Evans v. State , 44 Miss. 762 ( 1870 )

SlMRALL, J.:

ist. Did the court err in excluding from the jury the testimony of the witness, Buck, which was to the effect, that deceased came to his store sometime before the killing, either drunk or much excited, and said he had had a difficulty with John Evans, the' accused, and had run him off. Witness replied, John Evans is a dangerous negro to run against. Deceased said if John Evans fooled with him he would kill him,, and applied to buy buckshot. From three to six weeks before the homicide, these threats were communicated to John. In the interview, Henry said the “ fuss” had been made up. If this testimony could elucidate, or tend so to Jo, any point in the case pertinent to the issue, it ought not to have been excluded. Deceased did not declare a purpose to make so much as an assault upon the prisoner: “If John fooled with him, he would kill him,” putting the killing on the condition of the renewal or intimation of further trouble by John. But this may have been mere gasconade. Be that as it may, there is no principle of criminal, law better settled — none more necessary to the peace of society, and the safety of human life — than that threats,-however deliberately made, do not justify an assault and battery, much less the taking the life of the party making them. That is excused when done in the necessary defense of one’s own life, or to escape great bodily harm.

To shoot down another on sight, and who, at the time, is making no hostile demonstration dangerous to life and limb, and especially if not prepared and armed so to do, is, in law, murder. It is murder, because the law tolerates no justification, and accepts no excuse for the destruction of human life, on the plea of self-defense, except that the death of the adversary was necessary, or apparently so, to save his own life, or his person from great bodily injury, and there shall be imminent danger of such design being accomplished. The danger to life, or of great personal injury, must be imminent, present at the time of the killing, real or apparent, and so urgent that there is no reasonable mode of escape except to take life. When we use the term “apparent” — apparent “ danger” — we mean such- overt, actual demonstration, by conduct and acts of a design to take life, or do some great personal injury, as would make the killing apparently necessary to self-preservation. As if A, who had threatened the life of B, presented at him a gun, in a shooting posture, and within range, A might well anticipate the fire, and if he should kill B, he would be justified, although it turned out afterwards that the gun was not loaded, and it was only intended to frighten him. Here was an act done which was “ apparently ” dangerous to life, in execution of the threat. This serves to illustrate what is meant by “ apparent ” danger. The principle upon this subject, is carefully stated by the chief justice in Wesley v. State, 37 Miss., 349. Now, if the excluded testimony had remained for the consideration of the jury, it would have had no influence on the verdict, unless there was testimony that the deceased, at the time of the killing, sought a deadly conflict with.the accused, or was making some demonstration towards the. accomplishment of his threat. There were, however, no developments made which would make this testimony pertinent, or entitled to a feather’s-weight. The evidence is conclusive, that the accused sent a message to the field for the deceased to come to the quarter', and when he got there he shot him down with his gun, when he was unarmed, without weapon in his hand or on his person, and when at the time there was no danger, real or apparent, to his life or person.

2d. Was there error in the instruction granted on .the prayer of the district-attorney, and in the modifications of those requested by the accused. Whilst the facts belong to the jury, and it is their province to weigh the credibility and weight of testimony, and draw their own conclusions as to the truths established by it, the court is esteemed to know the law, and it is the duty of the court to inform the jury of the law of the cause, when invited so to do, by the parties or either of them. Nor is the judge confined to granting, or refusing instructions in the language in which they are propounded to him. Upon him rests the responsibility of a correct statement of the law. He should not permit the jury to be confounded, or confused by the lan. guage in which they are concluded. But as presented to him by counsel, if they do not, on all the points embraced in them, fairly and concisely declare the law, he should so modify them as to communicate to the jury his conceptions of it; nor is he obliged by statute, to grant^anj instruction embracing a correct principle, if that principle can have no application to the fact in evidence. Boles v. State; Green v. State, 28 Miss., 688.

It has been several times declared from this bench, that all the charges are to he construed together, as of pari onateria ; one as modifying another, so as to see, whether as an entirity, they correctly lay down the law, and if so, although a single instruction may be too broad in its terms, a reversal ought not to take place. Childress v. Ford, 10 S. & M., 25; Mask v. State, 36 Miss., 91.

The rule as deduced by Wharton from American cases, “if the error be immaterial and irrelevant, and justice has been done, the court will not set aside the verdict, nor enter into a discussion of the questions of law.” Am. Crim. Law., § 3080. It finds full support in the adjudications of this court. McLanahan v. Barrow, 27 Miss., 664; State v. Cotton, 31 Miss., 504; Wilkinson v. Griswold, 12 S. & M., 669; Mask v. State (supra).

