Opinion
No 42766.
December 9, 1963.
1. Homicide — instructions — self-defense instruction not warranted by facts.
Facts in murder prosecution did not warrant instruction that defendant had right to carry deadly weapon if he believed his life had been threatened and that, so armed, had right to approach deceased on any peaceable mission, as there was no evidence of threat or that defendant approached deceased on peaceable mission.
2. Criminal law — instructions — omission of element of malice aforethought where included in other instructions.
Failure of instruction in murder prosecution to include element of malice aforethought was not error where other instruction included element.
3. Murder — guilty verdict not contrary to weight of evidence.
Verdict of guilty of murder was not contrary to the overwhelming weight of the evidence.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Copiah County; TOM P. BRADY, Judge.
S.E. Allen, Jr., R.O. Arrington, Jr., Hazlehurst, for appellant.
I. The Court below erred in refusing to grant the appellant a proper instruction in regard to the right of the appellant to carry a concealed, deadly weapon under the circumstances in the case. Wood v. State, 165 Miss. 363, 144 So. 545.
II. The Court below erred in granting Instruction Number Four for the state which defined murder as a homicide done with the deliberate desire to effect the death of the person killed without the qualifying phrase, "malice aforethought", or its equivalent, which effectively denied the appellant of his plea of self-defense and destroyed his right to have the jury pass upon the question of whether or not he was guilty of murder or acting in self-defense. Davis v. State, 220 Miss. 818, 72 So.2d 172.
III. The verdict of the jury was against the overwhelming weight of the credible evidence, and a new trial should be granted. Casey v. State (Miss.), 23 So.2d 403; Moore v. State (Miss.), 20 So.2d 96; Simmons v. State, 206 Miss. 535, 40 So.2d 289.
G. Garland Lyell, Jr., Asst. Atty. Gen., for appellee.
I. The trial court did not err in refusing to grant appellant the instruction on carrying a deadly weapon. Dossett v. State, 211 Miss. 650, 52 So.2d 490; Labbous v. State, 195 Miss. 295, 15 So.2d 687; McBroom v. State, 217 Miss. 338, 64 So.2d 144; Riley v. State, 217 Miss. 451, 64 So.2d 572.
II. The trial court did not err in granting Instruction Number Four for the State. Adams v. State, 175 Miss. 868, 167 So. 59; Huddleston v. State, 134 Miss. 382, 98 So. 839; Neilsen v. State, 149 Miss. 223, 115 So. 429; Pruitt v. State, 163 Miss. 47, 139 So. 861; Shields v. State, 244 Miss. 543, 144 So.2d 786; Smith v. State, 167 Miss. 85, 147 So. 482; Tatum v. State, 176 Miss. 571, 169 So. 841; Wiggins v. State, 199 Miss. 114, 23 So.2d 691.
III. The verdict of the jury was not against the overwhelming weight of the evidence. Cobb v. State, 235 Miss. 57, 108 So.2d 719; Matthews v. State, 243 Miss. 568, 139 So.2d 386; Prisock v. State, 244 Miss. 408, 141 So.2d 711.
Willie Lee McCoy appealed from a conviction of murder.
Willie Lee McCoy and Will Roy Page, both about twenty-one years old, met at Lonnie Butler's Cafe out west of Hazlehurst on the Lake Road. They both had knives and fell into an argument, the subject of which is unknown. McCoy suggested they discard their knives and fight like men, but Page declined. The matter rested there and their paths did not cross until one evening about three weeks later when they again met in front of Lonnie Butler's Cafe. They began cursing each other. Page, apparently remembering McCoy's previous offer to fight like a man without knives, took off his coat and handed it to one of several by-standers. McCoy took about two steps toward Page and drove a hunting knife to the hilt in Page's breast. The knife penetrated the heart. Page died. Page had no weapon and made no effort to harm McCoy. His hands were down by his side when McCoy stabbed him. McCoy testified and made a feeble effort to claim self-defense, which the jury rejected by returning a guilty verdict. The jury fixed life imprisonment as the punishment. McCoy appealed.
(Hn 1) Appellant assigns as error the refusal of a requested instruction to the effect that appellant had a right to carry a deadly weapon if he believed his life had been threatened and that so armed he had a right to approach the deceased on any peaceable mission. The same instruction was approved in Wood v. State, 165 Miss. 363, 144 So. 545 (1942), but the facts in the case at bar did not justify the instruction. There was no evidence of any threat by deceased. There was no evidence that appellant approached deceased on a peaceable mission.
(Hn 2) The assignment of error based on the granting to the State of Instruction Number Four is without merit. It is argued that the instruction should have included the element of malice aforethought. All instructions must be read together, and the State's Instruction Number Seven included the element of malice aforethought.
(Hn 3) Appellant finally argues that the verdict was contrary to the overwhelming weight of the evidence. We fail to find merit in this contention. Eye witnesses who apparently had no interest in the case testified to the facts as above stated. Appellant admitted that deceased had done nothing but curse him. He did testify that deceased ran his hand into his pocket, but he did not testify that deceased had any weapon. In fact, he said that he stabbed deceased because deceased cursed him.
The evidence was ample to sustain the conviction. We find no reversible error.
Affirmed.
Lee, P.J., and Kyle, Ethridge and Brady, JJ., concur.