Brabston v. State

• Decision Date: 24 November 1890
• Citation: Brabston v. State, 68 Miss. 208, 8 So. 326 (Miss. 1890)
• Court: Mississippi Supreme Court
• Parties: W. F. BRABSTON v. THE STATE

8 So. 326

68 Miss. 208

W. F. BRABSTON v. THE STATE

Supreme Court of Mississippi

November 24, 1890

FROM the circuit court of Warren county, HON. RALPH NORTH, Judge.

The appellant, W. F. Brabston, was indicted for the murder of W H. Brabston, and appeals from a conviction of manslaughter. The killing occurred in a pavilion at Newman's Grove, a voting precinct in Warren county, during the progress of a primary election held to select candidates for certain offices. More than a hundred people were at and near the pavilion, and in a situation to see or hear something of what occurred at the time of the killing. There is a vast deal of testimony in the record, and much of it that is conflicting but the leading facts as deduced by the court therefrom are stated in the opinion.

The instructions passed upon by the court are noted in the opinion of the court. The 8th and 9th for the state are as follows:--

"8. The court instructs the jury, that the fact that the defendant saw W. H. Brabston, engaged in a deadly combat with Jas. B. Lanier, would not have warranted him in law, in interfering or taking part in said conflict with a deadly weapon, until he himself was attacked, if in taking such part, the jury believe he, the defendant, was actuated by a motive of malice, hatred or ill-will against the deceased."

"9. The court instructs the jury that should they believe from the evidence that the defendant voluntarily brought on a difficulty or shooting with deceased, and thereby caused other parties to take part in an unlawful affray, and in said affray the deceased was killed, the defendant was guilty of murder, although he may not have fired the fatal shot."

The defendant sought to prove certain statements made by the accused when at the house of Mrs. Goff to the effect that he was himself mortally wounded, and that he had shot deceased in self-defense, and that the latter had fired the first shot. This was excluded by the court, and the defendant excepted.

After the evidence for the defense had been submitted, the state offered evidence to identify the pistol picked up on the floor of the pavilion immediately after the shooting as the one used by deceased. The pistol thus exhibited showed only three chambers discharged, and the effect of this evidence was to contradict the testimony of several witnesses for the defense that more than three shots had been fired by deceased. The accused objected to this evidence when offered because not in rebuttal, but the objection was overruled. Thereupon the defendant offered counter-testimony to show that the pistol was not the one used by deceased, but this was excluded by the court.

In view of the opinion of the court, it is not deemed necessary to set out any further facts or to give the briefs and arguments relative to the points not passed upon by the court.

Reversed and remanded.

Martin Marshall, for appellant.

The sixth instruction for the state was erroneous because of the idea that the shooting must not have been actuated by malice as if one would not be excusable for shooting in order to prevent a felony, merely because he hated the felon. If one exercises a legal right he is not in law a wrong-doer, even though he may have rejoiced at its ill effects on another. Again, the instruction makes accused inexcusable even though the deceased was feloniously attacking Lanier, unless the latter had given no provocation whatever to such an attack. There is no qualification as to the sufficiency of the provocation. If Lanier had given provocation, W. H Brabston's attack, if fatal, would have still been manslaughter, which is a felony, and a bystander in killing the felon to prevent the felony, would not be guilty.

The eighth instruction for the state is erroneous, because it gives undue prominence to the ill-will the accused was supposed to bear to the deceased, making that conclusive of his guilt, and omitting all qualification as to the right of the third person to interfere in defense of another.

The ninth instruction is erroneous for these reasons: (1) There is no evidence that the accused brought on the affray. (2) It excludes the idea of justification because of the defense of Lanier against a felonious assault. (3) It makes defendant liable because he was a volunteer merely, even though the killing may have been done by others, and there is no hint of conspiracy or co-operation between accused and others. By this instruction and the tenth the jury were told that accused was responsible for the act of others, who might have been incited to join in the affray, regardless of his knowledge or consent. It assumes that he expected others to cooperate. Instead of giving the 9th and 10th instructions for the state, the court should have given the 23d and 12th asked for the defendants, which announced a contrary rule.

