to defendant's premeditated design.
2. HOMICIDE.
If defendant armed himself with deadly weapon with purpose of killing deceased on sight, and killed deceased pursuant to such intent, the right of self-defense was not available, and it was immaterial whether defendant or deceased provoked the difficulty or was the aggressor immediately before the homicide.
3. CRIMINAL LAW.
Alleged error in giving an instruction for the state conflicting with an instruction granted to defendant was harmless, where instruction for the state was correct and applicable.
GRIFFITH and McGOWEN, JJ., dissenting.
APPEAL from the circuit court of Hinds county; HON. J.P. ALEXANDER, Judge.
L.A. Wyatt, of Jackson, for appellant.
The third instruction granted to the state is fatally defective because it cut off the defendant's plea of self-defense without requiring the jury to find that the defendant provoked the final difficulty.
Hartfield v. State, 176 Miss. 776; Fore v. State, 75 Miss. 727; Prine v. State, 73 Miss. 838; Cannon v. State, 57 Miss. 147.
The instruction is fatally defective because it cut off the defendant's plea of self-defense without requiring the jury to find that the defendant's intention in arming himself was to provoke a difficulty and overcome opposition.
Coleman v. State, 179 Miss. 661.
The instruction is fatally defective because it cut off the defendant's plea of self-defense without requiring the jury to find that the defendant had not abandoned his felonious design.
Ross v. State, 158 Miss. 827; Williamson v. State, 115 Miss. 716; Jones v. State, 84 Miss. 194; Pulpus v. State, 82 Miss. 194; Rogers v. State, 82 Miss. 479; Smith v. State, 75 Miss. 542; Hunt v. State, 72 Miss. 413.
The instruction is fatally defective because it is in direct contradiction to the ninth instruction granted to the defendant.
Hartfield v. State, 176 Miss. 776; Vance v. State, 182 Miss. 840.
It was fatal error to grant to the state an instruction which cut off the defendant's plea of self-defense.
Brown v. State, 191 So. 818; Vance v. State, 182 Miss. 840; Williams v. State, 90 Miss. 319; Herring v. State, 87 Miss. 628; Cooper v. State, 80 Miss. 175; Lofton v. State, 79 Miss. 723; Patterson v. State, 75 Miss. 670. W.D. Conn, Jr., Assistant Attorney-General, for appellee.
As to the instruction to which appellant takes exceptions, the theory of the state, and it is amply supported by the evidence, was that appellant had this first difficulty with the deceased and that he left, stating that he was going to get his gun and come back and kill the whole family. The proof shows, and the defendant admits, that he did go to his home, that he procured his gun, loaded it and then went to the home of deceased and maneuvered himself into shooting distance before he was discovered by any of those present at the home of deceased. He stepped out from behind the crib and fired his gun, killing the deceased. He immediately fled from the scene after threatening to kill others who were present, concealed his gun, and apparently stayed out of sight for some time after the killing.
This court, in a number of cases, has cautioned against the use of this character of instruction. Nevertheless, the court has said that cases have arisen, and may arise, where all the elements necessary to work an estoppel of self defense are present. We think this is one of those cases. The evidence shows the first difficulty and it shows that appellant armed himself and returned to the scene of the killing, not for the purpose of provoking a difficulty, but for the apparent purpose of murdering someone from ambush.
In Durham v. State, 158 Miss. 833, 131 So. 422, the court referred to the cases where this instruction was held to be proper, citing Ex Parte Wray, 30 Miss. 673; Hunt v. State, 72 Miss. 413, 16 So. 753; Thomas v. State, 61 Miss. 60, and Stubblefield v. State, 142 Miss. 787, 107 So. 663; 158 Miss. 827, 131 So. 367.
The instruction presented by the evidence in this case is reminiscent of Woodward v. State, 177 So. 531, and the suggestion of error, 178 So. 469, except that here it was not left to inference as to when and where the gun was procured. In that case the court said that the facts called for an application of the old maxim, "Actions speak louder than words." The court, in the Woodward case, said that the facts there shown were sufficient to justify the court in granting an instruction estopping the plea of self defense.
There was no evidence to show that the defendant provoked any difficulty with the deceased before he shot him. It was purely an assassination under the state's proof.
It is argued that the instruction was erroneous for the further reason that it did not embody the proposition of abandonment. If there were any evidence at all in the record from which the jury could infer that the appellant, in good faith, had abandoned his intention of killing deceased, then it would have been proper for this proposition to be embodied in the instruction. However, we challenge the record upon this matter and say that there is nothing from which it could be inferred in the slightest that the defendant ever, at any time, undertook, in good faith, to abandon that which he had started out to do, and which he did do.
Hanna v. State, 168 Miss. 352, 151 So. 370; Singleton v. State, 71 Miss. 782, 16 So. 295; Boy v. State, 84 Miss. 414, 36 So. 525; Dow v. Town of D'Lo, 169 Miss. 240, 152 So. 474.
If we are correct in our estimate of Instruction No. 3, given for the state, then it was correctly given. If this be true, then if there be conflict between it and any instruction for the defendant, the conflict arises by reason of an incorrect principle in the defendant's instruction. In such case, he cannot complain where the conflict is brought about by an erroneous instruction which he procured the court to give.
