Opinion
No. 33312.
October 10, 1938.
1. CRIMINAL LAW.
Where special venire was drawn without request by attorneys appointed to defend defendant for further time to confer with defendant, and where a disinterested policeman was available at trial who, to defendant's attorneys' knowledge, was able to testify relative to fresh wound of defendant, overruling defendant's application for a continuance when case came on for trial because of absence of doctor who treated wound and who, unknown to defendant's attorneys, had moved to another town, was not an abuse of trial court's discretion.
2. CRIMINAL LAW.
To deny defendant a continuance after special veniremen have appeared in court, where no intervening circumstances or events have transpired between date of drawing the venire and date of trial, is not an abuse of discretion, especially where the special venire was drawn upon application of defendant.
3. HOMICIDE.
An instruction which deprives defendant of plea of self-defense should never be given except where proof on behalf of state clearly shows that defendant, armed with deadly weapon for purpose, becomes aggressor in difficulty in regard to which plea is invoked.
4. HOMICIDE.
An instruction, that, if jury believed beyond reasonable doubt that defendant made up her mind to maliciously kill deceased and that, armed with knife for such purpose, defendant followed deceased to deceased's home and attacked and killed deceased without abandoning such purpose, defendant was not entitled to set up any act of deceased either before or at time of killing as defense to such killing, properly instructed jury as to elements state was required to establish before defendant would be deprived of her plea of self-defense.
5. HOMICIDE.
Evidence warranted instruction that, if jury believed beyond a reasonable doubt that defendant made up her mind to maliciously kill deceased, and, armed with knife for such purpose followed deceased to deceased's home and attacked and killed him without abandoning such purpose, defendant was not entitled to set up any act of deceased by way of defense to such killing.
ON SUGGESTION OF ERROR. (Nov. 7, 1938.) [184 So. 311.]1. HOMICIDE.
A person who provokes a difficulty, armed in advance intending if necessary to use his weapons to overcome his aggressor, deprives himself of the right of self-defense.
2. HOMICIDE.
A defendant who was accustomed to carry knife which was used in killing and who, while armed with knife, followed and apprehended the deceased and provoked difficulty with him, being the aggressor and intending all the while to use the knife, if necessary, to overcome him, was deprived of right of self-defense.
3. HOMICIDE.
An instruction that if jury believed beyond a reasonable doubt that defendant made up her mind to maliciously kill deceased and that, armed with knife for such purpose, defendant followed deceased to deceased's home and attacked and killed deceased without abandoning such purpose, defendant was not entitled to set up any act of deceased, either before or at time of killing, as defense to such killing was not reversible error, under evidence.
4. CRIMINAL LAW.
On suggestion of error on which it was urged that former opinion was in conflict with prior opinion of court, the Supreme Court would re-examine record in relation to points not theretofore argued as error in one of instructions complained of as well as those previously emphasized in brief, where counsel representing appellant on brief did not appear for her in trial court and no motion for new trial was made in trial court.
APPEAL from the circuit court of Adams county; HON. R.E. BENNETT, Judge.
Engle Laub, of Natchez, for appellant.
All persons accused of crime should be allowed a reasonable time in which to prepare for their defense, when they are brought before the courts to answer the charges preferred against them.
Coker v. State, 89 So. 222, 82 Fla. 5.
In Moore v. State, 52 So. 971, 59 Fla. 23, it was held that not only the accused but also his counsel are entitled to a reasonable time in which to prepare for trial after the accusation is made and what is a reasonable time is to be determined from all the facts in the case
Section 26 of the Mississippi Constitution contemplates a fair and impartial trial of a defendant and a fair and impartial trial contemplates reasonable time to investigate, prepare and present a defense.
Christie v. State, 114 So. 450, 94 Fla. 469.
We respectfully submit that there was error in Instruction No. 2 given the State. This instruction omits the element that the deceased, Son Tyler, at the time of the killing was not then and there an aggressor in the fight or, in others words, leaves out the element that the defendant, Lucille Woods, would not have been justified even though she killed in self-defense.
The right of self-defense is always present. The right of self-defense is never taken away from any defendant.
Blalock v. State, 31 So. 105, 79 Miss. 517; Hartfield v. State, 170 So. 531, 176 Miss. 776; Coleman v. State, 176 So. 714, 179 Miss. 661.
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. The instruction nowhere clarifies or carries this thought and in that regard the instruction was capable of no legitimate use although it was usable to befuddle the jury in argument.
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.
