Opinion
No. 34747.
February 9, 1942.
1. HOMICIDE.
In murder prosecution resulting in manslaughter conviction, where defendant's version was that she cut deceased at a time when he was trying to impose his attentions upon her over her protests and against her will in such a manner as to commit a statutory offense against her person, whether her story was substantially contradicted in material particulars by any credible witness or witnesses for the state or by any physical facts and matters of common knowledge was for the jury (Code 1930, sec. 988(f)).
2. HOMICIDE.
If accused had reasonable grounds to apprehend a design of deceased to commit a felony against person of accused or to do her some great personal injury and there was imminent danger of such design being carried out the homicide was justifiable (Code 1930, sec. 988(f)).
3. HOMICIDE.
Where defendant's version was that she cut deceased at a time when he was trying to impose his attentions upon her over her protests in such a manner as to commit a statutory offense against her person, instructions for the state requiring that the jury should believe that defendant entertained a reasonable apprehension that deceased intended to take her life or to do her great bodily harm in the sense of endangering her life before the jury would be warranted in acquitting her required reversal (Code 1930, sec. 988(f)).
APPEAL from the circuit court of Holmes county, HON. S.F. DAVIS, Judge.
P.P. Lindholm, of Lexington, for appellant.
The killing of a human being by the act of another shall be justifiable when committed in the lawful defense of one's own person, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished.
Code of 1930, Sec. 988, par. (f).
Where the undisputed testimony of a married woman shows that she was assaulted with force by a mature, physically strong, drunken man of large size and weight, with an attempt by him to commit rape on her, or even to have sexual intercourse against her will, and she defends herself by striking her assailant with a knife, resulting in his death, and her uncontradicted testimony is reasonable, and no unlawful motive shown, the homicide is justifiable and the defendant should be acquitted.
Bowen v. State, 164 Miss. 225, 144 So. 230.
Even if the evidence in this, a capital case, was very close as to the guilt of the defendant, nothing is to be left to conjecture as to what instructions may have been followed by the jury. A defendant, on trial for a felony, is entitled to have the rules of law, applicable to her case, distinctly declared by the court to the jury, and if this be not done, and the jury be in danger of being misled on a vital point thereby, the giving of such instructions will be reversible error. And in the case at bar, a capital case, where the state obtained and used an instruction (State's Given Instruction No. 2) that sets up justifiable homicide as a defense, only if defendant had reasonable ground to apprehend a design on the part of the deceased to kill her, or to do her some great bodily harm, etc., which instruction entirely ignores the only defense offered, to-wit: that she stuck deceased with a knife to prevent a forcible ravishment — is misleading; and it was grossly misleading when read together with the State's given Instruction No. 6, defining manslaughter. By reading these two instructions together, the jury would have been necessarily misled to the conclusion that defendant would have to be convicted of manslaughter, because the State's Instruction No. 2 had said, in effect, that stabbing to prevent ravishment was without authority of law, and striking to prevent being killed was her only authority of law to stab deceased.
Staten v. State, 30 Miss. 619; McNeal v. State, 115 Miss. 678, 76 So. 625; 13 R.C.L. 931, par. 233.
Greek L. Rice, Attorney-General, by Geo. H. Ethridge, Assistant Attorney-General, for appellee.
The two instructions complained of by the appellant — Nos. 2 and 6 — are not erroneous, or if erroneous at all, not erroneous to the extent of causing a reversal. Instruction No. 2 seems to me to be a repetition of what has been many times approved as to the law announced in it. It does refer to self-defense on the idea that the defense was a defense of life and not a defense of the person, but it does contain the phrase, "The design on the part of the deceased to kill her or to do her some great bodily harm." The words "design to kill her" had no support in the evidence, but the "design to do her bodily harm" carries the right to prevent the harm by taking life if need be. Furthermore, the defendant got an instruction announcing to the jury that the defendant had the right to protect herself from being ravished, and this instruction for the defendant announces all that was omitted or could have been placed in the state's instruction. All the instructions of the court are to be taken together, one as modifying or supplementing the other, and they are to be taken and considered as a whole, and if when so considered they announce the complete law applicable to the case, there is no reversible error.
The question is one for the jury. The evidence warrants the verdict, and the appellant had all the law required for her defense in this case.
The appellant, Beatrice Hodges, was tried for the alleged murder of Dave Wright, and convicted of manslaughter. On appeal she assigns as error, first, the refusal of the court below to grant a peremptory instruction in her favor; second, the giving of certain instructions on behalf of the state; and, third, the overruling of a motion for a new trial, on the ground that the verdict of the jury was contrary to the overwhelming weight of the evidence.
The rule announced in the case of Weathersby v. State, 165 Miss. 207, 147 So. 481, and in other cases to the same effect, is invoked in support of the contention that the appellant was entitled to the requested peremptory instruction. No other witness saw the accused inflict the knife wound which caused the death of Dave Wright. He stated, while en route to the hospital, that he did not know who cut him. The appellant later admitted to the sheriff that she did the cutting at a time when Dave Wright was trying to impose his attentions upon her, over her protest and against her will, in such manner as to commit a statutory offense against her person. He was in an intoxicated and drunken condition when visited by a local physician at the hospital shortly after being wounded. Assuming that the appellant's version as to the necessity for using her knife in the lawful defense of her person was a reasonable account of what occurred, we are of the opinion that in view of other circumstances disclosed by the testimony on behalf of the state it was a question for the jury as to whether her story was substantially contradicted in material particulars by any credible witness or witnesses for the state, or by any physical facts and matters of common knowledge.
We deem it unnecessary to set forth in detail at this time all the facts and circumstances testified to, and also think it improper to comment upon any reasonable inference to be drawn therefrom, either as supporting or contradicting the defense made, upon which we base this conclusion, for the reason that we have determined that the case should be reversed and remanded for a new trial, both on the ground that the evidence most strongly tends to support the appellant's version of what occurred, and because the instructions granted for the state seem to have presented for the consideration of the jury the single theory as to whether or not the appellant killed her alleged assaulter in order to prevent him from killing her, or doing her some great bodily harm in the sense of danger to her life, when there was no issue of self-defense plead or presented by the evidence within that meaning of the term, the sole defense made by the appellant being interposed under subsection (f) of section 988, Code 1930, declaring that the killing of a human being shall be justifiable, "When committed in the lawful defense of one's own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished." In other words, if the appellant had reasonable grounds to apprehend a design on the part of Dave Wright to commit a felony against her person, or to do her some great personal injury, and that there was imminent danger of such design being carried out, the homicide was justifiable; whereas, the instructions for the state seem to require that the jury should believe that the appellant entertained a reasonable apprehension that he intended to take her life, or to do her great bodily harm, in the sense of endangering her life, before the jury would be warranted in acquiting her, entirely leaving out of consideration the right to protect her person against the commission of the threatened felony testified to. Staten v. State, 30 Miss. 619; McNeal v. State, 115 Miss. 678, 76 So. 625.
Reversed and remanded.