Opinion
No. 38729.
May 4, 1953.
1. Instructions — uncertain in meaning — confusing.
An instruction which is uncertain in its meaning and which if granted would have had a tendency to confuse the jury is properly refused.
2. Instructions — assault and battery with intent — accident.
In a prosecution for assault and battery with intent when there was no proof to support the theory that the shooting was an accident, an instruction embodying that theory was properly refused.
3. Instructions — assault and battery with intent — improper issue.
When in the case above mentioned there was no proof that, at the time the accused fired the shot, he was in real or apparent danger of losing his life or suffering great bodily harm at the hands of the person who was shot, an instruction which would have submitted to the jury the question whether the accused acted as a reasonable man was properly refused.
Headnotes as approved by Kyle, J.
APPEAL from the circuit court of Attala County; HENRY L. RODGERS, Judge.
Crawley Brooks, for appellant.
I. The court erred in denying the instructions marked "refused," asked by the defense. Nelms v. State, 58 Miss. 368, par. 5; Browning v. State, 30 Miss. 656; Mixon v. State, 55 Miss. 525; Alexander, Mississippi Jury Instructions, Vol. 1, Sec. 1947, p. 457.
II. The court erred in refusing to direct the jury to return a verdict of not guilty. The verdict of the jury is against the overwhelming weight of the credible testimony; the verdict of the jury is contrary to the law; and the court erred in overruling the motion of the appellant for a new trial. Armstrong v. State, 48 So.2d 476; Justice v. State, 154 So. 265; Nichols v. State, 164 So. 20; Conway v. State, 171 So. 16; Jolly v. State, 174 So. 244; Martin v. State, 19 So.2d 488; Jefferson v. State, 52 So.2d 92; Dickerson v. State, 54 So.2d 925.
J.T. Patterson, Assistant Attorney General, for appellee.
This case finds parallel in the recent case of Boatman v. State, 61 So.2d 785, wherein this Court held, "Neither the jury, nor this Court, may, when the entire affray is not witnessed attribute to the accused a defense or justification which he does not assert or rest upon. Allen v. State, 139 Miss. 605; Davis v. State, 157 Miss. 669, 128 So. 886; Baker v. State, 192 Miss. 406, 6 So.2d 315."
In concluding its opinion in the Boatman case, supra, this Court said, "Had the indictment and conviction been for murder, difficulties may have arisen under the record. As stated above, the jury was justified in finding either that the use of a deadly weapon was an exercise of unnecessary force or that the homicide while not premeditated, was, under the circumstances, unjustified."
In the Boatman case, supra, the appellant shot and killed his adversary after they had engaged in a fist fight. The proof showed that at the time Boatman shot the deceased, the deceased was not doing anything whatsoever to him. Boatman did not testify or offer any witnesses in his behalf in support of his contention that he shot the deceased at a time when he had reason to believe that the deceased was about to take his life or do him some great bodily harm.
In the case of Eaton v. State, 186 Miss. 459, 191 So. 93, the facts were somewhat similar to the case at bar, and in affirming Eaton's conviction, this Court held, "It does not appear, therefore, that the pistol was aimed in self-defense, or that Eaton was in any danger at the time he drew the pistol, all of the evidence showing that Carter was not within striking distance or near enough to Eaton to do any harm with the ax at the time the pistol was drawn, nor was there anything in the evidence upon which the jury could rightly infer that Carter intended to do any physical injury to the appellant."
There is nothing in the evidence herein to show that the prosecuting witness was about to, or intended to, do the appellant any harm whatsoever.
The appellant, Matthew Riley, who was also known as "Jake Riley", was indicted, tried and convicted in the circuit court of Attala County on a charge of committing an assault and battery upon the person of Gip Evans, with a deadly weapon, to-wit, a pistol, by unlawfully, willfully, intentionally and feloniously pointing and aiming the pistol at and toward Gip Evans, and while so doing shooting and wounding the said Gip Evans, not in his necessary self defense, and not in the lawful discharge of official duty. The court sentenced the appellant to imprisonment in the state penitentiary for a term of four years, and from that judgment the appellant prosecutes this appeal.
