James v. State

^* Headnote 1. Homicide, 30 C.J., section 237; On admissibility in evidence of threats for the purpose of justifying homicide, see notes in 17 L.R.A. 654; 2 L.R.A. (N.S.) 104, 3 L.R.A. (N.S.) 523; 13 R.C.L. 922. Appellant, Phillip James, was indicted and convicted in the circuit court of Grenada county of the murder of Gene Eskridge and sentenced to the penitentiary for life, from which judgment he prosecutes this appeal.

Two errors are assigned: (1) That the evidence was insufficient to support the conviction; (2) that the court erred in refusing to instruct the jury, at the request of appellant, that if they believed from the evidence the deceased had threatened the life of appellant, which threat had been communicated to appellant, and the latter, because of such threat, shot and killed the deceased, the jury should acquit appellant.

1. With reference to the sufficiency of the evidence to sustain the conviction, we have to say that we have carefully read and considered the evidence and are of the opinion that it was sufficient to justify the verdict of the jury.

2. The instruction requested by appellant is clearly erroneous. By it the appellant sought to have the court charge the jury that appellant had the right to kill the deceased because he knew deceased had threatened his life. This is not the law. It took more than a threat by deceased against the life of appellant to justify the latter in killing the deceased. There must have been in addition, at the time of the homicide, an overt act on the part of the deceased indicating a purpose to carry out such threat.

Affirmed.