A great deal of what we have had to say in reference to the second instruction is applicable to the third instruction obtained by the state.
The instruction no where contains the language "intent" or "specific intent," which is the term employed in instructions covering crime.
It is essential to the existence of "malice aforethought" not only that there shall have been a design or intention to effect the death of the person killed, but that the killing shall have been without justification.
Ellis v. State, 66 So. 323, 108 Miss. 62.
Engle Laub, of Natchez, for appellant on Suggestion of Error.
The opinion in this case as rendered is at variance with the principles of law as enunciated by this court through Division "A" on September 12, 1938, in the case of Vance v. State, No. 33, 130, and reported in 183 So. 280, the official report of which case in the advance sheets has come out since the rendition of the opinion in the instant case of Lucille Woods v. State.
In the Vance case the instruction was as follows: "The court instructs the jury for the state that the law tolerates no excuse and accepts no justification for the shooting of one individual by another upon a plea of self defense, unless it be reasonably necessary so to do in order to save the defendant from great bodily harm or to save the life of the individual who fires the shot, at the very time the fatal shot was fired; and in this case if you believe from the evidence beyond a reasonable doubt that the defendant, J.C. Vance, wilfully, unlawfully, feloniously and of his malice aforethought shot and killed E.C. Harrington at a time when he, the said J.C. Vance was not in any immediate danger, real or apparent, of losing his life or of suffering great bodily harm at the hands of the said E.C. Harrington, then the defendant, J.C. Vance, is guilty as charged and it is the sworn duty of the jury to so find. The court further instructs the jury for the State that the malice aforethought necessary to constitute murder in this case need to have existed for only an instant before the fatal shot was fired."
Now compare the Vance instruction with Instruction No. 2 in the instant case and Your Honors will see that both instructions tell the jury the same thing in practically the same words. But what has our Supreme Court in Division "A" to say in the Vance case about such an instruction as being prejudicial to the rights of a defendant. It says, through Mr. Justice McGOWEN, as appears under head note under Point 4 of the decision the following: "Under all the evidence as to what occurred in the store during the difficulty, the phrase `at the very time the fatal shot was fired' circumscribed the right of self-defense within too narrow limits, and has been in principle heretofore disapproved by this court. Fortenberry v. State, 55 Miss. 403; Ellerbee v. State, 79 Miss. 10, 30 So. 57; Bang v. State, 60 Miss. 571; Dyson v. State, 26 Miss. 362; Case v. State, 17 So. 379. It was harmful in this case."
When appellant's brief was written in this instant case the Vance v. State case, supra, was unknown to the writer of this brief, yet the records in the two cases and the briefs point out great similarity in certain conditions between the two cases. Certainly in the Vance case the appellant, by his utterance of the epithet which he uttered, precipitated a quarrel with the deceased and the facts make the appellant in that case just as much, or more, of an aggressor than do the facts, as demonstrated by the record and the brief make the appellant in the instant case.
In the Vance case, 183 So. 280, the court under the facts in that case condemned Instruction No. 1 for the State which was in the following words:
"The court instructs the jury for the State that if you believe from the evidence in this case beyond a reasonable doubt that in the difficulty in which E.C. Harrington lost his life, that the defendant, J.C. Vance, was the aggressor and the provoker of the difficulty, and that he prepared himself for it by arming himself with a deadly weapon, to-wit: a pistol, and in fact was armed at the time he entered the difficulty with the deceased, and with intention and design to carry out his original intention to seek out the deceased for the purpose of provoking a difficulty with him and using his weapon if necessary to overcome the deceased, and that he sought out the deceased and brought on and provoked the difficulty being the aggressor therein intending to use his pistol and overcome his adversary, if necessary, and that in pursuance of such former design, that he then killed the deceased, E.C. Harrington, with the said pistol aforesaid then the defendant, J.C. Vance, is guilty of murder and he cannot, according to the laws of this State, be heard to say he acted in self defense, even though he killed the said E.C. Harrington under such circumstances as otherwise would appear to the jury to be in self defense."
In the instant case of Lucille Woods v. State, the court granted this instruction:
"That if the jury believe beyond a reasonable doubt from the evidence in this case that the defendant Lucille Woods and Janie Allen, alias Shorty, wrongfully had their minds made up prior to the time of the killing to wilfully, feloniously, unlawfully and maliciously kill and murder the deceased, Theodore Lewis, alias Son Tyler, and that armed with a knife for such purpose, they followed the deceased several blocks to his home, intending to carry out such unlawful purpose so formed in their minds and that, so armed and with such unlawful purpose in their minds and with the purpose of carrying out such intent on their part, to wrongfully, wilfully, maliciously, feloniously and of their malice aforethought kill and murder said deceased, attacked deceased and Lucille Woods so killed him, and that they, at no time prior to the time of the actual killing of the deceased, abandoned such purpose, then, and in that event, Lucille Woods, would not be entitled to set up any act or conduct of the deceased either before or at the time of the killing by way of defense of such killing."
