O.R. Smith, of Corinth, and Fred B. Smith, of Ripley, for appellant.
Even though the deceased was unarmed, if the evidence without material contradiction shows that the use of a deadly weapon by the appellant reasonably appeared necessary for her protection from death or great bodily harm at the hands of the deceased, then she was entitled to a peremptory instruction.
Cook v. State, 194 Miss. 467 , 12 So.2d 137 ; Henderson v. State (Miss.), 180 So. 89; Code of 1942, Sec. 2218.
Where the defendant or his witnesses make out a case of self-defense, which is not substantially contradicted in material particulars by credible witnesses or physical facts, the defendant is entitled to a peremptory instruction of not guilty.
Jarman v. State, 178 Miss. 103 , 172 So. 869 ; Weathersby v. State, 165 Miss. 207 , 147 So. 481 ; Walters v. State, 153 Miss. 709 , 122 So. 189 ; Strahan v. State, 143 Miss. 519 ,, 94 So. 220.
The modern rule as to homicide in defense of the habitation is that if an assault on a dwelling and an attempted forcible entry are made under such circumstances as to create a reasonable apprehension that it is the design of the assailant to commit a felony or to inflict on the inmates a personal injury which may result in the loss of life or great bodily harm, and the danger that the design will be carried into execution is imminent and present, the lawful occupant of the dwelling may lawfully prevent the entry, even by the taking of the life of the intruder.
Williams v. State, 127 Miss. 851 , 90 So. 705, 96 So. 108, 98 So. 242; Ayers v. State, 60 Miss. 709 ; Maury v. State, 68 Miss. 605 , 9 So. 445; Long v. State, 52 Miss. 23 ; Patty v. State, 126 Miss. 94 , 88 So. 498; Code of 1942, Sec. 2218; 26 Am. Jur. 268-271, Secs. 166, 167.
We are unable to agree that because the law was being violated in the habitation of the appellant, she should be denied the right to defend or protect it from unwarranted intrusions or trespasses as a home. She had lived there practically all of her life, and though her sins may be as scarlet, the law permits her to have a place of abode from which she may exclude all persons not wanted therein, unless they have entered under lawful right granted by the sovereign itself. Moreover, the latter are not authorized to remain therein except for a lawful purpose after being invited to leave.
Bangren v. State, 196 Miss. 887 , 17 So.2d 599 .
The court erred in overruling the defendant's numerous objections to testimony relative to the character of the appellant and the character of the home in which she resided and relative to her conduct and things that transpired in the home.
Cotton v. State (Miss.), 17 So. 372; Webb v. State, 111 Miss. 419 , 71 So. 738; Raines v. State, 81 Miss. 489 , 33 So. 19; Massey v. State (Miss.), 19 So.2d 476; Willoughby
v. State, 154 Miss. 653 , 122 So. 757 ; Collins v. State, 99 Miss. 52 , 54 Miss. 666 ; Dabney v. State, 82 Miss. 252 , 33 So. 973; State v. Raymond, 93 N.J.L. 260 , 21 A. 328.
The court permitted the state to prove by Marlene McKee that the appellant said, after the deceased had left her house the first time: "If that son-of-a-bitch comes back to the house raising trouble I will kill him." The appellant denied making this statement and offered to prove what she did say to Marlene McKee during the absence of the deceased. The state objected to this testimony and the court sustained the objection. We believe this testimony was competent. If Marlene McKee was permitted to testify as to her version of the conversation, and the appellant took the position that her version was incorrect, then certainly she should have been permitted to testify as to what was actually said in the conversation. The appellant's version of the conversation, about which she was not permitted to testify, was that in her conversation with Marlene McKee, while the deceased was away, she did use the words "son-of-a-bitch", and the witness Marlene McKee, in her excited condition and under the influence of whiskey, could have been confused as to just the manner in which the appellant used these words. This was a material part of the sequence of facts in this case, and it was material to the appellant that she be permitted to show just what her language was, so the jury could determine whether she used the language in the manner as testified by the witness Marlene McKee.
