Opinion
No. 29833.
February 29, 1932.
1. HOMICIDE.
Where there was no evidence of physical combat before defendant shot deceased while several feet distant, evidence of deceased's physical superiority was properly excluded.
2. HOMICIDE.
Where there was no evidence of physical combat before defendant shot deceased while several feet distant, court properly refused instruction that defendant had right to use weapon, if blows threatened great bodily harm.
APPEAL from circuit court of Lowndes county. HON. J.I. STURDIVANT, Judge.
Wm. P. Stribling, of Columbus, for appellant.
It is admitted by appellee that the deceased at the time of the difficulty came to the appellant's home in an angry mood and cursed appellant and that the shooting took place in appellant's yard and that the deceased was a younger man and a stronger man than the appellant.
Evidence is admissible on the trial of a party charged with murder, to show the deceased was a stronger man than the defendant and that the defendant was unable to combat with the deceased in a difficulty.
Moore v. State, 110 So. 216; Long v. State, 52 Miss. 23; Bang v. State, 60 Miss. 571.
Apparent and eminent danger need not be essential, that it be immediate and impending, to justify the killing.
Cotton v. State, 31 Miss. 504; Fortenberry v. State, 55 Miss. 403; Kendrick v. State, 55 Miss. 436.
It is a well-approved doctrine in this state that where, upon the evidence, there is a probability of the prisoner's innocence, there must be a reasonable doubt of his guilt.
Evans v. State, 44 Miss. 762; Holly v. State, 55 Miss. 424; Melms v. State, 58 Miss. 362; Mixon v. State, 55 Miss. 525; Browning v. State, 30 Miss. 656.
Appellant had a right to take the life of his adversary where the defendant had a right to be at the time and was not the provoker or aggressor in the combat.
Ayers v. State, 60 Miss. 709; Bang v. State, 60 Miss. 571; Craven v. State, 111 So. 767, 22 Ala. App. 39; Naughter v. State, 17 So. 24, 105 Ala. 26; 25 A.L.R. 547.
A new trial will be granted if there is a palpable failure of proof to warrant the verdict.
Bryant v. State, 65 Miss. 435; Fullward v. State, 67 Miss. 554; Puckett v. State, 71 Miss. 192.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
The case of Moore v. State, 110 So. 216, 144 Miss. 649, involves a question not presented in this case. In that case the deceased was engaged in a physical combat with the appellant, and the evidence showed that he was administering a severe beating to appellant and it, therefore, became necessary to show the comparative strength and size of the two principals in order to determine whether or not appellant was justified in using a deadly weapon to protect himself from death or great bodily harm. Not so in this case where the evidence shows that the appellant has attempted to justify his slaying of the deceased on the ground that he was coming on him with a deadly weapon, to-wit, a knife.
The law in reference to repulsing an assault is well stated in the case of Ayers v. State, 60 Miss. 713, 714.
Whether a particular state of facts constitutes what the law denominates apparent danger, which primarily is a mixed question of law and of fact, must ever be a question of law when the facts are definitely settled. A party slaying another, under apparent danger to himself, must of course, judge for himself in the first instance, but at his own peril if his judgment be not concurred in by the court and jury who sit afterwards upon his act.
Long v. State, 52 Miss. 36.
Moore v. State, 144 Miss. 649, 110 So. 216, and other decisions of this court along the same line, have no application to this case. Those cases apply alone where there is a physical combat between the accused and the deceased. The "hands and feet doctrine" has no place in this case. In the present case, there was no evidence whatever to show a physical combat between appellant and the deceased immediately before the homicide. Appellant shot the deceased at a time when they were several feet apart. The evidence showed that fact without any conflict whatever. The court, therefore, committed no error in ruling out evidence offered by appellant to show that the deceased was a more powerful man physically than appellant, and in refusing the instructions requested by appellant, invoking the principle laid down in Moore v. State, supra, and other cases along that line.
The instructions granted appellant presented every conceivable phase of the case favorable to him, and the instructions for the state and the appellant, taken together, fully and clearly embodied the governing law of the case. Appellant's refused instructions were either a repetition of the instructions already given by the court or embodied erroneous or inapplicable legal principles.
We are unable to find any substantial error committed by the court in the trial of this cause.
Affirmed.