We respectfully submit that the instruction, except for a change in verbiage, is identical in meaning, import and intent and we respectfully submit that the facts in both cases were such that the instruction was not sustained by the evidence in either case.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
Taking the record and being governed thereby entirely, it appears that after the application for continuance was denied there was not that continued diligence manifested, as required by the law. No motion for a new trial was offered showing that anything was ever done. Neither the witness nor his affidavit was produced. In other words, the witness has never stated what his testimony would be, although this court judicially knows that Hattiesburg, in Forrest County, is only a relatively short distance from Natchez, in Adams County, where the case was tried, and it would have been a simple matter to have produced the witness, or to have produced an affidavit from him showing just what his testimony would have been at the trial, or would be at some future trial.
That no error may be predicated upon the refusal of a continuance under circumstances portrayed by this record, see Lamar v. State, 63 Miss. 265, where the requirements are set out. The rule there laid down has been uniformly applied by the court.
Ware v. State, 133 Miss. 837, 98 So. 229; McKnight v. State, 171 Miss. 152, 157 So. 351; Coward v. State, 158 Miss. 705, 131 So. 254; Robertson v. State, 157 Miss. 642, 128 So. 772; Blevins v. State, 169 Miss. 868, 154 So. 269; Hinton v. State, 175 Miss. 308, 166 So. 762.
As to instruction shutting off self defense, this type of instruction is permissible only when the facts of the case justify it. If the necessary factual elements are present, the state is entitled to it.
Ross v. State, 158 Miss. 827, 131 So. 367; Durham v. State, 158 Miss. 833, 131 So. 422; Stubblefield v. State, 142 Miss. 787, 107 So. 663; Tillman v. State, 164 Miss. 100, 144 So. 234.
The other instructions complained of have to do with elements of the crime of murder. The jury convicted of manslaughter and this court will, therefore, presume that this instruction, though erroneous, did not prejudice the defendant's case at all.
Gregory v. State, 152 Miss. 133, 118 So. 906; Edwards v. State, 124 So. 764; Thomas v. State, 124 So. 766.
The appellant, Lucille Woods, and Janie Allen, were jointly indicted for the murder of one Theodore Lewis, in the Circuit Court of Adams County. The appellant obtained a severance and was convicted of manslaughter. She urges two grounds for a reversal of the case: (1) That the court below erred in overruling her application for a continuance of the cause to a later day in the term, and (2) in giving the following instruction on behalf of the State: "The Court Instructs the Jury for the State that if the Jury believe beyond a reasonable doubt from the evidence in this case that the defendant Lucille Woods and Janie Allen, alias Shorty, wrongfully had their minds made up prior to the time of the killing to wilfully, feloniously, unlawfully and maliciously kill and murder the deceased, Theodore Lewis, alias Son Tyler, and that armed with a knife for such purpose, they followed the deceased several blocks to his home, intending to carry out such unlawful purpose so formed in their minds and that, so armed and with such unlawful purpose in their minds and with the purpose of carrying out such intent on their part, to wrongfully, wilfully, maliciously, feloniously and of their malice aforethought kill and murder said deceased, attacked deceased and Lucille Woods so killed him, and that they, at no time prior to the time of the actual killing of the deceased, abandoned such purpose, then, and in that event, Lucille Woods would not be entitled to set up any act or conduct of the deceased either before or at the time of the killing by way of defense of such killing."
