Maury v. State

Mississippi Supreme Court April 15, 1891

Maury v. State, 68 Miss. 605 (Miss. 1891)

Campbell

Opinion of the Court

Campbell, J.,

delivered the opinion of the court.

It is inconceivable that the crime of murder is predicable of the facts disclosed by the evidence in this case. The time, and place *608and tbe circumstances of the killing forbid any such conclusion as a verdict of guilty of murder. If the killing by the accused was not justifiable, as being in self-defense, it was no more than manslaughter, unless it could be believed that it (the killing) was referable not to resistance of the illegal arrest, but to malice, and there seems to be little ground for that. It is not claimed that the accused had committed a felony. There was no affidavit or indictment or warrant against him, even for a misdemeanor; and when, on that Sunday, he learned, as he must have done from its publicity, that the friends of the man with whom he had a fight the Thursday night preceding, were being collected for a nocturnal visit to his home, it was quite natural for him, and was his right, to collect his friends, and prepare to defend his home and person according to the exigency; and when twelve men, including his adversary in the fight of Thursday, armed with guns and pistols, at or after the hour of 10 o’clock at night, hurriedly advanced into his yard, calling for him, but without any authority to arrest him, and not professing to have, making no announcement of what they wanted him for, and he or his friends fired into the assailing party, and killed some of them, it was not murder. Wharton on Homicide, § 227. The wonder is that the jury so found, and in view of the instructions for the defendant, it is difficult to account for the verdict except upon the assumption of misunderstanding by the jury of the law of the case, or want of sufficient time for deliberation. The fifth instruction for the state had no application to the caseras made by evidence, and was probably asked and given inadvertently, for there was no hint of any felony having been committed; and it is probable that harm was done by this instruction. It is also probable that the tenth instruction for the state misled. In view of this, and the facts attending the homicide, and the short time allowed the jury for deliberation, we are constrained to reverse the judgment, and grant a new trial.

Reversed and remanded.

Reference

Full Case Name: George Maury v. State
Cited By: 3 cases
Status: Published
Syllabus: 1. Homicide. Malice. Resisting unlawful attack. Evidence. Twelve men armed with guns and pistols rode at night to the home and into the yard of defendant, hy whom one of them had been beaten in a fight a few days before. They called for him, and in searching the premises broke open the smoke-house. Some one in or near a cotton-house cried “ here he is,” and a movement being made towards it, defendant with several friends, from their hiding place in the cotton-house, opened fire on the party, killing two. The purpose of the visit was afterwards avowed to be his arrest, but no charge had been made or warrant procured. Held, malice cannot be predicated upon such facts, and a conviction of defendant for murder will be reversed. 2. Same. Instruction; not applicable. The evidence not having disclosed that defendant had committed a felony, an instruction announcing the right of a private person to arrest a felon, with or without a warrant, was inapplicable and therefore erroneous. 3. Jdbt. Time for deliberation. Case in judgment. Where a jury in a murder case retired at 10.30 o’clock Saturday night, and at 11.30 asked the judge how long they would have to return a verdict, and the judge sent them word that court would adjourn at 12 o’clock, and they at once returned a verdict of guilty, the time for deliberation was insufficient.