The record shows that the shooting occurred while a crap game was in progress at Cap Stingley's house about 7:30 p.m., March 1, 1952. At the time the trouble started Gip Evans was seated on his hunkers against the wall only a few feet from the place on the floor where the game was being played. Bud Allen was shooting the dice and the appellant, Matthew Riley, was fading him, each betting a nickel. According to Gip Evans' testimony, the appellant claimed that Gip owed him a nickel. Gip said that he did not owe the appellant a nickel. Gip's account of what happened then is as follows: "Q. Tell the jury what happened. A. He said I owed him a nickel. Q. Who said that? A. Matthew. Q. All right. A. And I says, `No, I don't owe you any nickel,' and he says, `Yes, you do,' and I says, `All right, if you say I owe you a nickel I will pay you,' and I handed him a nickel; and I thought that was all there was to it; and he gets up and I wasn't paying any attention to him. I figured we was all through, and I looked up and K.W. had him by the hand, and I says, `I better get up'; and the gun went off, and I started getting up, and everybody was scrambling to get out of there, and I didn't see the gun no more. I heard a shot and I felt something hit me. He had shot me, and everybody left, and there wasn't nobody there but me."
Five other witnesses testified for the State. All of them, except K.W. Stingley, gave substantially the same account of the shooting as that given by Gip; and Stingley's testimony differed from the testimony of the other witnesses in only a few details. The witnesses testified that when the appellant drew his gun to fire the first time, K.W. Stingley grabbed his arm, and the bullet went up through the top of the house. It was at that time that the other members of the party scurried from the room; and when the second shot was fired there were no other witnesses left in the room. K.W. Stingley testified that, when the trouble started, Gip advanced toward the appellant, and the appellant told him to stop twice, and that the appellant pulled his gun when Gip kept coming toward him. But that part of K.W.'s testimony was contradicted by the testimony of the other witnesses.
Gip admitted that he had been drinking, and the testimony of the other witnesses showed that the appellant had also been drinking, and that both were "pretty full." Gip also admitted that he had a pair of iron knucks in his pocket. But no witness testified that Gip drew the knucks from his pocket, or that he ever attempted to use them. No witness, other than K.W. Stingley, testified that Gip made any movement toward the appellant at any time that might have been construed as a hostile movement.
After the shooting the appellant carried Gip to Durant for medical treatment. The doctor found that the bullet had entered Gip's chest near the heart, and Gip was removed later to the Veterans Hospital in Jackson, where an operation was performed. Gip remained in the Veterans Hospital 87 days.
The appellant offered no testimony on his own behalf, and he did not testify himself.
The appellant's attorneys argue two points on this appeal: (1) That the court should have granted the peremptory instruction requested by the defendant, and (2) that the court erred in refusing to grant three other instructions requested by the defendant.
As to the first point argued by the appellant's attorneys, we think that the testimony was sufficient to prove the charge alleged in the indictment, and that there was no error in the court's refusal to grant the peremptory instruction requested by the defendant.
We also think that the other instructions mentioned above were properly refused. The first of these instructions dealt with the element of reasonable doubt. The court had already granted two instructions, which clearly informed the jury that the burden of proof rested upon the State to prove the defendant's guilt beyond every reasonable doubt. And the instruction which the court refused to grant was properly refused for the reason that (Hn 1) the instruction was uncertain in its meaning, and if granted, would have had a tendency to confuse the jury rather than help the jury in arriving at a proper verdict.
In the second instruction which the court refused to grant, the court was requested to instruct the jury "that if, after hearing all of the evidence in this case, there is a `probability' that the shooting in this case was an accident and that the defendant had no criminal intent at the time of the shooting to harm the said Gip Evans, then in that event it will be your duty to find the defendant not guilty." This instruction was likewise properly refused, for the reason that (Hn 2) there was no proof in the record to support the theory that the shooting was an accident. The appellant, as we have stated, offered no witness on his own behalf; and the testimony of the State witnesses showed clearly that the shooting was not accidental.
The last instruction which the defendant requested and the court refused to grant presented only the abstract question as to whether the defendant, "at the time of the actual shooting, from all the evidence produced, was acting as a reasonable man would have been calculated to act under like circumstances." (Hn 3) The instruction does not embody a statement of the law of self defense, or any other theory that would justify the appellant's action in shooting Gip Evans. There was no proof in the record to show that the defendant at the time he fired the shot that penetrated the body of Gip Evans near the heart was in real or apparent danger of losing his life, or suffering great bodily harm at the hands of Gip Evans, and the instruction was properly refused. Labbous v. State, 195 Miss. 295, 15 So.2d 687.
We find no error in the record and the judgment of the lower court is affirmed.
Affirmed.
Roberds, P.J., and Lee, Ethridge and Lotterhos, JJ., concur.