Considering first the continuance applied for, we find that the appellant was indicted and arrested on March 28, 1938. Being without means to employ an attorney to defend her, the court appointed two members of the local bar on April 4, 1938, for that purpose. She was thereupon arraigned, while one of her attorneys was present in court. The other attorney was advised of his appointment on the next morning, and they obtained a severance for the appellant and filed a motion for a special venire. The special venire was ordered to be drawn, and the case was passed until two o'clock in the afternoon of that day, as stated in the record by the trial judge, in order that the attorneys might confer with the appellant and others and make an announcement. During the afternoon, the special venire was drawn, without any request for further time being made by the attorneys for the purpose of enabling them to further confer with their client, and the case was set for trial for the morning of April 8th, and the venire was summoned to appear at that time. When the case came on for trial, the application was made for a continuance until a later day in the term, on account of the absence of Dr. H.F. Fridge, who had been formerly employed at the Natchez Charity Hospital, and who was alleged to have treated the appellant, within a few hours after the killing of the deceased, for a fresh wound caused by being stabbed by a sharp instrument, "probably an ice pick," and who was not known by the attorneys to have left the city and moved to Hattiesburg, Mississippi, until after the special venire was drawn. The application further averred that appellant was unable to prove by other defense witnesses the same facts that would be testified to by the said Dr. H.F. Fridge. On the hearing of the application for continuance, the State introduced Robert Burn, a police patrolman, who carried the appellant to the Natchez Charity Hospital at about 7:30 A.M. after the killing on the night before, and testified that she had received the wound at the place on her body where Dr. Fridge is alleged to have found the same; that she had blood on her dress on the inside, down in front, and that the wound was then bleeding; that he was unable to tell whether or not the wound had been inflicted by an ice pick; that she had been arrested about 1 o'clock on that morning and had no access to an ice pick or other weapon between the time she was locked up and the time she was carried to the hospital; that he went with her to the hospital three or four times in all; that she was treated each time by Dr. Fridge; and that the doctor found that the wound did not go into the lung. The witness Burn was not called by either side as a witness except at the hearing of this application for continuance, and he does not appear to have had any interest in the case except to state the truth as to what he had observed. His testimony was undisputed, and in our opinion it afforded the appellant the means of establishing the fact that she had the fresh wound which Dr. Fridge is alleged to have treated. The availability of this testimony for the trial on the merits, and the fact that no further time was requested by her attorneys for a conference with her at the time the venire was drawn, we think justified the trial court in overruling the application for a continuance. The record shows that the special venire was drawn and summoned upon the application of the appellant, and it is not an abuse of discretion to deny a continuance after the expense of summoning a special venire has been incurred and the veniremen have appeared in court, where there are no intervening circumstances or events transpiring between the drawing of the venire and the date set for trial.
The instruction complained of, which deprives the defendant of the plea of self-defense should never be given except where the proof on behalf of the State clearly shows that the defendant, armed with a deadly weapon for the purpose, becomes the aggressor in a difficulty in regard to which the plea is invoked, but we are of the opinion that the foregoing instruction contains these necessary elements and that the testimony offered by the State, which the jury adopted as true, justified the giving of the instruction in this particular case. The jury was warranted in believing, beyond a reasonable doubt, that the appellant drew a knife and attempted to engage in a difficulty with another woman at the place of business of one Louis Sabine on the night of the killing when she found her in the company of the deceased; and that after the deceased and this other woman left the scene to avoid further trouble, the appellant followed them for nearly a mile to the house where they were living together, and thereupon called the deceased out of the house into the alley and stabbed him to death; and the jury was also warranted in finding from the evidence that even though the appellant may have been stabbed with some instrument at the time of the killing, it occurred while she was advancing on the deceased with her knife to kill him.
We find no error in the record that would justify a reversal of the case.
Affirmed.
ON SUGGESTION OF ERROR.
It is urged on suggestion of error that the former opinion in this case is in conflict with the opinion of the court in the case of Vance v. State, Miss., 183 So. 280, in that in the Vance Case the court condemned the giving of an instruction which deprived Vance of the right of self-defense under the circumstances therein recited, and that the court upheld a similar instruction in the case at bar, quoted in the former opinion in this cause. The instructions are in fact of similar import and meaning. However, in the Vance Case there was no proof that he armed himself with the pistol for the purpose of provoking the difficulty with the deceased and using the weapon if necessary to overcome him, but according to the evidence, as pointed out by the court in the opinion, Vance neither knew at the time he armed himself with the weapon that he would encounter the deceased while so armed, nor did he intend to seek out the deceased for the purpose of provoking the difficulty with him. The instruction was held to be erroneous because of the absence of any evidence on which the jury could find that Vance had any such intention in arming himself; whereas, in the case at bar the proof disclosed that the appellant left the place of one Louis Sabine on the night of the killing armed with a knife, saying at the time that she was going to kill the deceased, and followed him nearly a mile between one or two o'clock in the morning, and cut him to death with such weapon in a difficulty wherein the proof on behalf of the State showed her to be the aggressor, and at a time when two or more witnesses say he was asking her not to come on up to him. If a person provokes a difficulty, armed in advance, intending, if necessary, to use his weapon to overcome his adversary, he thereby deprives himself of the right of self-defense. Helm v. State, 67 Miss. 562, 7 So. 487; Prine v. State, 73 Miss. 838, 19 So. 711. While it is true that it is a rare case in which this instruction is proper, it has been upheld in numerous cases when the facts necessary to sustain it are in evidence. Assuming that the appellant was accustomed to carry the knife which was used in slaying the deceased, if while armed with it she followed and apprehended the deceased after he had left the Sabine Store for the purpose of avoiding further trouble, and provoked a difficulty with him, being the aggressor, and intending all the while to use such weapon if necessary to overcome him, we see no reason why the same rule would not apply as would have been the case if she had procured the knife from elsewhere for such purpose. Otherwise, a person who continually carries a deadly weapon would never be subject to the rule which deprives others of the right of self-defense when they arm themselves and provoke a difficulty, and become the aggressor, intending to use the weapon to overcome their adversary.
