Busby v. State

At the last term of this court this case was affirmed and a memorandum opinion filed. During the term a suggestion of error was filed and continued to this term of the court.

Upon a re-examination of this case on the suggestion of error we have decided to withdraw the former memorandum opinion and set aside the judgment heretofore rendered therein. We file this opinion in lieu thereof.

Upon an indictment charging W.A. Busby, the appellant, with murder in the killing of Hubert Wood, he was tried by a jury, convicted, and sentenced to be hanged, and from a judgment entered accordingly he appeals here.

In the forenoon of May 29, 1935, the appellant and the deceased, Wood, engaged in a difficulty which resulted in Busby stabbing Wood with a knife, from the effects of which he died in a very short time. According to the evidence, Wood lived with his mother in a house very close to that occupied by Busby and his wife and children; the houses were only about ten feet apart; both faced the highway just outside the city of Hattiesburg. Each lot was fifty feet wide and extended back a distance of about two hundred feet to a creek; wire fences inclosed both lots, and separated each from the other; there was also a fence on Wood's lot paralleling the division fence and three or four feet therefrom; and these two fences made a lane extending to the rear fence at the back of the lots. There appears to have been some vacant ground between the creek and the back of the lots.

Mrs. Wood testified for the state that she was sitting in a swing on her back porch on the morning of the difficulty; that Ray Clark was sitting with her, and that Hubert Wood came out of the living room and, without speaking to either of them, went out the back door and turned down the lane; that she arose and ran to the door, Ray Clark preceding her, and that when she looked down the lane she saw Busby striking her son over the head with something that he had in his hand, she ran into her room and seized a gun; that when she was about halfway down the lane she saw blood streaming down her son's face; and that when she was within a few feet of them she saw Busby strike Wood again with something strapped to his wrist, which she supposed was a blackjack; that her son was standing trying to push Busby away from him; that she raised the gun to shoot, but feared she would shoot her son, so she started through the gate, and as she went through Busby snatched the gun from her and struck at Hubert, who dodged the blow, and Busby hit the tree; that Busby remarked as he grabbed the gun from her, "I'm gonna kill both of you God-damned son of bitches;" that the gun broke as it hit the tree, and then appellant hit Mrs. Wood with it; that the appellant held Hubert against the fence with his body, put his blackjack in his pocket and took something out of his pocket which she thought was a gun; that she could not tell whether he was opening a knife or what he was doing, but that she saw him pushing it toward her son; that when he stabbed Hubert he lunged forward and pushed Busby partly down, and when Busby raised up she grabbed the gun and struck him; that she struck Busby a second time; and that Hubert started staggering toward the house. On further examination she was positive that the struggle over the gun occurred subsequent to the time Busby inflicted the knife wound on Wood. It further appears that when the gun broke Mrs. Wood seized the barrel and used that in the fight, while Busby used the stock of the gun.

Ray Clark testified that the first thing he saw was Busby hitting Wood with something in his hand. He then ran to a neighbor's for assistance and saw no more of the difficulty.

Harvison, a witness for the state, testified that he saw the difficulty after he left his house and was proceeding down the lane, and substantially corroborated Mrs. Wood's testimony, both of them saying that she hit Busby twice over the head with the gun barrel.

Wood fell in the lane and was conveyed promptly to a hospital, where he died in a few minutes. The physician who examined him at the hospital testified that he found three cuts on his head, that there was no fracture of the skull, but that both the skin and tissue had been cut in one place about an inch and a half to two inches long, extending from the front to the back of the head; that there was another wound about an inch long; that the knife wound entered the body at the left of the sternum between the fifth and sixth rib and pierced the right auricle of the heart, the range of the wound being slightly upward. Mrs. Wood also had scalp wounds on her head, one of which she exhibited to the jury and said that it had required some stitches.

