Opinion
No. 35993.
December 10, 1945.
1. HOMICIDE.
Evidence sustained conviction of murder as against plea of self-defense (Code 1942, sec. 2218(f)).
2. CRIMINAL LAW.
Instruction that to justify homicide on plea of self-defense decedent's conduct must have indicated present intention to kill or do great personal injury to slayer and immediate danger of such intention being accomplished was not erroneous because of omission of the word "apparent" preceding the word "danger," where in same instruction and another obtained by defendant jury was clearly informed that danger might be actual and apparent (Code 1942, sec. 2218(f)).
3. CRIMINAL LAW.
Instructions are to be read and considered together.
4. HOMICIDE.
Instruction on self-defense was not erroneous because of use of the word "immediate" instead of "imminent" in characterizing danger to slayer which would justify a homicide, though the word "imminent" being used in statute is preferable (Code 1942, sec. 2218(f)).
APPEAL from the circuit court of Grenada county, HON. JOHN F. ALLEN, Judge.
C.A. Bratton, of Oxford, and S.C. Mims and Cowles Horton, both of Grenada, for appellant.
The defendant was entitled to a peremptory instruction in the court below and to an acquittal and discharge by this Court on the evidence in this record. When the state closed its case it had proved nothing about this shooting nor whether defendant was guilty or innocent. Except for defendant's own statement to Burns Tatum there was no proof that he had any connection with the case. Except for the testimony of Mrs. Goza and Mr. Jones there was nothing to show the slightest connection of the defendant to the deceased except that he had said to Mr. Tatum that he had shot "a man." In this situation all that the state could do would be to rest its case upon the general presumption or inference in regard to an unexplained killing with a deadly weapon. In this case, however, there is no place whatsoever for such a presumption or inference. The only presumption which could apply was that the defendant was not guilty and was, therefore, entitled to a discharge. This is true for the following reason: The record shows that E.E. Mullen was an eyewitness to this shooting, and the only eyewitness except the defendant. This party lived in an adjoining county and had lived there for the last 20 years. He did not know either the defendant or the deceased and had no interest in this case. He had testified in the committal trial as a witness for the state, at which trial the learned district attorney and county attorney represented the state. He was used by the state as one of its witnesses before the grand jury just three days before this trial began and was summoned by the state for the trial on this indictment. His name appears on the back of the indictment as one of the state's witnesses. Nevertheless and without any explanation the state refused to put him on the stand and rested its case without showing anything whatsoever about this shooting. The court declined to require the state to put on the stand this witness Mullen, the only eyewitness except defendant himself. Thereupon the defendant moved the court for a discharge and this motion was overruled. The motion should have been sustained.
See Patty v. State, 126 Miss. 94, 88 So. 498; Mitchell v. State, 171 Miss. 4, 156 So. 654; Ross v. State, 185 Miss. 438, 188 So. 295; Reddick v. State, 72 Miss. 1008, 1012, 16 So. 490; Brown v. State, 98 Miss. 786, 54 So. 305; Archer v. State, 140 Miss. 597, 105 So. 747; Columbus G.R. Co. v. Lee, 149 Miss. 543, 115 So. 782; Jeffcoat v. State (Miss.), 21 So.2d 8; Casey v. State (Miss.), 23 So.2d 403; Bangren v. State, 196 Miss. 887, 17 So.2d 599; Long v. State, 52 Miss. 23, 35; Natchez S.R. Co. v. Crawford, 99 Miss. 697, 55 So. 596; Irby v. State, 186 Miss. 161, 169, 185 So. 812.
It has been for some time the established rule in this state that where the defendant or the defendant's witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge.
Weathersby v. State, 165 Miss. 207, 209, 147 So. 481; Blackledge v. State, 157 Miss. 33, 127 So. 684; Harvey v. State, 193 Miss. 561, 10 So.2d 552; McLeod v. State, 140 Miss. 897, 105 So. 757; Jarman v. State, 178 Miss. 103, 172 So. 869; Gandy v. State, 195 Miss. 421, 15 So.2d 685; Strahan v. State, 143 Miss. 519, 108 So. 502.
It is true that the direct evidence of a witness may be contradicted by circumstances, but in such case the circumstances relied on for contradiction must be inconsistent with the truth of the testimony. When the testimony of a witness is not contradicted, either by direct evidence or by circumstances, it must be taken as true.
Wilson v. Blanton, 130 Miss. 390, 94 So. 214; Patty v. State, supra.
