Opinion
No. 33774.
November 6, 1939.
HOMICIDE.
In prosecution for attempt to kill, where evidence for accused was to the effect that victim without provocation assaulted accused and that accused acted solely in self-defense, whereas, according to evidence for state, accused assaulted victim, without provocation, instruction that, if accused armed himself with knife with intention of provoking difficulty with victim and while so armed provoked difficulty with victim and cut him, he could not plead self-defense, was improperly given because lacking evidence to support it.
APPEAL from the circuit court of Simpson county; HON. EDGAR M. LANE, Judge.
Hilton, Berry Kendall, of Jackson, for appellant.
The honorable trial court erred in granting the state instruction which instructed the jury that the appellant would be precluded from invoking the plea of self-defense if he armed himself with a deadly weapon with the intent and purpose of using same to overcome his adversary, for the reason that there is no evidence in the record to support said instruction and for the further reason that said instruction is defective in that it fails to contain the stipulation that the cutting and wounding must have been done in pursuance of the appellant's previously formed design, intent and purpose.
Lofton v. State, 79 Miss. 723, 31 So. 420; Cooper v. State, 80 Miss. 175, 31 So. 579; Lee v. State, 138 Miss. 474, 103 So. 233; Vance v. State, 183 So. 280, 182 Miss. 840; Pulpus v. State, 82 Miss. 548, 34 So. 2; Rogers v. State, 82 Miss. 479, 34 So. 320; Jones v. State, 84 Miss. 194, 36 So. 243; Williams v. State, 93 Miss. 319, 43 So. 467; Williamson v. State, 115 Miss. 716, 76 So. 637; Woods v. State, 183 So. 508, 184 So. 311, 183 Miss. 135; Herring v. State, 87 Miss. 628, 40 So. 230.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
As to instruction estopping self-defense, under the authorities generally, it appears that this instruction is correct in principle. The only question, it appears to the writer, is whether the evidence in this case is in such shape as to justify the giving of it. We, of course, concede that the use of this instruction has been advised against by the court. Nevertheless, the court has never reversed a conviction for the giving of it where the facts were such as to justify it.
Woodward v. State, 180 Miss. 571, 177 So. 531, 178 So. 469.
Argued orally by Ovie L. Berry, for appellant.
The appellant cut Harvey Hilton with a pocket-knife and was convicted of an attempt to kill and murder him. According to the evidence for the State, the appellant assaulted and cut Hilton when Hilton was unarmed and had done nothing whatever to provoke the assault. According to the evidence for the appellant, Hilton assaulted him and attempted to cut him when he had done nothing whatever to provoke the assault, and that in cutting Hilton he acted solely in self-defense. There was no evidence or inference therefrom that the appellant had armed himself with the knife for the purpose of provoking a difficulty with Hilton, and using it, if necessary, to overcome Hilton.
The court instructed the jury in substance that if the appellant armed himself with the knife with the intention of provoking a difficulty with Hilton, and using it if necessary to overcome Hilton, and while so armed provoked a difficulty with Hilton, and cut him, that he could not plead self-defense. There being no evidence to support this instruction, it should not have been given.
Reversed and remanded.