Herring v. State , 87 Miss. 628 ( 1905 )

Cali-ioon, J\,

delivered the opinion of the court.

While we agree with the assistant attorney-general, in his lucid and frank brief, that this seems to be a case of deliberate murder, still we are not the jury, and cannot close our eyes to the fact that there was evidence tending to show self-defense. This being true, it was clearly erroneous to give instruction number two for the state, as follows:

“The court instructs the jury, for the state, that one who is the aggressor in a difficulty, and who arms himself with a deadly weapon for the purpose of overcoming his antagonist in the combat, cannot be heard to plead self-defense if, in the difficulty that ensues, he kills his antagonist; and if the jury believe, from the evidence in this case, beyond a reasonable doubt, that the defendant armed himself with a rifle and entered into a difficulty with Frazier, intending to use the rifle, if necessary, to overcome Frazier, and that Herring then and there, unlawfully, willfully, deliberately, and of his malice aforethought, shot and killed Frazier, he cannot lawfully plead self-defense, and he is guilty as charged, and you should so find.”

This instruction has been quite often condemned by this court. Lofton v. State, 79 Miss., 723 (31 South. Rep., 420); Cooper v. State, 80 Miss., 175 (31 South. Rep., 579); Jones v. State, 84 Miss., 194 (36 South. Rep., 243); Pulpus v. State, 82 Miss., 548 (34 South. Rep., 2).

It will be noted that the charge nowhere intimates that the killing had to be in pursuance of the previous malicious purpose to kill, with which purpose the weapon was provided. A man may procure a weapon and provoke a difficulty and kill, and still be innocent, if he did it in self-defense at the time, and not in pursuance of the original malicious intent. If stress be laid on the words in the latter part of instruction number two for the state, that if the defendant, “unlawfully, willfully, deliberately, and of his malice aforethought, shot and killed Frazier, he cannot lawfully plead self-defense,” etc., then the instruction is glaringly misleading in its former part. We hope at some day to see the end of such experimental charges in state cases, where, for the protection of the innocent, all men are given by law the equal right to an impartial trial under instructions announcing correct legal principles. In this view district attorneys may be of immense aid to trial judges, who must act, in the hurry of trials, to the advancement of justice and the economy of the state. Where defendants ought to be convicted they generally are, on few or no instructions; and illiberal rulings on the offer of testimony, or charges not entirely free from criticism, are of doubtful propriety.

Reversed and remanded.