Opinion
No. 32991.
December 13, 1937.
1. CRIMINAL LAW.
Where evidence warranted finding that sick witness was able to be brought into court, denying motion for continuance was not error.
2. HOMICIDE.
If a person arms himself for the purpose of provoking a difficulty and does so, intending from the outset to use the weapon if necessary to overcome resistance, he has no right to rely on self-defense, but, if he arms himself for purpose of killing and does kill, the fact that the person killed tried to defend himself does not give rise to justification.
3. HOMICIDE.
Instruction based on theory that, if defendant armed himself, went to scene of killing, and began the attack, he could not rely on self-defense, was not erroneous.
ON SUGGESTION OF ERROR. (Division B. Jan. 24, 1938.) [178 So. 469. No. 32991.]1. CRIMINAL LAW.
The jury may accept the testimony of some witnesses in part and reject other parts, and accept part of the evidence for the state and part of that for defendant, and draw reasonable inferences therefrom and from all the evidence in the case.
2. CRIMINAL LAW.
It is defendant's right not to testify, and the jury may not make unfavorable deductions from his failure to do so.
3. HOMICIDE.
Evidence that after an altercation with deceased, defendant went away, procured a gun and returned, warranted the jury in inferring that, in the absence of any explanation as to the procuring of the gun, defendant's purpose in doing so was to kill the deceased, and this evidence, with testimony that defendant began the difficulty and fired first, justified an instruction on the theory that defendant could not claim self-defense.
APPEAL from the circuit court of Calhoun county. HON. T.H. McELROY, Judge.
E.L. Lamar, of Calhoun City, and Creekmore, Creekmore Capers, of Jackson, for appellant.
In the case of Lofton v. State, 79 Miss. 723, it was held that an instruction declaring a defendant estopped to plead self-defense should never be given unless it embraces all the elements essential to the estoppel.
In the case of Williams v. State, 90 Miss. 319, 43 So. 467, the court held that the right of self-defense should not be narrowed by instructions for the state for which there is no predicate in the evidence.
Lee v. State, 138 Miss. 474, 103 So. 233.
Fore v. State, 75 Miss. 727, held that an instruction for the state, which assumes a material matter of fact prejudicial to the accused as true is erroneous; and that an instruction which purports to state hypothetically all the facts of the case but which omits portions thereof material to the accused is erroneous. This case also held that an instruction which denies the accused the right of self-defense without first requiring a finding that the accused was the aggressor in the difficulty is erroneous.
Herrin v. State, 87 Miss. 628; Pulpus v. State, 82 Miss. 548.
There is not one scintilla of evidence in this case to show, or imply, that the appellant, Woodward, armed himself with a deadly weapon with design to kill the deceased, and we urge upon the court the proposition that Instruction Number Four was fatally erroneous if it did not have a provision to the effect that the appellant had the right to self-defense even though he was the aggressor, if the deceased, during the encounter, became the aggressor.
Rogers v. State, 82 Miss. 479; Cooper v. State, 80 Miss. 175.
There is in our mind no doubt that the court will at once see the errors in the instruction. We wish to point out that: first, it does not require the jury to find that the defendant was the aggressor. Second, there is no evidence showing when or how the defendant armed himself or for what purpose, or that he went out seeking the deceased for the purpose of killing him. Third, the instruction assumes that the defendant armed himself for the purpose of killing deceased when, as a matter of fact, there is no evidence on this subject at all. Fourth, the instruction denies the right of self-defense to the defendant. Fifth, the instruction fails to have in it all the essential elements necessary to work an estoppel.
The court should have granted a continuance. It was grave, serious, harmful and prejudicial error for the lower court to overrule the motion for a continuance based on the fact that one of the defendant's witnesses, whose testimony, as shown by the record, would have been vital to appellant's defense, was unable to attend the trial.
Johnson v. State, 111 Miss. 828; Havens v. State, 75 Miss. 488; Brooks v. State, 67 So. 53; Vollm v. State, 96 Miss. 651.
E.L. Lamar, of Calhoun City, and Creekmore, Creekmore Capers, of Jackson, for appellant on Suggestion of Error.