The appellant offered to prove that there were other loaded cartridges in her pistol, with which she shot the deceased, and that she made no further effort to shoot him after he released her, when she had shot him one time. The state objected to this testimony and the court sustained the objection and told the jury to disregard it. We believe that this testimony was competent and material to the appellant's defense. The court permitted the state to prove that her house was one of prostitution, etc., on the theory that it showed a motive. We have
never understood how they claimed it showed motive unless it is their position that she became angry at the deceased because of the $3.00 and killed him out of a spirit of anger. Of course, as hereinbefore set forth, every act of the appellant disproved any such theory. But in the face of such a situation the appellant's attorneys should have been permitted to prove that she had a pistol loaded with other cartridges and that she desisted from all effort to shoot the deceased immediately on being released by him, after he was shot the first time. If she was shooting him out of a spirit of anger and retaliation, human nature indicates that she would have continued to shoot as long as there was a bullet in the pistol. The fact that she only shot him one time, that she desisted from all effort to shoot him on being released by him, clearly indicates that she was shooting in self-defense and she made no further effort to harm him after it appeared that her danger at his hands was no longer imminent. Therefore, this testimony was material, it was competent, and the defense of the appellant was prejudiced by the lower court's refusal to permit it. In this connection we would like to say further that this conduct on the part of the appellant clearly indicates that her motive in shooting the deceased was not because of anger aroused by any pecuniary loss on her part.
The evidence in this case reveals that the appellant was guilty of no crime, and that her peremptory instruction should have been granted. But if we are in error as to this, the verdict of the jury is against the overwhelming weight of the testimony, and the court should have sustained the appellant's motion for a new trial. Every material and competent fact in the record points to the justification of the defendant and establishes her right to act in self-defense. It is well settled by the decisions of this Court that where the verdict of the jury is clearly against the great preponderance of the testimony and against the overwhelming weight of the same, it is the duty of the trial judge, upon proper motion being made
therefor, to set the same aside and to grant a new trial.
Justice v. State, 170 Miss. 96 , 154 So. 265 ; Jolly v. State (Miss.), 174 So. 244; Owen v. State, 197 Miss. 561 , 19 So.2d 822 .
If it was not proper to peremptorily instruct the jury for the defendant, and if a manslaughter verdict was proper under the circumstances in this case, it was error to word Instruction No. 1 as it was worded. Under the language of the instruction, the defense of the appellant that she was protecting her dwelling-house and others in it, as well as herself, from a felonious act, was wholly ignored. Subsection (c) of Section 988 of the Code of 1930, makes a killing justifiable not only when done in self-defense, but when committed in resisting any attempt to commit a felony upon him "or upon or in any dwelling-house in which such person shall be." This instruction limited the rights of the appellant solely to self-defense and wholly eliminated from the consideration of the jury her right, given under the law, to protect and defend her dwelling-house. In view of all the facts and circumstances in this case, the instruction limited the defense of the appellant to entirely too narrow a field. The jury should have been told that if the appellant had reason to believe, and did believe, that the deceased was attempting to commit a felony, not only upon her, but upon or in the dwelling-house where she was, that the killing was justified.
Instruction No. 3 was extremely harmful to the appellant; it is not the law in Mississippi that a person cannot act on "needless fears." A person may act, in defense of himself or his dwelling-house, on the reasonable appearance of danger. Frequently appearance may reasonably indicate danger, when in truth and in fact no danger actually existed. Such reasonable appearance of danger might arouse real, genuine and reasonable grounds for apprehension that great bodily harm was about to be done, when in truth and in fact no danger would exist whatever and the fears would be "needless fears." This instruction deprived the appellant of the right to have the
jury view the situation from the circumstances as they reasonably appeared to her at the time of the homicide. It permitted the jury to view the entire circumstances with the calm, accurate judgment which they could then bring to bear on the killing. And regardless of how genuine, reasonable, and well founded the fears of the appellant may have been at the moment of the killing, if the jury could determine, from later developments, that they were "needless fears" then the jury was instructed to disregard them and find the defendant guilty. This is not the law in this state.
Greek L. Rice, Attorney General, by Geo. H. Ethridge,
Assistant Attorney General, for appellee.
On the trial of an indictment a previous crime threatened or committed by defendant can be proved where it is connected with the one charged in the indictment, and sheds light upon the motive of the defendant; or where it forms part of a chain of facts so intimately connected that the whole must be heard in order to interpret its several parts.
Massey v. State (Miss.), 19 So.2d 476; Collier v. State, 106 Miss. 613 , 64 So. 373, 375; Raines v. State, 81 Miss. 489 , 33 So. 19; Dabney v. State, 82 Miss. 252 , 33 So. 973; 22 C.J.S. 1084, Sec. 682; Mississippi Digest, Title "Criminal Law," Key Nos. 365, 369, 371.
Wherever facts are applicable to show motive and intent, or malice, other crimes may be introduced if they hold a legal and logical connection with the issues involved in the case on trial.
King v. State, 123 Miss. 532 , 86 So. 339; Keel v. State, 133 Miss. 160 , 97 So. 521; Barry v. State, 187 Miss. 221 , 192 So. 841 ; Mississippi Digest, Title "Criminal Law," Key No. 371.
When acts constitute a continuous offense, or a continuous transaction, which shed light on the issues involved
in criminal prosecution, they may be admitted in evidence.