Reversble error was committed by the action of the court below on the instructions.
Williams v. State, 90 Miss. 319, 43 So. 467; Echols v. State, 99 Miss. 683, 55 So. 485; Regan v. State, 87 Miss. 422, 39 So. 1002; Leverett v. State, 112 Miss. 394, 73 So. 273; Owen v. State, 197 Miss. 561, 19 So.2d 822; Bangren v. State, 198 Miss. 359, 22 So.2d 360; Hairston v. State, 54 Miss. 689; Stroud v. State, 131 Miss. 875, 95 So. 738; Wilson v. Blanton, supra; Patty v. State, supra; Dunbar v. State, 159 Miss. 603, 132 So. 748; Coleman v. State (Miss.), 22 So.2d 410; Alabama V.R. Co. v. Phillips, 70 Miss. 14, 18, 11 So. 602; Boutwell v. State, 165 Miss. 16, 28, 143 So. 479; Marble v. State, 194 Miss. 386, 15 So.2d 693; Dean v. State, 85 Miss. 40, 37 So. 501; Gambrell v. State, 92 Miss. 728, 46 So. 138; Fortenberry v. State, 55 Miss. 403; Ellis v. Berry, 145 Miss. 652, 110 So. 211; Code of 1942, Secs. 1688, 2218.
If defendant is not discharged and if the case is remanded it should be for a trial for manslaughter only.
Brett v. State, 94 Miss. 669, 674, 47 So. 781; Dye v. State, 127 Miss. 492, 90 So. 180; Combs v. State, 175 Miss. 376, 167 So. 54; Bangren v. State, 196 Miss. 887, 17 So.2d 599; Garner v. State, 93 Miss. 843, 47 So. 500.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, J.P. Coleman, of Ackerman, and W.I. Stone, of Coffeeville, for appellee.
It is the contention of the state that appellant had malice for the deceased because he had moved into the filling station, thus dispossessing appellant's brother; that he had shown this malice by his voluntary conversations on two different occasions immediately preceding the killing; that he and his "partner" had provoked the resentment of the deceased by blocking his driveway, thus starting the difficulty; and that the killing was not done in reasonably necessary self-defense. The first assignment of error challenges the correctness of the following instruction: "The Court instructs the jury that in order to justify a homicide on the plea of self-defense there must be something shown in the conduct of the deceased indicating a present intention to kill, or to do some great personal injury to the slayer, and immediate danger of such intention being accomplished; and mere fears or beliefs are insufficient. The danger must be such as to lead a person reasonably to believe that the killing was necessary to prevent the deceased from killing him, or doing him some great bodily harm." This identical instruction was approved by the Supreme Court in Williams v. State (Miss.), 14 So.2d 216.
Instructions which, taken as a whole, fairly charge the law of the case are sufficient.
Bailey v. State, 174 Miss. 453, 165 So. 122; Mississippi Digest, Criminal Law, Key No. 822(1).
See also Lambert v. State, 171 Miss. 474, 158 So. 139; Woodward v. State, 180 Miss. 571, 177 So. 531; Woods v. State, 183 Miss. 135, 184 So. 311; Lewis v. State, 188 Miss. 410, 195 So. 325; Echols v. State, 99 Miss. 683, 55 So. 485; Brown v. State, 98 Miss. 786, 54 So. 305; Coleman v. State (Miss.), 22 So.2d 410; Dunbar v. State, 159 Miss. 603, 132 So. 748.
The appellant was not entitled to a directed verdict. The proof for the state, before it rested its case, clearly showed the advertised ill will of the defendant for the deceased and that shortly afterwards he armed himself and killed him. In fact, he killed the deceased on the very first day he moved into the premises the defendant objected to his moving into. This proof speaks for itself and we simply submit that it clearly and convincingly established the guilt of the defendant beyond a reasonable doubt.
The failure of the state to produce the witness Mullen on its own behalf was not reversible error. We know of no decision or rule that requires the state to use a witness in circuit court simply because it used him on a preliminary trial. The state is not obligated to call as witnesses all persons whose names are endorsed on the indictment. The reason for ths rule is obvious to any attorney or judge who has had experience questioning witnesses before a grand jury, which is merely an inquest, and then developing a case in the circuit court.
Morrow v. State, 57 Miss. 836.
