Opinion
No. 29291.
February 23, 1931.
CRIMINAL LAW.
Defendant, on appeal from conviction, cannot complain of particular language of instruction, where defendant, on same subject, obtained instruction in similar language.
APPEAL from circuit court of Chickasaw county, First district. HON. T.E. PEGRAM, Judge.
Rush H. Knox, of Jackson, for appellant.
Appellant submits that the court committed fatal error and reversible error in granting instruction No. 9 on behalf of the state, which said instruction is as follows:
The court charges the jury for the state that if you believe from the evidence in this case beyond a reasonable doubt that the defendant and Bray and Huffman armed themselves and by agreement among them, or any two of them, went out seeking the deceased for the purpose of killing him or doing him some great bodily harm, the deceased had a perfect right to defend himself and to use such force as was reasonably necessary to protect his wife and person from such attack, and the defendant and Huffman and Bray had no right to shoot deceased and kill him to overcome deceased's efforts to defend and protect himself against such attack, and in doing so their said act in so shooting and killing deceased was not lawful self-defense; and if you believe from the evidence beyond a reasonable doubt that defendant and Bray and Huffman, or either or any of them did so shoot and kill the deceased to overcome the reasonable efforts of the deceased to defend and protect himself against their said attempt and kill him, or otherwise do him great bodily harm, then the defendant is guilty of murder in such killing and the jury should so find even though the jury may further believe from the evidence that the deceased then and there undertook to use his pistol to so defend and protect himself against such dangerous attack.
Murphy case, 129 Miss. 634, 92 So. 694; Rich v. State, 86 So. 770, 124 Miss. 272; Harper v. State, 83 Miss. 402, 35 So. 572; Kearney v. State, 68 Miss. 239, 8 So. 292; Hunter v. State, 74 Miss. 519, 21 So. 305; Jackson v. State, 79 Miss. 45, 30 So. 39; Lofton v. State, 79 Miss. 723, 31 So. 420; Woods v. State. 81 Miss. 165, 32 So. 998; Thames v. State (Miss.), 35 So. 171; Pulpus v. State, 82 Miss. 548, 34 So. 2; Jackson v. State, 79 Miss. 45, 30 So. 39; Hunter v. State, 74 Miss. 519, 21 So. 305; Kearney v. State, 68 Miss. 239, 8 So. 292; Harper v. State, 83 Miss. 402, 35 So. 572. C.A. Bratton, of Pontotoc, for appellant.
Instructions 9 and 10 given on behalf of the state were erroneous.
This instruction No. 9 is fatally defective; in that it says, "if there was a conspiracy between the defendant, Bray and Huffman, or any two of them, then the defendant is guilty as charged."
Can it be the law that where two men conspire together to do an unlawful act, then the third man is guilty, even though he had no part in the conspiracy? If that should be the law, it would cut the defendant off entirely from the right of self-defense, which is one of our constitutional guarantees.
W.A. Shipman, Assistant Attorney-General, for the state.
When we come to examine all of the facts, circumstances and actions of the three, proof of the conspiracy is as firmly established as is the rising and setting of the sun. The conspiracy being thus established, instruction No. 9 is not objectionable.
As to instruction number nine given for the state, it is submitted that even though the court should hold that the parenthetical clause therein "or any two of them" constituted technical error, still it is not fatal or reversible error. All the instructions, both for the state and the accused, are to be taken together and construed as an entirety, one complete instruction. The error, if error it be, caused by the insertion of the above quoted modifying clause in number nine is cured by instructions number 20 and 21 for the appellant.
Instruction number 21 for the appellant told the jury that the presumption of law is that there was no conspiracy between Patterson, Bray and Huffman to take the life of D.A. Box or to do any other unlawful act, that the conspiracy must be proved like any other controverted fact, that unless the jury believed from all the testimony in the case beyond a reasonable doubt that Patterson, Bray and Huffman, or any two of them, actually entered into an agreement between themselves to take the life of Box, then no conspiracy had been proved.
Argued orally by Rush H. Knox, and Carl Bratton, for appellant, and by W.A. Shipman, Assistant Attorney-General, for the state.
We have examined with care the entire record in the light of all the assignments of error, many of which assignments have been pressed with earnestness and ability. We cannot see, however, that there is any substantial ground for complaint against this record. So far as it discloses, the trial court kept the scales well balanced between the state and the defendant. It is simply a case, as we view the law and the evidence, where a conviction was inevitable if judge and jury did their duty.
Beyond the foregoing general resume, there is only one feature of the case that perhaps requires comment. By instruction No. 9 for the state, the jury was told as follows: "The court charges the jury for the state that if you believe from the evidence in this case beyond a reasonable doubt that the defendant and Bray and Huffman armed themselves and by agreement among them, or any two of them, went out seeking the deceased for the purpose of killing him," etc. The complaint against this instruction is that it would hold the appellant to the consequences of guilt, although the conspiracy or agreement was only between Bray and Huffman, the other two parties in the tragedy.
Leaving aside the fact that the court was liberal to the fullest extent of the law in giving instructions favorable to the defendant, and gave one instruction, defendant's instruction No. 22, which by way of a complete summary of the facts of defendant's theory of the defense submitted that theory clearly to the jury, wholly freed from any entanglement of a conspiracy, we think defendant is precluded from raising the point complained of in the state's said instruction No. 9, for this reason: The appellant by his instruction No. 21 requested and was granted an instruction containing the identical proposition in respect to the parties to the conspiracy, that is to say, as between the appellant and his alleged coconspirators or any two of them. Defendant's said instruction reads as follows: "The court charges the jury for the defendant, W.C. Patterson, that the presumption of law is that there was no conspiracy between Patterson, Bray and Huffman to take the life of D.A. Box or to do any other unlawful act, and that a conspiracy must be proved like any other controverted fact, and unless the jury believe from all the evidence in this case beyond a reasonable doubt that Patterson, Bray and Huffman, or any two of them, had actually entered into an agreement as between themselves to take the life of D.A. Box, no conspiracy has been proved." And on the same subject instruction No. 20 for defendant contains the statement "that it devolves upon the state to prove beyond a reasonable doubt that there has been an agreement as between two or more of the parties to take the life," etc.
The point is that an appellant cannot complain of the language of an instruction, when, so far as concerns the particular words complained of, appellant has on the same subject requested, and has obtained, an instruction in similar, or substantially similar, language. 1 Sackett, Instructions, section 314; Branson, Instructions, section 133; 14 R.C.L., p. 815; 4 C.J., pp. 709, 710, and the numerous authorities cited in the notes.
Affirmed.