The appellant's version of the killing was to the effect that he had assisted his wife in washing clothes that morning, and as he walked out on the back porch Wood, who was in the lane, called to him and said, "I want to talk to you;" that he walked on down the lane following Wood, thinking he wanted to have a private conversation; that as he started to crawl through the fence, and before he had straightened up, Wood struck at him, and that thereupon they engaged in a fist fight; that when they had struck five or six blows the next thing he knew somebody struck him from behind; that he looked around and saw Mrs. Wood standing there and drawing the gun back; that he grabbed the gun as she struck at him the second time, and struck her with his fist, which knocked the gun loose from her hands; that he then had the gun in his hands. Hubert had stepped back, and he had backed off to get out of Hubert's reach in order to keep him from getting the gun; that he could have shot Wood but he clubbed him with the gun and the barrel fell on the ground, Busby retaining the stock; that Mrs. Wood picked up the barrel, Wood ran into Busby, and he struck Wood with the gun stock, and Mrs. Wood hit appellant again and knocked him away from Wood; that he fell, and as he was getting up Wood hit him and Mrs. Wood struck him again with the gun barrel. Appellant testified further that when Wood was striking him in that position he realized he was fighting for his life, that he got his knife out of his pocket, opened it, made an attempt to get up, and struck with the knife as he got up, and that he did not know whether he had cut Wood or not because his mind was blank for a second. He further testified that he received several blows on the head. He denied positively that he had stabbed the deceased with a knife before the battle with the gun started. He denied that he had used a blackjack or anything except his fists and the knife in the fight.

Busby's daughter corroborated his statement that Wood was the aggressor and struck her father as he went through the gap in the fence, and that Wood had something in his hand. The evidence of these two witnesses as to Wood being the aggressor in the beginning of this difficulty is not disputed. The daughter fled from the scene and did not see all that transpired there.

The physician who examined Busby at the jail found that he had a bruised eye and three wounds on his head of about the same character as those upon the head of the deceased.

After the conviction, there was a motion for a new trial, the details of which we will not set forth in view of the conclusion we have reached.

The court below granted the following instructions, among others, for the state:

(1) "The court instructs the jury for the state that if from all the testimony in the case you believe beyond a reasonable doubt that the defendant was feloniously committing an assault and battery upon the person of the deceased, Hubert Wood, by means and use of some instrument capable of producing death or of doing him great bodily harm and that the mother of the deceased saw such assault being made upon her son and that she believed or had reasonable grounds upon which to believe that the life of her son was in imminent and impending danger of being feloniously taken at the hands of the defendant then the law permitted her to use such reasonable force and means as might reasonably appear to a reasonable and prudent person, under the circumstances, to prevent the death of her son or great bodily harm to him."

(2) "The court instructs the jury for the state that malice, such as to render one liable for acts committed thereunder may be formed instantly and need not dwell or reside in the bosom for any definite or fixed period of time but if malice exists and one acts thereunder he is responsible."

(3) "The court instructs the jury for the state that it is the probable consequence of the use of a deadly weapon in an assault and battery committed by one person on another, that the death of the party may ensue; and, hence, under the law, proof of such use is prima facie evidence of an intent to kill."

(4) "The court instructs the jury for the state that the killing of a human being, without malice, in the heat of passion is manslaughter."

1. We are of the opinion that instruction No. 1 granted to the state was erroneous and prejudicially affected the rights of the appellant. This instruction undertook to justify the action of the mother in rushing to the scene of the combat with a loaded gun. The giving of the instruction unduly emphasized the action of Mrs. Wood, the state witness. She was not indicted so far as this record discloses, and was not on trial in this case. The instruction put upon the appellant, who was on trial for his life, the burden of defending the case insofar as the charge of murder was concerned, and also of repelling this theory injected into the case by the state. An instruction of this character is proper on behalf of a defendant who is on trial but the state may not bolster up its own witness, not on trial, with such an instruction under the circumstances here. The state contends that it was proper to grant this instruction on the authority of McGehee v. State, 138 Miss. 822, 104 So. 150. In that case the instruction was given on behalf of a defendant on trial whose defense was in effect the same as that outlined by Mrs. Wood's evidence. We find no case where this instruction has ever been given except upon applicable facts interposed as a defense on behalf of a defendant. The instruction as given is not accurate in that it warranted the jury to rest a verdict upon what Mrs. Wood believed. If Mrs. Wood had been on trial, she could not have relied upon her own belief in rushing to the attack, but her action would have been judged by the jury as to whether or not the jury was of the opinion that she had a right to believe, under the circumstances, that her son was in danger, real or apparent, of losing his life or suffering great bodily harm.