The ancient rule of the common law required the prosecution to introduce all eyewitnesses to the homicide; but this rule has been modified in this state, so that when some of the eyewitnesses have been introduced by the state, the failure by the state to introduce the others or the refusal by the court to allow them to be examined as if witnesses for the state is not error, in the absence of rarely exceptional circumstances.
Ross v. State, 185 Miss. 438, 188 So. 295.
In the instant case the court did allow the defense to cross-examine the witness as if he were a witness for the state, although the state objected to it.
Compare Mitchell v. State, 171 Miss. 4, 156 So. 654; Patty v. State, 126 Miss. 94, 88 So. 498; Carlisle v. State, 73 Miss. 387, 19 So. 206; Hale v. State, 72 Miss. 140, 16 So. 387.
The appellant has had a fair trial, he was the beneficiary of liberal instructions granted in his behalf, and the evidence convicted him of murder beyond a reasonable doubt.
Argued orally by Cowles Horton and C.A. Bratton, for appellant, and by J.P. Coleman, for appellee.
Appellant was indicted for, and convicted of, the murder of Shed Ashmore, and sentenced to the state penitentiary for life, the jury disagreeing as to the punishment.
On this appeal Holmes contends (1) that the evidence is insufficient to show him guilty of any crime whatsoever and that, therefore, his request for a peremptory instruction should have been granted by the lower court, but, if mistaken in this, (2) that he cannot be convicted under the proof of a greater crime than manslaughter; that (3) the trial court erred in granting to the state, and (4) refusing to grant to the defendant, certain instructions hereinafter more specifically set out.
A decision of one will necessarily dispose of both of the first two contentions. Bitter feeling existed between Holmes and Ashmore. Each had made serious threats against the other, but the other did not know of such threats. There is evidence that Ashmore's general reputation for peace and violence was bad, and that Holmes knew that. Holmes shot Ashmore at a gasoline filling station in Grenada, Mississippi, on the morning of March 1, 1945, which was Thursday, and Ashmore died from the shots on Saturday thereafter. This station before that time had been leased to, and operated by, a brother of Holmes, who had lost it for failure to pay the rent, and the owner had leased it to Ashmore, who took charge and and began to operate it the day he was shot. A Mrs. Bunch operated a cafe in the same building, and which adjoined on the south the office and supply room of the gas station. Mrs. Bunch and Holmes protested vigorously, without success, to the owner of the gas station the leasing thereof to Ashmore. Holmes married Mrs. Bunch shortly after this tragedy. The gas station faced west on highway 51. In front of the office, and between it and the highway, two gasoline pumps were located, leaving a space of some 15 to 20 feet between the office and the pumps.
The drama on the fatal morning, as given in the testimony of Holmes himself, was this: He went to the cafe in his automobile, and there parked it; and he and Mrs. Bunch drove into and returned from Grenada in her car, which she then parked near the cafe. At this point Ashmore came out of the office, and thinking, or pretending to think, the cars as parked would interfere with persons desiring to drive to and from his gas pumps, told Mrs. Bunch she would have to move her car. Mrs. Bunch refused, saying the car was on her premises, and she then went toward her cafe; whereupon, as Holmes got into his car, Ashmore demanded that he move the car, using vile language towards Holmes, saying, ". . . when I get this gun you will move it or I will kill you," and "he started to the door of the filling station . . ." and when he was reaching in the door ". . . I didn't know whether he was catching to pull up or what . . . but when he did I shot him"; Holmes, at the time, also uttering vile language directed to Ashmore.
Holmes also testified that before he shot he had gotten into his automobile, and that he procured his pistol from the car pocket; that when the above conversation took place, and when he began to shoot, that Ashmore was some eight to ten steps from him, and that Ashmore had no weapon of any kind in his possession, and made no hostile demonstration whatever toward him; that Ashmore, when Holmes began to shoot, was retreating toward, and went into, his office; that he, Holmes, got out of his automobile and followed Ashmore to the office, and there continued to shoot him, or at him. Holmes had a thirty-two Smith and Wesson automatic pistol, and he shot six times in all, emptying his pistol. He says he shot Ashmore because he thought Ashmore was going to get a gun from his office and shoot him. Ashmore was hit three times. All entered the right side of his body. The first and fatal shot entered the ilium, went through the pelvic cavity and out the left side of the body; another entered from four inches below the first and went through the body; the third entered the inside of the right thigh and remained in the body. Four bullets from the pistol were found in the office, showing that at least four shots were fired therein, and at least one of these shots hit Ashmore.