We respectfully submit that unless the court can see that there is testimony to the effect that the defendant procured the deadly weapon for the purpose of seeking out the deceased to kill him or do him great bodily harm, the instruction is bad and fatally defective. At this point we wish to quote the Fourth Instruction given 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 armed himself and went out seeking the deceased for the purpose of killing him or doing him great bodily harm, the deceased had a perfect right to defend himself and to use such force as was reasonably necessary to protect his life from such attack, and the defendant had no right to shoot the deceased and to kill him to overcome the efforts of the deceased to defend and protect himself against such attack, and in doing so, his said act in so shooting and killing the deceased was not lawful self-defense; and if you believe from the evidence beyond a reasonable doubt that the defendant did so shoot and kill the deceased to overcome the reasonable efforts of the deceased to defend and protect himself against the defendant's attempt to kill him, or otherwise do him great bodily harm, then the defendant is guilty of murder in such killing, and the jury should so find even though the jury may believe from the evidence that the deceased then and there undertook to use his pistol to so defend and protect himself against such dangerous attack."
We respectfully maintain that when there is no evidence at all for the court to consider on the question of the defendant arming himself and seeking out the deceased for the purpose of killing him, the instruction is bad and there is no evidence whatsoever upon which to base the instruction.
Also the instruction is bad because it does not meet the test given in Lofton v. State, 79 Miss. 723, holding that such an instruction should never be given unless it embraces all the elements essential to the estoppel. In the Lofton case, Chief Justice Whitfield brought out that there was no evidence to show that the defendant procured the gun with the intention of using it in a difficulty which he intended to provoke and reversed the case for the erroneous instruction.
Williams v. State, 90 Miss. 319; Lee v. State, 138 Miss. 474.
Then, too, the instruction is fatally defective in not requiring the jury to believe that the defendant was the aggressor, or the originator of the difficulty.
The instruction simply tells the jury that if they believe from the evidence that the defendant armed himself and went out seeking the deceased for the purpose of killing him, the deceased had a perfect right to defend himself and to use such force as was reasonably necessary to protect his life from such attack. What attack is meant? There is nothing requiring the jury to believe that the defendant made an attack upon the deceased but simply assumes for the jury that the defendant did make an attack.
Fore case, 75 Miss. 727; Prine v. State, 73 Miss. 838; Herrin v. State, 87 Miss. 628; Pulpus v. State, 82 Miss. 548; Rogers v. State, 82 Miss. 479; Cooper v. State, 80 Miss. 175; Coleman v. State, 176 So. 714.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
The instruction complained of provides that the jury must believe beyond a reasonable doubt from the evidence that the defendant armed himself for the purpose of killing the deceased and that he went seeking the deceased for that purpose. The instruction does not require the jury to believe that the defendant provoked the fatal difficulty, nor that he was the aggressor in the difficulty, nor was there any reference to an abandonment of the purpose of arming himself.
On the State's theory of the case, the evidence is such that the jury would be well warranted in believing that, after the first brush between appellant and deceased the appellant went off, armed himself, returned and deliberately shot and killed the deceased. If the State's evidence was all the evidence, it would be hard to believe that the giving of this instruction, though erroneous, would necessitate a reversal of this conviction.
Assuming that the evidence which would be given by the absent witness was material, and not such as would be impeaching or cumulative, the State submits that the evidence does not show when, if ever, the witness could be brought to the court. The burden is on the defendant to show that the presence of the absent witness could be obtained with a reasonable degree of probability.
Hodgkin v. State, 160 So. 562; Samuels v. State, 153 Miss. 381, 120 So. 920.
Winston Woodward, appellant here, was tried in the circuit court of Calhoun county on an indictment charging him with the murder of Walter Roberts; convicted of manslaughter; and sentenced to serve ten years in the State Penitentiary, from which this appeal is prosecuted. Walter Roberts was shot in his leg, which shot severed the main artery.
