Cannon v. State , 57 Miss. 147 ( 1879 )

Campbell,' J.,

delivered the opinion of the court.

The evidence of the finding and presentment in court of the indictment by the grand jury is sufficient, and the motion in arrest of judgment was properly overruled.

An effort was made to show that Caroline Austin had testified, before the justice of the peace, to certain matters as to which she testified differently on the trial in the Circuit Court, and it. was proposed to show that the counsel for the accused had commented, in the presence of Caroline Austin before the justice of the peace, on the impossibility of the truth of her testimony in certain particulars, wherein it was contended that she had, since hearing such comments, varied her testimony. The obvious purpose of the evidence offered was to suggest a motive in the witness for the alleged variance ; i.e., to escape, on the argument of the case in the Circuit Court, the criticism of her testimony which had been made on the trial before the justice of the peace. Great latitude is allowable on cross-examination to show bias and wrong motives in the witness, with a view to lessen the credibility of a witness thus impelled, and answers of a witness to questions as to bias and motive may be contradicted by evidence pertinent to show the bias of the witness who denies it when interrogated. But we know no legal mode of discrediting a witness except by cross-examination, conviction of an infamous offence, impeaching the general character for truth, and impeaching the credibility by evidence of contradictory statements at different times on a material point in the case, including, as above stated, the contradiction of the answers of the witness when interrogated as to bias or motive.

When it is proposed to discredit a witness by proving that on a former occasion he made a statement inconsistent with his statement on some point material to the issue, the fact of such contradictory statement, and not the reason for it, i's the true subject of inquiry. If a witness, in attempting to explain how he came to. make variant statements at different times, were to deny the occurrence of something bearing directly on the admitted variance, it may be that it would be allowable to show the occurrence thus denied ; but that is not the case here presented. The witness did not admit any contradictory statement in her testimony on the different occasions, and, therefore, did not attempt any explanation of what she did not admit. She was not asked as to having heard the comments of counsel on her testimony in the examination of the case before the justice of the peace. The accused was allowed to show the alleged contradictory statements of the witness. The extent of the variance, and its influence as affecting the truth of her testimony, were to be determined by the jury from the fact of the discrepancy, if any, in her statements on the two occasions, without the independent testimony offered to lay the basis of a conjecture as to the motive in making the contradictory statements. Such testimony is too vague and uncertain to be relevant to the issue. It would lead to an undue multiplication of issues in a case. If the testimony offered and rejected had been admitted, it might have led to the inquiry as to what was said by counsel in their comments, and whether this was heard by the witness and how she understood it, and what effect it was calculated to have on her, all with a view to calculate the probabilities that she had been thus induced to change her testimony. The inquiry was too remote, and no error was committed in excluding the testimony offered.

The refusal to permit the witness, Smith, who was the justice of the peace before whom the accused was tried, to answer that Dr. McCallum was not examined before him as to the possibility of a certain wound having been received by the deceased while he held his gun back of his neck with both hands, was proper for the reason above given, and for the further reason that it does not appear that Caroline Austin had testified to the fact that the deceased was holding his gun in that position when he was shot, and the proposed testimony was not contradictory of her testimony, to contradict which was the object of the examination on this point.

The tenth instruction for the. State should not have been given. It is true that, when a premeditated design to kill or do other great bodily harm is ascertained to have existed, and there is a consequent unlawful killing, apparently in pursuance of such design, any provocation which immediately precedes the act of killing is to be thrown out of the case and to go for nothing, unless it can be shown from the circumstances of tbe killing that tbe purpose to kill or do great bodily harm .was abandoned before the act was done. The purposes of men can be determined only by their declarations and acts, and when one evinces a purpose to harm another, and does it when opportunity offers, it is rational to ascribe his act to his previously formed purpose, — to regard it as the consummation of his design, and to deal with him as having done what he had planned, not permitting him to shield himself by mere provocation which supervened. The safety of society requires that he who is bent on mischief and revenge shall not escape the just consequences of his unlawful acts, merely because of some provocation by his victim while he is in pursuit of his unlawful purpose. One may have ill-will towards another, and yet have no desire or purpose to kill him, or to do him any bodily harm. If a person who kills another acts in truth from malice, and makes the appearance of necessity for his own defence the pretext to execute his purpose of revenge, he is guilty of murder; for malice is not to be covered by a pretence. If one designing to harm another seeks and brings about an altercation in order to accomplish his purpose, he cannot claim that the killing of his adversary shall be reduced to manslaughter because of a provocation, which, under other circumstances, would so reduce it. One cannot create a necessity for an unlawful purpose, and justify his action by the necessity thus created. But if A bears malice towards B, and they meet casually, and B assaults A, and he shoots B, the rule of referring the motive to the previous malice will not apply. A mere grudge, or malice in its general sense, is not sufficient to bring a case within the principle that, where one having express malice towards another kills that other, the killing is referable to the previous malice and not to a provocation at the time of killing. To do this, there must be a particular and definite intent to kill, so that the provocation is a mere collateral circumstance, the intent to kill existing before and independently of it. State v. Johnson, 2 Jones (N. C.), 247. It is for the jury to say whether the act of killing proceeded from a deliberate purpose previously formed to kill, then and there carried into effect in pursuance of the previous concerted design, or whether 'the act was done because of the present circumstances, without regard to the previous design. If a killing proceeds from a wicked intent previously entertained, and upon a. pretext as a cover for such intent then acted on, the killing is referable to the previous intent and is murder.