2. We think there was no error in instruction No. 2 as to malice, and that it is not subject to the criticism of appellant.

3. In our judgment instruction No. 3 is not warranted, and the clause "and, hence, under the law, proof of such use is prima facie evidence of an intent to kill" renders the entire instruction erroneous. We think the jury might have been misled by this instruction. At best, the use of a deadly weapon is but an inference of fact as to an intent to kill and is not a presumption of law. We have repeatedly held that, where the facts are in evidence, presumptions yield thereto. In this case there was no dispute as to the fact that appellant stabbed the deceased with a knife. Intent in the crime of murder is a necessary part of malice. We think the same reason which has been applied to cases where the instruction as to malice has been condemned is also applicable in condemning this instruction. In the case of Batiste v. State, 165 Miss. 161,147 So. 318, the instruction under consideration was to the effect that malice might be presumed from the deliberate use of a deadly weapon. The court said: "It has been repeatedly held by this court that where all the facts and circumstances surrounding a homicide, or an alleged assault and battery with intent to kill and murder, are fully disclosed by the evidence, it is error to instruct the jury that the law presumes malice from the deliberate use of a deadly weapon. Walker v. State, 146 Miss. 510,112 So. 673; Cumberland v. State, 110 Miss. 521, 70 So. 695; Smith v. State, 161 Miss. 430, 137 So. 96; Winchester v. State,163 Miss. 462, 142 So. 454." The discussion of this point in Hawthorne v. State, 58 Miss. 778, fully illuminates the position of this court.

4. Instruction No. 4 purports to be a definition of manslaughter but is essentially erroneous. Section 996, Code of 1930, provides that "the killing of another in the heat of passion, without malice, by the use of a dangerous weapon, without authority of law, and not in necessary self-defense, shall be manslaughter." It will be noticed that the definition as contained in this instruction omits therefrom the phrases, "by the use of a deadly weapon, without authority of law, and not in necessary self-defense;" in other words, every man committing a homicide without malice, in the heat of passion, is guilty of manslaughter according to the instruction here under review. As the state saw fit in this case to instruct the jury on the crime of manslaughter, it would seem that it should have copied the statute. The instruction omits material elements of the crime of manslaughter. Perhaps we would not reverse this case because of this erroneous instruction if it stood alone. The appellant was convicted of murder, and therefore it cannot be said that the erroneous instruction as to manslaughter prejudicially affected him. Fleming v. State, 142 Miss. 872, 108 So. 143.

5. The falsus in uno, falsus in omnibus instruction was erroneous, in that the jury was not required to determine the facts therein set forth from the evidence. Butler v. State (Miss.), 170 So. 148; Powers v. State, 168 Miss. 541,151 So. 730. The defendant requested no instruction on this point. The jury had to find that a witness had sworn falsely, etc., from the evidence and not from what the jury or members thereof may have known about the witness. It may be seriously doubted whether it was proper to give this instruction here, for the reason that the appellant was the only witness who testified in his behalf as to the details of the homicide, and the instruction pointed out the appellant and marked him for discredit. Pigott v. State,107 Miss. 552, 65 So. 583, and authorities there cited.

We think there was a conflict in the evidence as to whether the defendant was guilty of murder or manslaughter, or whether he acted in self-defense, which made a case for the jury on these questions. Considering the several events to which we have called attention, we have determined that it is our duty to reverse the case and remand it for another trial in order that the appellant may be tried upon instructions properly announcing the law applicable to the facts of the case.

Reversed and remanded.

Smith, C.J., dissents.