One, Mullen, apparently the only eyewitness other than Holmes, testified that he was in front of the station and saw what happened; that he heard Ashmore tell Holmes to move the car, and that Holmes replied that he was upon his own premises, and that Ashmore said, with an oath directed at Holmes, ". . . when I get my gun you will move them," and that ". . . Ashmore walked back to his station door . . ."; and that Holmes, using vile language toward Ashmore, began to shoot him, and that at the first shot Ashmore "grabbed his (right) side that way . . ." He also testified that Ashmore had no weapon in his possession.
After the shooting Holmes telephoned the city police he had shot a man, and to come to the Star Cafe. Policeman Tatum shortly arrived. He found Ashmore in agony on the floor in the office and supply room, with no weapon in his possession. Ashmore was carried to the hospital, where, as stated, he died on the following Saturday. Tatum found the four pistol bullets in this office. One of them had struck the floor, indicating that this shot was fired after Ashmore had fallen. Tatum also found in his office a twenty-two gauge rifle, and another witness testified that Ashmore had told him that this might be the rifle that would kill Holmes. However, that was not communicated to Holmes. It is thus seen that appellant shot Ashmore with a deadly weapon at a time when Ashmore was from 24 to 30 feet from him, possessed of no weapon at the time, and while Ashmore was retreating from him, and that appellant got out of his automobile and followed Ashmore to his office, a distance of at least 30 feet, and there continued to shoot him, or at him, while Ashmore yet had no weapon and was helpless, and after he had been mortally wounded, all because, as Holmes said, he thought Ashmore might procure in his office some weapon the nature and existence of which he knew not, and attack him. Holmes said he shot Ashmore in self-defense — not in the heat of passion. The jury was amply justified in finding him guilty of murder. It follows that the first two contentions are not well taken.
We will now discuss the instructions given the state, of which appellant complains. Several of these were given on the assumption that the jury could convict appellant under the evidence in this case. Appellant says this was error, because the evidence does not permit of conviction of any crime. What we have said above adversely disposes of this contention. We might add, in this connection, that the state procured and submitted to the jury a manslaughter instruction, which the jury rejected.
Appellant complains of this instruction given the state: "The Court instructs the jury that in order to justify a homicide on the plea of self-defense there must be something shown in the conduct of the deceased indicating a present intention to kill, or to do some great personal injury to the slayer, and immediate danger of such intention being accomplished; and mere fears or belief are insufficient. The danger must be such as to lead a person reasonably to believe that the killing was necessary to prevent the deceased from killing him, or doing him some great bodily harm." It is first said that the word "apparent" should have preceded the word "danger" in that instruction. That is technically correct; but the rest of the instruction clearly informed the jury this danger might be actual or apparent; as, for instance, "The danger must be such as to lead a person reasonably to believe that the killing was necessary . . ." In addition to this, appellant obtained an instruction which told the jurors it was their duty to place themselves in the position of Holmes, "when he shot the deceased and throughout your consideration of this case to judge the defendant from his viewpoint and as things then appeared to him." It is a frequent announcement of the Court that all the instructions are to be read and considered together.
Further objection is made to this instruction because it used the word "immediate" instead of "imminent" preceding and modifying the word danger. Since the word imminent is used in section 2218 (f), Code 1942, it is preferable that it be used rather than the word immediate, yet the word immediate was used in an instruction given in the case of Williams v. State (Miss.), 14 So.2d 216, and not disapproved by this Court; and the case of Fortenberry v. State, 55 Miss. 403, cited by learned counsel, is not to the contrary under the facts of that case.
Webster's New International Dictionary, Unabridged, (2d Ed.), gives as one meaning of imminent, ". . . . threatening to occur immediately; near at hand; impending"; and of immediate, "next in line or relation; directly connected, succeeding, or the like. The immediate future; occurrng without delay." We do not think the jury could have been misled by the use of the word immediate, and, as stated, other instructions were given appellant clearly setting out his rights in this respect.
Appellant requested seven instructions which were refused. One was a peremptory; some bore on the weight of the evidence. We have carefully examined all of them. We think there was no error in their refusal; but, if so, such error was cured by the instructions granted appellant. He obtained twelve instructions, submitting to the jury every right to which he could have been entitled under the evidence of this case.
The fact is, counsel on both sides, displayed unusual skill and ability, and the trial judge commendable care and fairness, in the trial of this case. Appellant had a fair trial at the hands of a jury of his county, and they found him guilty. There is nothing in this record which would justify us in setting aside that verdict.
Affirmed.