Summary
In Talley v. State, 174 Miss. 349, 164 So. 771, the Mississippi Supreme Court held that a person indicted on one offense could not be convicted on another offense.
Summary of this case from Goss v. StateOpinion
No. 32026.
December 9, 1935.
1. INDICTMENT AND INFORMATION.
Person cannot be indicted for one offense and convicted upon evidence of another and different offense.
2. WEAPONS.
Where, in defense of indictment for carrying concealed weapon, defendant proved that he apprehended attack, conviction could not be had on evidence that defendant had exhibited weapon in rude, angry, or threatening manner (Code 1930, sections 853, 855, 860).
APPEAL from the circuit court of Lamar county; HON. HARVEY McGEHEE, Judge.
J.T. Garraway, of Purvis, for appellant.
We submit that no plainer case was ever submitted to an appellate court for reversal than the case at bar, and that the case will be reversed and the appellant discharged.
The appellant was justified in carrying a gun if he had been threatened and had good and sufficient reason to apprehend a serious attack from any enemy and that he did so apprehend.
Section 855, Code of 1930.
The appellant assumed the burden of proof and he and all of his witnesses in the lower court made out a case clear and without any doubt that the appellant had been threatened and had the most natural and reasonable grounds to believe he was in serious danger every moment of his life, at the finding of the indictment and for some time prior thereto and since, yet with all of the proof which was overwhelmingly in favor of appellant and perfectly reasonable and wholly uncontroverted, the jury found appellant guilty, which is unwarranted by the law and facts in this case, and the only hope for appellant rests with this court, and if the same rule applies in this case as is applied in similar cases we have no doubt about a reversal in this case.
Garland v. State, 130 Miss. 310, 94 So. 210; McLeod v. State, 105 So. 757.
The court below erred in granting the state's instruction in which the jury was told to find the defendant guilty if they believed he carried a concealed weapon, and without any further restriction.
Mendin v. State, 33 So. 944.
The appellant could not be guilty of unlawfully carrying the pistol in this case if he had been threatened and apprehended an attack and he did not have to apprehend the attack at any particular time or place and he need not disarm himself when he is so temporarily situated that for the time being he is in no immediate danger.
Harvey v. State, 102 Miss. 544, 59 So. 841; Sullivan v. State, 126 So. 646; Strother v. State, 74 Miss. 447, 21 So. 147.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
That one has been threatened by another with bodily harm does not in itself license the person threatened to carry a weapon wholly or partly concealed. To justify it, he must, in the opinion of the jury, have good and sufficient reason to apprehend an attack, and must be carrying the weapon charged as a precaution against it, and must not carry it at a time or place or under circumstances in which he could not have sufficient reason to apprehend an attack, of all which the jury trying the case is to determine, as a question of fact.
Tipler v. State, 57 Miss. 685; Hurst v. State, 101 Miss. 402, 58 So. 206.
There is, then, no conflict as between the one instruction for the state and those which were given for the defendant. This court has held in innumerable cases that the instructions which were given for the state and the defendant must be construed together and that if, as a whole, they correctly state the law and if there is no irreconcilable conflict between the instructions for the state and the defendant, then there is no error in the instructions.
Williams v. State, 160 Miss. 485, 135 So. 210.
Appellant, according to the evidence in behalf of the state, had an altercation with a neighbor about a fence line, and during this altercation the appellant, in the presence of three or more persons, pulled from his pocket a pistol and exhibited the same in a rude, angry, or threatening manner, not in necessary self-defense; but instead of proceeding against appellant by and under an indictment for that offense under section 860, Code 1930, the appellant was indicted under section 853, Code 1930, for the carrying of a concealed weapon.
To the indictment thus presented, appellant filed a special plea admitting that he was carrying the weapon concealed on the occasion in question, but averring "that he was threatened, and had good and sufficient reason to apprehend a serious attack from any enemy, and that he did so apprehend." Section 855, Code 1930. Under that plea appellant introduced ample proof to show that his said plea of threats and apprehension was good in point of fact, and certainly so in so far as that burden was required to be supported by him under Garland v. State, 130 Miss, 310, 94 So. 210.
The state did not seriously attempt to controvert the said proof made by appellant, but instead of doing so was permitted by the court over the objections of appellant to produce a number of witnesses whose testimony was directed entirely along the line of proving the separate and distinct offense, one not charged in the indictment, that appellant had exhibited the weapon in a rude, angry, or threatening manner, and that he was the aggressor in so doing; and, at the conclusion of the trial, the state obtained an instruction to the effect that if the jury believed beyond a reasonable doubt that on the occasion in question appellant did unlawfully carry a concealed weapon, the jury should convict.
It requires no citation of authority that a person cannot be indicted for one offense and convicted upon evidence of another and a different offense. For fundamental reasons this can no more be done in a criminal case than can a plaintiff in a civil action declare upon one cause and recover judgment upon another and a different cause of action. And as to the theory advanced by the state that the defense of threats and apprehension of serious attack was not good because of the particular occasion, we would call attention to the later holdings of this court that "it is not necessary, in order that one who has been threatened with an attack may be justified in carrying a concealed weapon, that he shall anticipate the attack at a particular time or in a particular place. . . . Nor is it necessary for one who has been threatened and in good faith anticipates an attack to disarm himself whenever . . . he is temporarily so situated that for the time being he is in no immediate danger of an attack." Harvey v. State, 102 Miss. 544, 59 So. 841. See, also, the review of the cases in Sullivan v. State, 156 Miss. 718, 126 So. 646.
Without prolonging the discussion or laying down any qualifications or distinctions in respect to the point last mentioned, we deem it sufficient to recur to the fact that the appellant was indicted under one statute and was prosecuted under another and a different statute; wherefore, his motion to exclude and for a peremptory charge should have been sustained.
Reversed, and appellant discharged.