There is a great deal of conflict in the testimony. It appears from the evidence that on Sunday afternoon, April 19, 1936, Lillian Griffin, one of the witnesses, was riding around with appellant and others in an automobile belonging to John Roberts, father of the deceased; that later in the evening she went with Walter Roberts and others to church, leaving the church with them, and Roberts was driving; she was on the front seat with him, and Annetta Griffin and Leonard Jamieson were on the back seat; that they stopped and parked in front of the house of Willie Woodward, and while there Taylor Woodward and Winston Woodward, appellant, drove up behind them and stopped, got out, and started into the house; that Walter Roberts turned his lights on them; that when this happened, appellant asked him why he did so; nobody answered, and Walter Roberts turned the lights out, and in a few minutes they drove off and in about five minutes came back and parked in the same place; that then appellant came up and again stopped right behind them; that appellant came up in front of their car with a shotgun in a shooting position; that she thought it was time to leave, and got out of the car and ran into the house, after which she heard two shots; that the louder shot was the first one.
Annetta Griffin testified to these same facts, stating that Lillian Griffin started out of the car and appellant told her to get back in, but instead she jumped out and started towards Willie Woodward's; that she then got out of the car and proceeded to leave too, and, when she got in the house, she heard two shots; that the first shot was the louder of the two.
Leonard Jamieson testified that he was with Annetta Griffin on the back seat of the car when it was parked in front of Willie Woodward's house, and Walter Roberts and Lillian Griffin were on the front seat; that a car parked behind them and Winston Woodward, appellant, Oren and Taylor Woodward got out of it and started in the house; that Walter Roberts turned the lights on them, but, upon being asked not to, he turned the lights off; that they then drove off and returned in 30 minutes to the same parking place, and a car parked behind them, and appellant came up with a shotgun in his hands in a shooting position, and fired it at Walter Roberts, who, at that moment, had his hand over the back seat and got his pistol out of the car pocket, but just as he did so he was shot by appellant, and Roberts shot his pistol through the board of the car into the ground; that appellant, Oren and Taylor Woodward then left, and he carried Walter Roberts to the physician's house.
E.L. Moore testified that Leonard Jamieson lived on his place, and that, after the killing, Jamieson took him to the place where Walter Roberts' car had been parked, and he found a bullet hole, on making an examination of Roberts' car, in the floor board, and dug up a bullet out of the ground, which bullet was offered in evidence.
E.S. Cook, marshal of Calhoun City, testified that he talked to Jamieson, who told him he did not know who killed Walter Roberts.
Tolley Williams said that three or four days after the homicide Lillian Griffin told him that Taylor Woodward shot Walter Roberts, and Evaline Deloach said that she told her the same thing on the day after the killing.
Taylor Woodward testified that he left the church with Winston Woodward; that they parked in front of Walter Roberts' car and the lights were turned on them; that appellant said, "Don't turn those lights on," and Roberts said, "You country son of bitch, if you dont like it I will shoot hell out of you;" that Walter Roberts had a shiny pistol in a shooting position; that they had gone to get Oren, and that he (the witness) came out and drove off to a CCC camp, and on the way overtook Oren, and they returned to James Holland's house for appellant, and parked behind the Roberts car; that he (witness) started after appellant, Winston Woodward, walked up to the Roberts car and said, "Good evening, how are you all," and that nothing was said in reply; that in about two minutes appellant walked up and asked who was in that car, and some one told him Walter Roberts; that appellant and the witness started off and Walter Roberts said, "Hold on there, I want to see you," and about that time a pistol fired and the blaze from the pistol went right out toward Winston, who was neither saying or doing anything to Walter Roberts.
James Holland testified he heard two shots outside his house and that the first one sounded like a pistol because it went "bow" and the last one was a shotgun because it went "boom." He further testified that, when Roberts found out earlier in the evening that Annetta Griffin had gone off with the Woodward boys, he said, "If the Woodward boys ever crossed his trail he was going to kill them," and that Roberts then had a shiny pearl-handled pistol.
Willie Sam Chandler testified that on the night before the killing Walter Roberts came to her home with Lillian Griffin and asked her where she had been all the evening, and, when she told him she had been with the Woodward boys, Roberts said, "Some one is going to get killed tonight." In rebuttal, Lillian Griffin testified that Roberts did not exhibit a pistol at that house, nor did he make any such statement as testified to by Willie Sam Chandler.
James Holland signed a statement, and in arguing the case the district attorney started to read this statement, to which objection was made and sustained.