The tenth instruction was drawn from the language of the opinion of the court in Riggs v. State, 30 Miss. 685. In that case, the effort was to reduce the grade of the killing from murder to manslaughter. There was evidence of an altercation terminating in a fight, and the death of one of the parties by the hand of the accused, who was shown to have had a previous grudge against the party killed, and to have threatened to kill him, and to have concealed on his person a weapon upon the approach of his adversary. It was justly held that a mere provocation at the time of the killing did not free the party from the guilt of murder. The use of the word “ provocation ” in the ■ tenth instruction was calculated to mislead. The killing in this case was either an assassination upon lying-in-wait, or it was in self-defence. There is no hint in the evidence of any provocation, in the legal or popular sense of that term. The instruction must have been understood as conveying the idea that, if the accused had malice towards Martin, he was denied the right to kill in self-defence, which is not true.

Whatever be a man’s feelings towards another, he is not required to submit to be killed by him. He is not deprived of his right of self-defence. His right, in that respect, is the same as that of any other person. He may not seek a pretext to gratify his malice. He may not engage in a contest in order to gratify it. But when attacked he may defend himself, even to taking the life of his assailant if that is necessary to his defence, provided he did not invite the attack in order to furnish an occasion to slay his adversary. As was said in Riggs v. State, ubi supra, “ a previous threat or grudge is evidence of express malice, and it goes to fix the character of the killing afterwards perpetrated, unless circumstances be shown to alter or mitigate it, and to relieve it from the imputation of •malice.” The office of evidence of a previous “ grudge ” is to fix the character of the killing as malicious, and therefore murder, if the circumstances of the killing do not relieve it of this imputation. The value of the evidence is to be determined by the jury.

In this cas.e, there was no altercation between the parties, — no blow, or “ provocation,” at the time of the act of killing, but either a lying-in-wait and shooting down of Martin by the accused, who had posted himself under cover to do this, as contended by the State, or a shooting by the accused to keep from being shot, as he insists. If the accused stationed himself where he was, armed with a gun, for the purpose of killing Martin when he should come within range of the gun, and resolved to do so at all events, or on the pretext of a demonstration against him by Martin induced by his acts, and he killed Martin under these circumstances, he cannot shelter himself under the necessity which his own conduct created to kill Martin in order to keep from being killed. But the fact that the accused entertained ill-will towards Martin, or had made threats against him, did not deprive him of his right to defend himself if he was not determined to kill Martin, and did nothing to provoke a hostile attack by Martin, but was attacked by him and he shot him only to protect himself from great personal injury then about to be done him, as indicated by the present hostile demonstration by Martin, and not from a previously formed purpose to do it.

In view of the extremely liberal instructions given at the request of the accused, and the difficulty of discovering how any injury could have been done him by the tenth instruction for the State, we might not reverse the judgment but for the action of the court in refusing a new trial, because of the fact that McAllister, one of the jurors who was accepted and tried the case, had prejudged it unfavorably to the accused, but on his voir dire had stated that he had not formed or expressed an opinion as to the guilt or innocence of the accused, who at that time, was ignorant that he had prejudged the case unfavorably to him. It is well settled that this is good reason for a new trial. We are aware of the vulnerability of verdicts on this ground, and of the danger to which it exposes them, especially at this time; and, if the court below had disbelieved the evidence of the charge that the juror had prejudged the cause, we should concur and affirm the judgment on this point; but, instead of that, tbe bill of exceptions shows that tbe circuit judge expressly stated that be assumed as true that the juror had expressed an opinion of the case unfavorable to the accused, and on this assumption the new trial was refused. This was error, for which the judgment must be reversed.

Judgment reversed, and cause remanded.-