McPhay v. State , 87 Miss. 456 ( 1905 )

Truly, J.,

delivered the opinion of the court.

We are asked to reverse the judgment herein and to hold that under the case made by the record appellant can at most only be rightfully convicted of manslaughter. The principle of law upon which the argument in support of that position is grounded is that the homicide was committed in resisting an unlawful arrest, and hence was manslaughter only. It is, however, not necessary for us to enter upon any consideration of the accuracy of the legal proposition invoked, because, conceding its abstract soundness, it is not controlling in the instant case. According to the story of appellant, the homicide was committed, not in resisting unlawful arrest, but in his own absolutely necessary self-defense. His plea was that he fired the fatal shot to protect himself from a deadly and unprovoked assault, being himself at the time unaware of the real identity of his assailant, whom he in truth believed to be a different man. Appellant, by his own testimony, did not attempt to justify his conduct by tbe plea that be was resisting an unlawful attempt to arrest him. Nor was tbe prosecution predicated of tbe idea that tbe homicide was committed while an effort was being made to effect an arrest. Tbe theory of tbe state — a theory strongly corroborated by tbe location of tbe fatal wound, tbe physical facts, and all tbe circumstances attendant upon tbe tragedy — was that tbe killing was an assassination, an assassination so wanton and so cowardly that tbe appellant has cause of thankfulness for the clem•ency of tbe jury in not. affixing tbe death penalty.

Affirmed.