At the September 1936 term the first term of the court after the killing, application was made for a continuance on the ground that Oren Woodward, who seems not to be related to appellant, was absent, and process was issued to several counties to secure this witness, but he was not found. The case was continued, and when tried the witness, Oren Woodward, was sick, and there was testimony to the effect that he was unable to attend court, and it was thought he was afflicted with tuberculosis. The court appointed the county health officer to make an examination of Oren Woodward and report to the court, which report showed that Oren Woodward was able to attend court, having been suffering from pleurisy, which had cleared up considerably, and it would not endanger his health or life to attend court. The court thereupon offered to furnish a conveyance to bring Oren to court, but this was not accepted, and motion was made for another continuance, which motion was overruled. It was stated that an affidavit of the sick witness was attached to the motion, and that said Oren Woodward, the sick witness, signed this affidavit and knew nothing further than what he stated, and if in court he would testify in accordance therewith, that at the time of the shooting between Walter Roberts and Winston Woodward the affiant was seated in his car immediately behind the Roberts car and that the first shot came out of the Roberts car; that no one got out of Roberts car except one girl; that affiant remained in his car for some ten or fifteen minutes after the shooting and the alleged eyewitness, Leonard Jamieson, did not get out of the car but that he walked up to the Roberts car from the south some ten minutes after the shooting was over, and that appellant fired after he was fired upon by some one in the Roberts car, and had not done or said anything until he was fired upon.
The court had sufficient evidence to find as it did that Oren Woodward was able to be brought into court, consequently, there was no error in overruling the motion for a continuance. There was evidence also that between the time the car lights were flashed upon appellant and the time of the shooting the appellant went to another party, procured a shotgun, and then returned to the scene of the shooting.
Complaint is made as to the fourth instruction, which reads as follows: "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 armed himself and went out seeking the deceased for the purpose of killing him, or doing him great bodily harm, the deceased had a perfect right to defend himself, and to use such force as was reasonably necessary to protect his life and person from such attack, and the defendant had no right to shoot the deceased and kill him to overcome the efforts of the deceased to defend and protect himself against such attack, and in so doing, his said act in shooting and killing the deceased was not lawful self-defense; and if you believe, from the evidence, beyond a reasonable doubt that the defendant did so shoot and kill the deceased to overcome the reasonable efforts of the deceased to defend and protect himself against the defendant's attempt to kill him, or otherwise do him great bodily harm, then the defendant is guilty of murder in such killing, and the jury should so find, even though the jury may further believe, from the evidence, that the deceased then and there undertook to use his pistol to so defend and protect himself against such dangerous attack."
In our opinion, this instruction does not fall within the decisions relied upon. It will be seen that this instruction does not undertake to announce the principles covered by those decisions. It proceeds upon the theory that, if the appellant armed himself, went to the scene of the killing, and began the attack, he could not rely upon self-defense. There is a clear distinction between the principles announced in the case at bar and the principles announced in those decisions, for, if a person arms himself for the purpose of provoking a difficulty, and does so intending from the outset to use the weapon if necessary to overcome resistance, then he would have no right to rely upon self-defense. But, if he arms himself for the purpose of killing and does kill, the fact that the person killed tried to defend himself does not give rise to justification.
We do not think the giving of this instruction was erroneous.
We have examined the other assignments of error, and do not think they merit discussion.
Therefore, the judgment of the court below will be affirmed.
The appellant was convicted of manslaughter, and the judgment was heretofore affirmed, and reported under the style of Woodward v. State, 177 So. 531. On the suggestion of error it is insisted that there is no evidence to show that the appellant procured a shotgun for the purpose of assaulting or killing the deceased, or when, under what circumstances, or for what purpose, he procured the gun with which the deceased was killed; and that there is no evidence warranting the giving of the instruction for the State, set out in the opinion in 177 So. 531, at page 533.
It is true that no witness directly testified as to when and where the gun was procured, or for what specific purpose. There is an old maxim to the effect that "Actions speak louder than words," which is applicable here. The jury had a right to draw inferences from all the evidence in the case, and to accept the testimony of some witnesses in part, rejecting other parts; and to accept part of the evidence on behalf of the State, and part of that on behalf of the defendant; and, after finding the facts, to draw reasonable inferences therefrom.