The three first prayers asked by the accused, are directed to the question of a homicide, in the presence of imminent danger to the life, or of great personal injury to the accused. The second of these refers the urgency of the danger, to the danger, to the judgment of the defendant, and altogether, he may have been mistaken in his relief; yet if he acted, under such belief of danger, he was justifiable. The third •asserts that the necessity to take life, need not be actual, if the circumstances surrounding the parties, were such as to impress the mind with a reasonable belief that the necessity exists. The circuit judge, as we have said, may put the charges as prayed, into such words, as in his opinion, will more clearly and correctly inform the j ury of the law arising on the evidence, although the instructions as asked, contain sound rules of law. The first of these instructions as written by counsel presents the law of j ustifiable killing in the presence of danger to the life or of great bodily injury.

Tire other two are susceptible of the interpretation, that the opinion or belief -.of the prisoner, as to the existence of the danger and its urgency, if fairly entertained, is a justification. . The substitution made by the court, whilst correctly stating the ingredients of murder, lays down the rule as to homicide in the emergency of danger to the life or person of the slayer in very favorable terms to the prisoner; more favorable really than the testimony or law would warrant.The testimony in one aspect of it, and as contemplated in this instruction, tended to show that the deceased had accepted the invitation to the shooting match, and was probably going to his house to provide himself with a gun. If this were so, then the court tells the jury that the prisoner may have killed the deceased in anticipation of his return from the house with a gun. If there was a purpose in the accused to kill, and it was necessary to defeat that purpose ' by killing him before he entered his house, surely the pris-. oner could not complain of this charge, for it placed him on very broad grounds of self-defense. We do not think if one man invites another to mortal combat, that he who gives the invitation, being already armed, can justifiably shoot the other before he has armed himself, and whilst going to a place where his weapon may be, although the deceased had formed the purpose to use his weapon on liis return. If that were so, it would only be necessary for one man to arm himself and advise his enemy to prepare to meet him, and then slay him whilst on his way to procure arms. His plea would be that the deceased had formed the design to kill, and was in the act of making preparation to put it in execution. The law gives countenance to no such idea. There is far less pretext for excuse or justification in such circumstances; then when two, on mutual agreement, go out and fight with deadly weapons, in this case, it is murder if either slay the other, for the plain reason that there is a premeditated design in either to kill the other; a fortiori, would it be murder in him who sent the challenge, if he should, with a fire-arm, slay his adversary before the combat begun, and before deceased was armed to enter upon it? Doubtless the matter in the second and third prayers for instruction by the accused, which induced the court to withhold them, was because it predicated in terms too positive and strong that the accused might act upon his own belief and opinion as to the emergency of impending danger. The law on this subject is stated with singular precision and felicity, in Wesley v. State, 37 Miss., 349, in these words: “A party may have a lively apprehension that his life is in danger, and believe that the ground of his apprehension is just and reasonable; but if he act upon them, and take the life of a human being, he does so at his peril. He is not the final judge, whatever his apprehension or belief may have been' of the reasonableness of the grounds upon which he acted. ” In every case where the homicide is attempted to be justified on this ground, it must appear from the testimony in the cause, that the danger was urgent, present and imminent, and that no reasonable mode of warding it off or escaping from it existed, except to take life. The mere apprehension or belief that the deceased is about to arm himself, and re- ' turn to enter into a combat,.does not show a present and imminent danger. If he goes and arms himself to engage in a combat with deadly weapons, on an invitation accepted, or upon mutual agreement, and engages in it, it will be murder in him who provoked the fight or in him who accepted, if either be slain. If individuals will conform to the law, and avail of preventive justice in proper cases, as where an assault is threatened or deadly menaces are uttered, claim the protection of the law, and put the wrong-doer under’ pledges and bonds to be of good behavior and keep the peace; or if the ministerial officers, charged especially with a preservation of order, as is their duty in all such cases occurring within their view, take the offender before the proper functionary, that he may be put under legal constraint to deport himself peaceably, there would not be so many occasions of pressing on juries and courts this character of defense. Individuals are prompt enough to appeal to preventive justice to restrain threatened injuries to their property. The machinery of the Igw has made corresponding provisions to guard against menaced wrongs and injuries to the person. If, instead of resorting to these, persons against whom threats or menaces are made, take the life of their enemy on the apprehension that they may be executed, and when no effort, to accomplish them is being made, they cannot be permitted to rely upon the apprehension of danger arising from the threats as meeting the requirement of the statute, as laid down in one of the subdivisions of article 168, Code, p. 601. We are of the opinion, that taking all the instructions together, no error has been committed to the prejudice of the defendant; but, on the contrary, he had the benefit in the instruction substituted by the court, of a broader exposition of self-defense in case of a homicide committed on the 'apprehension of a danger to his own life or person, than is warranted by the law. The true rule is correctly stated in the first and second charges given on behalf of the state.

The judgment is affirmed.

A petition for re-argument was filed; but a re-argument was refused.