It is next insisted that in the Vance Case the court held that an instruction was harmful which told the jury that unless it be reasonably necessary to shoot an adversary in order to save the defendant from great bodily harm or to save the life of the individual who fires the shot "at the very time the fatal shot was fired" and that in the case at bar the court in its original opinion upheld a similar instruction. Responding to the contention that the two decisions are in conflict in this respect, it should be stated that the objection to this instruction in the case at bar was not directed did not in the original briefs to the language above quoted, but the objection to the instruction was based on other grounds. Moran v. State, 137 Miss. 435, 102 So. 388. Moreover, the opinion in the Vance Case stated that "under all the evidence as to what occurred in the store during the difficulty, the phrase `at the very time the fatal shot was fired' circumscribed the right of self-defense within too narrow limits, and has been in principle heretofore disapproved by this court. See Fortenberry v. State, 55 Miss. 403; Ellerbe v. State, 79 Miss. 10, 30 So. 57; Bang v. State, 60 Miss. 571; Dyson v. State, 26 Miss. 362; Case v. State, Miss., 17 So. 379. It was as harmful in this case." The giving of this instruction was not held to be reversible error in the Vance Case but was merely held to have been harmful under the circumstances of that particular case. The Vance Case was reversed primarily because of the giving of the instruction which deprived him of the right of self-defense under the circumstances shown by the record in that case. Moreover, the cases last above cited in the Vance Case condemned similar instructions on the ground that there was omitted therefrom the element of apparent danger, and in effect told the jury to convict the defendant unless he was in actual danger at the very moment the fatal shot was fired. This element was not lacking in the instruction in the Vance Case, as it is not lacking in the present case, but the instruction in that case was held "harmful" in view of all of the evidence as to what occurred in the store during the difficulty in which Vance slew the deceased Harrington. We do not think that the giving of this instruction constituted reversible error in the present case in view of the difference existing between the facts and circumstances testified to in the two cases.
In view of the statement of counsel that the opinion in the Vance Case was not published until after their original brief was written, and because of the fact that counsel now representing the appellant on this appeal appear for her in the court below, and no motion for a new trial having been made in the court below, we have carefully re-examined the record both in relation to the point not heretofore argued as error in one of the instructions complained of, as well as those previously emphasized in the briefs, and we are unable to see that there is any conflict in the two decisions when viewed in the light of their different facts and circumstances. It frequently occurs that the giving of instructions in substantially the same language may be held to constitute reversible error in one case, and be upheld as justified by the facts in another case.
Nor do we feel that we would be justified in not adhering to the former opinion, wherein we held that there was no abuse of the trial court's discretion in denying the application for continuance. The record on the hearing of such application shows that the fact proposed to be proved by Dr. Fridge, if present, could have been established by the undisputed testimony of a police officer. The extent of the wound alleged to have been received by the appellant in the difficulty we think was immaterial, if the jury believed that the deceased was using, or attempting to use, an ice-pick or other sharp instrument, not in his necessary self-defense, at the time she killed him. As suggested by the district attorney at the hearing, the hospital records would have disclosed the fact that the appellant was treated for the wound in question on the next morning, in corroboration of the testimony of the police officer. If the suggested and available proof had been made on the trial, we do not think it reasonable to suppose that the jury would have taken the view that the wound was self-inflicted. Neither the absent witness nor the police officer could have testified that it was received in the difficulty wherein the appellant killed the deceased.
After a full review of the record and consideration of the questions argued, we do not find that any reversible error was committed.
Suggestion of error overruled.