It appears clearly from the testimony of State witnesses that on the evening of the killing, and prior thereto, the defendant and others in the car with him, drove up in front of the house where the deceased and three other persons had already arrived and were sitting in the parked car; that the defendant and his brother started into the house, whereupon the deceased turned the light of his car upon them. The defendant, appellant here, asked why he had flashed that light on; the State witnesses testified that nobody answered appellant, but that deceased turned the light off; however, the brother of appellant, testifying for him, gave a different version of what happened at that time, some time prior to the killing. The brother of appellant stated:
"We parked there and started down to James and he turned the lights on, and Winston said don't turn those lights on.
"Q. Did anyone in the car say anything? A. Walter said if he did not like it he would turn them on again and Winston said don't turn them on and Walter Roberts got out and said: You country son-of-bitch if you don't like it I will shoot Hell out of you, talking to Winston.
"Q. What did this Walter Roberts have in his hands at that time? A. A Shiny pistol pointed in his hand like this, (indicating the pistol to be in a shooting position).
"Q. What did you all do then? A. Went on down to James' house.
"Q. How long did you stay there? A. Not long.
"Q. What did you go down there for? A. To meet Oren."
The three witnesses for the State testified as to these circumstances, denied that the deceased drew any pistol, or used any such language as above testified to by the brother. The testimony for the State showed that appellant and those with him drove off; the deceased and his companions also driving away, later returning and parking near the place where they had formerly parked; that thereafter the appellant and his brother, and others, returned in the car approximately to the place occupied by them on the first occasion, the appellant got out of the car with a shotgun, and approached the car in which the deceased sat, in a drawing position, or shooting position, as it was then expressed. The two girls in the car got out and ran into the house before which the cars were parked, and about the time they got into the house a shotgun was fired, and in a short time, a pistol.
The witness Jamieson, who was in the car with deceased, testified that the deceased did not draw a pistol, did not get out of the car, and did not have a pistol drawn when the appellant approached the car with a shotgun in shooting position; and, also, that the appellant fired the first shot, while the deceased was attempting to get his pistol from the pocket of the car, reaching over the back of the seat; that the pistol of deceased was fired, not toward the appellant, but down in the back part of the car through the floor.
Witnesses for appellant testified that the deceased first drew his pistol on the appellant on the second meeting. The brother of appellant denied that he accompanied his brother on the return to the scene where the killing occurred; but said that he and others returned in a car, and that soon his brother, the appellant, came up with a shotgun; he did not know where it had been procured. The appellant and his brother came to town that afternoon, and no witness testified that the appellant had a gun on the occasion of the first trouble in regard to turning on the lights.
It is clear, therefore, from the evidence that between the occasion of the first altercation and the killing the appellant had gone away, procured a gun, and returned to the scene of the killing. This much is not in dispute. But the State's witness testified that when the appellant returned with a gun he approached the car with the weapon in shooting position, inquired who was in the car, and thereupon shot the deceased when the latter was doing nothing to appellant. It is true that witnesses for appellant, the appellant himself not testifying, testified that the deceased shot first. One of the witnesses for the appellant stated that the shotgun was fired after the pistol; that he was in the house when the girls ran in, and that he heard the pistol and then the shotgun; but on cross-examination this witness admitted that he had signed a statement subsequent to the killing, to the effect that the shotgun fired first and the pistol second. It is true, this statement was not introduced in evidence in full, but it was exhibited to this witness, and he admitted making the statement, but claimed that it was untrue.
The appellant was arrested the following morning after the killing, and denied that he knew anything about it, according to evidence introduced by the State. While it is the right of the defendant not to testify, and the jury is not authorized to make unfavorable deductions from his failure to do so, yet when such testimony as was given by the witnesses in this case is introduced, and the procuring of the gun is unexplained, it is not shown that it was procured for an innocent purpose, the jury have a right to draw inferences from the facts so testified to, and under the circumstances here were warranted in coming to the conclusion that the appellant procured the gun for the purpose of killing the deceased, that he began the difficulty, and fired the first shot. The State had the right, under the given facts, to submit to the jury the question presented in the instruction.
Overruled.
The suggestion of error is overruled.