Wood v. State , 81 Miss. 408 ( 1902 )

Whitfield, C. J.,

delivered the opinion of the court.

It was manifest error on this record to give the fourth and ninth instructions for the state. The fourth instruction is in the following words : “ The court instructs the jury that the killing of a human being without authority of law, when done in the commission of an act eminently dangerous to others, and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder.” This is erroneous and misleading on the facts in this case, because it is manifest from the testimony for the state as well as for the defense that Wood did not fire recklessly and wantonly with the view of killing anybody in utter disregard of human life, but he did fire with the specific purpose of killing some specific person, to-wit, some one of the group headed by. Lambert, with which group he had been in conflict, and which, according to the evidence for the defense, was still pursuing him — Lambert certainly. The evidence for the state, which shows that he shot with a specific purpose to kill some one of that group, is contained in the language testified to by the state’s witness, to-wit: “I will stop some of the damned * * It was not proper in this case, where the evidence showed shooting with specific intent to' kill some one of a group of assailants, to give this instruction, correct in the abstract, but applicable only where the evidence shows a shooting with a reckless disregard of life by one of wanton and depraved mind ; not with specific purpose to kill some assailant, but with utter recklessness as to who might be killed. The vice of this instruction in such a case is set in very clear light in the very accurate opinion of our Brother Terral in Strickland v. State (Miss.), 32 South. 921, s.c., ante, 134.

The ninth instruction for the state is as follows : ‘ ‘The court instructs the jury that, even though they may believe from the evidence that Netherland was going under the tent at the time he was killed, yet the fact would not justify or excuse the killing of Netherland, unless, of course, the jury believed from the evidence that a reasonable man, situated as Wood was, under the circumstances, would have reasonably believed that from such fact of Netherland’s coming into the tent his life was in danger, or he was in danger of great bodily harm at the hands of Netherland; and that to slay Netherland was necessary to protect his own life or his person from injury at the hands of Netherland.” The vice in this instruction is this: that it narrows the defendant’s right entirely too much, in testing his guilt in the killing of Netherland, by what occurred between him and Netherland only, without having any reference to the other theory presented by the evidence for the defense that he shot Netherland supposing him to be one of the attacking group. Of course, on the state’s testimony, he had no right to shoot Netherland at all. On the state’s evidence — if that was the only evidence in the case — he would be plainly guilty of murder, for on that evidence. he shot at Netherland deliberately with his back turned to him, whilst Netherland was doing nothing in the world but standing some distance from the tent, holding his four-year-old son by the hand. But the testimony for the defense by several witnesses is that Netherland was in the act of raising the side curtain of the tent and going into the cut-off space, where the Punch and Judy show was to be given, and in which space Wood was standing.

The defense introduced the doctor in the case, from whose testimony some strength was sought to be given to the view that Netherland was shot whilst in a stooping position, and that being shot in this manner accounted for the downward range of the ball'. The doctor testified that the range of the ball was downward, but he also says that it struck the shoulder almost on a level, and then ranged a little down. If it was true that the appellant shot. Netherland, who was an entire stranger to him, and against whom he had no malice, supposing him to be one of the group with which he had had a controversy about five minutes before, and that that group was still pursuing him, or that Lambert, one of the group, was still pursuing him, it must be' obvious that this instruction shut out too rigidly and narrowly all that had preceded, and, according to the testimony of the defense, what was then going on between Wood and Lambert, and confined the jury in determining the question of his guilt to what occurred between him and Netherland alone, with whom .he had no quarrel. We ■think this instruction was highly prejudicial on the facts of this case.

Reversed amd remanded.