Opinion
No. 30105.
November 7, 1932.
1. CRIMINAL LAW. In murder prosecution, that instruction on reasonable doubt did not recite allegations against defendant, covered in other instructions, held not error.
Instruction complained of was to effect that jury did not have to know that defendant was guilty before convicting him, but that it was only necessary that jury should believe from all the evidence and circumstances in case beyond reasonable doubt that he was guilty.
2. CRIMINAL LAW.
When all instructions, read together, put governing principles of law to jury, there is no error.
3. HOMICIDE. In murder prosecution, instruction hypothesizing defendant's arming himself with pistol, with intent of using pistol to overcome deceased if necessary, held not erroneous as not based upon evidence.
Instruction on self-defense, stating that if jury believed from evidence that defendant armed himself with pistol, with intent and purpose of using it to overcome, if necessary, his adversary, and, if they believed certain other facts, defendant could not be heard to say that he acted in self-defense, was not erroneous as being without evidence to support it, where evidence for state showed that defendant had threatened life of deceased, that he armed himself with pistol, and that when he met deceased he provoked difficulty in which he killed deceased.
APPEAL from circuit court of Simpson county. HON. EDGAR M. LANE, Judge.
A.M. Edwards, of Mendenhall, for appellant.
The lower court erred in granting the following instruction:
The court instructs the jury for the state that you do not have to know that the defendant is guilty before you can convict him, but it is only necessary that you should believe from all the evidence and circumstances in the case beyond a reasonable doubt that he is guilty; and if you do believe from all the evidence and circumstances in this case, beyond reasonable doubt, that the defendant is guilty, then it is your sworn duty of the jury to so find.
The indictment in this case charges that appellant did then and there unlawfully, wilfully, feloniously and of his malice aforethought kill and murder Horace Jones. Nothing of this is mentioned in this instruction.
An instruction not based on evidence is fatally erroneous if by any means it might mislead the jury.
Cooper v. State, 88 Miss. 175, 31 So. 579.
An instruction for the state is fatally erroneous if it ignores and removes from the consideration of the jury a valid defense supported by evidence.
Suttle v. State, 88 Miss. 177, 40 So. 552.
Only instructions applicable to the evidence in the case should be given.
Canterbury v. State, 90 Miss. 579, 43 So. 678; Prince v. State, 93 Miss. 263, 46 So. 537.
An instruction on an assumption of facts is erroneous.
Cunningham v. State, 87 Miss. 417, 39 So. 531; Stringer v. State, 38 So. 97.
The verdict of the jury and the judgment of the court are contrary to the law and the evidence in the case.
This court said among other things in the case of Mobile Ohio Railroad Co. et al. v. Bennett, 90 So. 133, as follows:
This court is always reluctant to reverse on a finding of fact by a jury, and it is indeed a rare case where it is done, but we think the verdict reached by the jury in this case is contrary to the overwhelming weight of convincing evidence, and for this reason the judgment is reversed, and case remanded.
Clark v. Moyse, 48 So. 721; McFadden v. Buckley, 98 Miss. 28, 43 So. 351; Fore v. Railway, 87 Miss. 218, 39 So. 600; McQueen v. Bostwick, 12 Smedes Marshall 604; Sims v. McIntyre, 8 Smedes M. 327; Barbee v. Reese, 60 Miss. 906.
Herbert Nunnery, Assistant Attorney-General, for the state.
Certainly it cannot be said that the jurors must know that a crime was actually committed. This would necessitate the presence at the time the same was committed, which of course, is unreasonable. It is only necessary to show by competent witnesses, to the satisfaction of the court and jury beyond a reasonable doubt that the crime was committed.
Threats, whether uncommunicated or not, were admissible as evidence to show the feeling that existed toward deceased by appellant and the state of mind and intent.
Muse v. State, 130 So. 693; Smith v. State, 118 So. 710; Shelton v. State, 126 So. 390.
It is true in this case there is no direct testimony that the appellant armed himself for the specific purpose of going to kill the deceased, but according to the evidence it is clear that he had made threats for over two weeks prior to the killing of the deceased, and show that he was awaiting the occasion to kill him, and circumstances warrants the jury in assuming that the appellant armed himself for the purpose of provoking an argument and killing the deceased and that therefore the instruction given the state was warranted by the evidence.
Argued orally by A.M. Edwards, for appellant, and by Herbert Nunnery, for the state.
Appellant was indicted and convicted in the circuit court of Simpson county of the murder of Horace Jones and sentenced to the penitentiary for life. From that judgment he prosecutes this appeal.
The evidence for the state was to the effect that appellant had threatened the life of the deceased; that he armed himself with a pistol; that he and the deceased met, and appellant provoked the difficulty in which the deceased was killed; that appellant was the aggressor and shot the deceased in the back three times while the latter was fleeing from him. The evidence for appellant was sharply in conflict with that for the state. There was no real conflict in the evidence that appellant shot the deceased in the back three times with a pistol, resulting in death, but the evidence on behalf of appellant tended to show that the deceased was the aggressor, attempting to draw his pistol when the appellant shot in self-defense. The evidence tended to show that the deceased had a pistol, but there was a conflict as to whether or not it had been fired. It was not produced at the trial.
Appellant assigns and argues as error the action of the court in giving the following instruction for the state: "The court instructs the jury for the state that you do not have to know that the defendant is guilty before you can convict him, but it is only necessary that you should believe from all the evidence and circumstances in the case beyond a reasonable doubt that he is guilty; and if you do believe from all the evidence and circumstances in this case, beyond a reasonable doubt, that the defendant is guilty, then it is your sworn duty of the jury to so find."
Appellant's criticism of the instruction is in the following language: "The indictment in this case charges that appellant did then and there unlawfully, wilfully, feloniously and of his malice aforethought kill and murder Horace Jones. Nothing of this is mentioned in this instruction." It was not necessary that the instruction cover every phase of the case. All of the instructions are to be read and considered together — they are to piece each other out — and when this is done, if the governing principles of law are put to the jury, there is no error. This was done in this case. The decisions of our court declaring this principle are numerous, too numerous to cite.
Appellant assigns and argues as error the action of the court in giving the following instruction for the state: "The court instructs the jury for the state that if you believe from the evidence in this case, beyond a reasonable doubt, that the defendant, Ammons Tillman, armed himself with a deadly weapon, to-wit, a pistol, with the intent and purpose of using the same to overcome, if necessary, his adversary, Horace Jones, and while being thus armed went down on the road where the killing is said to have occurred, and provoked or brought about a difficulty with the deceased in which difficulty defendant used said deadly weapon, or a deadly weapon, and killed deceased, then in that event the defendant cannot be heard to say that he acted in self defense, unless you further believe from the evidence that the defendant acting in good faith attempted to abandon the difficulty finally."
Appellant's criticism of this instruction is that there was no evidence in the case to show that he armed himself with a pistol with the purpose and intent of using it to overcome the deceased, if necessary. We do not think the criticism well founded. The evidence for the state showed that appellant had threatened the life of the deceased; that he armed himself with a pistol, and when he met the deceased provoked the difficulty in which he killed him.
We are unable to see any harmful error that was committed in appellant's trial.
Affirmed.