Williams v. State, 151 Miss. 82 , 117 So. 360 .
It is the function of the jury to draw deductions from the evidence where it was capable of more than one reasonable theory from which reasonable persons may honestly differ.
Mississippi Cent. R. Co. v. Mason, 51 Miss. 234 ; Mutual Life Ins. Co. v. Savage, 31 F.2d 35 ; Mississippi Digest, Title "Trials," Key No. 142.
Wherever two different reasonable inferences can be drawn from the evidence, it is for the jury to draw the inferences and all facts relevant to other facts in issue may be considered by the jury.
Coleman v. Adair, 75 Miss. 660 , 23 So. 369; Mississippi Digest, Title "Trial," Key Nos. 143, 188, 759.
The weight and sufficiency, or insufficiency, of the evidence is for the jury and before their verdict can be disturbed a court must be able to say beyond all reasonable doubt that the facts are not sufficient, if believed true, to constitute manslaughter.
Mississippi Digest, Title "Criminal Law," Key Nos. 741, 742, Title "Trials," Key No. 142.
The proof in this case shows that it was not in defense of the habitation that the killing occurred, but, if anything, it was either self-defense or manslaughter. The facts in this case bring it under the statute defining manslaughter, but if the Court will examine the numerous instructions given the defendant as shown by the record, the defendant had every possible announcement of law favorable to her that could be deduced from the testimony. Among other things, appellant procured an instruction that she had the right to defend her home, and she had the full benefit of this principle before the jury, although it was not her home she was defending.
The proof offered by the defendant as to what she said to Marlene while appellant was away is self serving and is not admissible in evidence. The appellant denied
emphatically that she made the statement that Marlene attributed to her, or that she used any such language at that time during the period involved. Her sister also testified, contradicting Marlene on her statement as testified to by Marlene McKee, and the appellant had the full benefit of denying what Marlene said she said. It was not permissible for her to use a self serving statement coming from herself and she testified fully to everything relevant to issues involved. No error was committed in this respect. Appellant assigns as error that the court erred in not permitting appellant to testify that there were other cartridges in the pistol which she did not fire. I submit that there is no merit in that contention. The fact that after she fired the fatal shot she did not fire other shots would be wholly irrelevant. The question turns on whether she was justified in firing the shot that did kill the deceased and it is wholly immaterial in this case whether she could fire more shots because no more were needed to effect the death of Wardlow. With reference to the motion for a new trial and overruling thereof, the only question necessary to consider is whether the verdict of the jury was contrary to the overwhelming weight of the evidence. I submit there is no merit in the contention that a new trial should be had on this ground. The evidence strongly proves the guilt of the appellant of an unnecessary and unjustifiable slaying. The preponderance is with the state and it is overwhelming as to guilt of the appellant. It is a case where the court should not undertake to constitute its judgment for that of the jury in the trial court, and if there is enough evidence to convince a reasonable mind clearly and specifically that guilt exists, the court should not grant a new trial.
Instruction No. 3, that "the jury should not give the defendant the benefit of mere timidity or needless fear, if any has been shown by the evidence, but the jury should judge her in the light of circumstances surrounding her at the time of the killing as shown by the evidence and if the jury believe from the evidence beyond a reasonable
doubt that at the time of the killing the defendant as a woman of ordinary reason had no reasonable cause to believe and as a reasonable woman did not believe that Gerald Wardlow was attempting to kill the defendant or to do her great bodily harm, real or apparent, then the defendant had no right to kill Gerald Wardlow," is a correct announcement of legal principles. Mere personal "timidity" is distinguished from "reasonable grounds to believe." A person might be timid, but being timid alone would not justify a person doing an unreasonable act and, especially, one involving taking of life. The expression "needless fear" used in the instruction is played up at great length in appellant's brief, but the expression has been used in instructions in this state time out of mind for a period beyond the memory of living men and, of course, means such fear as would not justify a reasonable man in believing a given thing or situation. Every individual is measured and accountable under the law for exercise of reasonable judgment and intelligence in all of his actions. A fear that would not justify a given action in the law is a needless fear and, of course, being "needless" would not come up to the demand of the law which requires a man to judge in a given situation what a reasonable man would judge when placed in the same situation, and not by what a person would fear without reason. "Needless fear" is synonymous with "unreasonable fear." Instruction No. 1 complained of has been law in this state for many years and I see no ground for criticism of this instruction, especially when it is considered, as it must be, with all of the other instructions in the case, which the law requires to be considered and construed together, one supplementing or modifying or one explaining another, and so long as all of the instructions, taken together, cover the law correctly, there is no ground for complaint.
Argued orally by Fred B. Smith and O.R. Smith, for appellant, and by Geo. H. Ethridge, for appellee.