Long v. State, 163 Miss. 535, 141 So. 591.
This case presents a situation where it is clearly evident that the right result has been reached. This court has long said that in determining whether to affirm or reverse a conviction it will determine two things: First, whether error has been committed, and, if so, second, whether such error were of such character as to justify a reversal of the conviction.
Comings v. State, 163 Miss. 442, 142 So. 19; Goins v. State, 155 Miss. 662, 124 So. 785; Lott v. State, 168 Miss. 710, 152 So. 488; Garrett v. State (Miss.), 193 So. 452.
Argued orally by L.A. Wyatt, for appellant, and by W.D. Conn, Jr., for the appellee.
Appellant was indicted, tried, and convicted in the Circuit Court of Hinds County of the murder of his father-in-law, John Ross, and sentenced to death. From that judgment, he prosecutes this appeal.
The ground assigned and argued for reversal was the giving of the following instruction for the State: "The Court instructs the jury for the State that, if you believe from the evidence beyond a reasonable doubt, that the defendant, Eddie Lewis, armed himself with a shotgun and went to the premises of John Ross with the premeditated design unlawfully and feloniously to kill the said John Ross or some member of his family and that he did so kill the said John Ross in furtherance of such design, then it will be the sworn duty of the jury to find the defendant guilty of murder, even though you may believe from the evidence, that the deceased John Ross placed his hands on his hips and the defendant believed that his own life was then in danger."
It is argued that its giving was erroneous for the following reasons: (1) Because it did not require the jury to believe that the appellant provoked the final difficulty; (2) it did not require the jury to find that appellant's intention in arming himself was to provoke a difficulty and overcome opposition; (3) it did not embrace any idea of "abandonment"; (4) it conflicted with the ninth instruction granted appellant; (5) and, that this is not a case in which a self-defense estoppel instruction was proper.
Early in the afternoon of the day of the homicide, according to the evidence for appellant, he was abused and assaulted by his father-in-law and a brother-in-law. The evidence for the State tended to show in a very substantial way that thereupon appellant stated he was going home and get his gun and kill the whole family. He went home and got his gun, and about six o'clock went to the home occupied by John Ross, and when the latter appeared shot him to death. The evidence for the State was to the effect that at the time of the shooting, the deceased was not the aggressor in the difficulty — had made no demonstration whatever toward appellant, but that immediately before firing the fatal shot, appellant stated "Oh! G____ D____ you, I have got you now." Appellant testified that immediately before he shot, the deceased threw his hands up to his hips, which he believed was done with the view of pulling a pistol with which to shoot him. In other words, appellant claimed that he shot in self-defense.
In view of the case made by the State, we are of the opinion that the instruction in question was appropriate in its entirety. Instructions varying in language but substantially to the same effect were approved in the cases of Tillman v. State, 164 Miss. 100, 144 So. 234; Durham v. State, 158 Miss. 833, 131 So. 422; Ross v. State, 158 Miss. 827, 131 So. 367; Stubblefield v. State, 142 Miss. 787, 107 So. 663; Hunt v. State, 72 Miss. 413, 16 So. 753; Thomas v. State, 61 Miss. 60; Ex Parte Wray, 30 Miss. 673. If appellant armed himself with a deadly weapon with the purpose of killing the deceased on sight, and in pursuance of such intent, did so (that is what the State's evidence tended to show), then, under the law, it is wholly immaterial which one provoked the difficulty or who was the aggressor immediately before the homicide. In other words, appellant was cut off from the right of self-defense. In a case of this character, it is wholly unnecessary for such an instruction to make any reference as to who was the aggressor in the difficulty.
There is no merit in the contention that the instruction is faulty because it did not require the jury to find that appellant armed himself for the purpose of provoking the difficulty with the deceased and overcoming any opposition on his part. The instruction told the jury that if appellant armed himself with a shotgun and went to the place where deceased was, with the premeditated design to unlawfully and feloniously kill the deceased or some member of his family, and that he did kill the deceased "in furtherance of such design," then, he was guilty of murder.
The instruction is not subject to the criticism that it failed to submit the question to the jury whether the arming to kill was abandoned before the homicide took place. It is true that the instruction does not use the word "abandoned" but it does use the equivalent in that it tells the jury that if appellant armed himself with a shotgun to unlawfully kill the deceased, and did so, "in furtherance of such design," he was guilty. Furthermore, there is no evidence to support the claim that appellant abandoned the original design before the killing.
The contention that the giving of that instruction was erroneous because it conflicts with an instruction granted appellant, we do not pass on because if there is, it is without harm to appellant because, as we have held, the State's instruction was correct and applicable.
The day for the execution of the appellant is set for Thursday, May 9, 1940.
DISSENTING OPINION.
In my judgment, the quoted instruction was erroneous, and the error is heightened when taken in connection with the broad language used by the court in the discussion of it in the main opinion. The correct rule was laid down in Prine v. State, 73 Miss. 838, 19 So. 711, and Fore v. State, 75 Miss. 727, 23 So. 710, and departures from it, as was done in this case, ought not to be allowed.
McGowen, J., concurs in this dissent.