The accused should have been permitted to introduce evidence of the statements made by him immediately after the killing, if for nothing else, to disprove the state's version of what he said. It is a familiar rule that where part of a statement is proved, the other party is entitled to bring out the whole statement. Roscoe on Crim. Ev. 51; Bowles v. The State, 24 Miss. 456; Scraggs v. The State, 8 S. &amp M. 726; State v. Head, 44 Miss. 751; Russell v. The State, 53 Ib. 79; 1 Greenl. on Ev. §§ 201, 208.

L. W. Magruder, on the same side,

Filed a lengthy written argument, reviewing all the facts in the case, and on the questions of law passed upon the court, making the following points:--

The sixth instruction holds that the danger to Lanier must have been actual, and that he gave no provocation to W. H. Brabston. Defendant was as much entitled to act upon appearances as to danger to Lanier's life as Lanier himself was. The instruction is not cured by any for the defense.

The 10th instruction for the state is directly in the teeth of our statute defining justifiable homicide. It makes an actor in a difficulty which ends in a general affray responsible for the death, regardless of who did the killing. This cannot be, in the absence of conspiracy or the relation of principal and accessory. The doctrine of some of the older authorities cited in Russell on Crimes, 795, and in Beets v. The State, Meigs, 104, is not the law now. It is neither reason, common sense nor justice. See Lusk v. The State, 64 Miss. 845.

In this case it does not even appear that the participants in the affray were divided into two parties. It was a general melee, and the original actors were lost sight of.

Our statute makes manslaughter a felony. Code 1880, § 2878. And our statute further changes the common law that a stranger can do in defense of a man only what he could do in his own defense, so that if both combatants were in the wrong and neither would have the right to slay the other, and the slaying would be manslaughter, a third person under the statute may lawfully interfere to prevent the manslaughter.

R. V. Booth, on the same side.

I submit that the 9th and 10th instructions for the state are palpably erroneous. They assume the existence of a conspiracy between defendant and others in the absence of any proof as to its existence, and hold defendant liable for all the wounding and killing that was done in the affray, whether he actually did it or not. Clearly, unless defendant fired the fatal shot, he ought not to have been convicted, and the instructions for the defense announce this rule and should have been given. Unless the verdict be clearly right under the evidence, a new trial must be granted because of these errors. Garrard v. The State, 50 Miss. 152; Fortinberry v. The State, 55 Ib. 409.

The doctrine announced in Beets v. The State, relied on by appellee, is discussed and shown to be wrong in the cause of Com. v. Campbell, 7 Allen (Mass.), 543.

P. Henry, on the same side.

T. M. Miller, attorney-general, for the state.

The case having been fully presented by my associate counsel, I will confine the argument mainly to the 9th and 10th instructions for the state. The important principle involved in these instructions is, that one may not escape the consequence of a homicide possibly committed by another upon one whom he is in the act of slaying unjustifiably himself. From the evidence, it cannot be said with absolute certainty whether the defendant killed the accused, or whether some one who came to the rescue fired the fatal shot. The theory of appellant is that criminal responsibility for the acts of others cannot extend beyond the case of confederates--those who by preconcert engage to do the particular crime, or engage in some unlawful criminal enterprise, and in furtherance of it some of the party committed a crime.

Necessity forbids the application of a principle so dangerous to society, and which presents so many loopholes for the escape of murderers. Fortunately such is not the law. Beets v. The State, Meigs (Tenn.), 104.

This accords with the authority of Archbold, Hawkins, Hale and Russell, all of which authors announce the rule that if two are fighting, and a third takes the part of one of them and kills the other, this will be manslaughter in the third party and murder or manslaughter in the person whom he assisted, according as the fight was premeditated, or upon a sudden quarrel. See 1 Hale, P. C. 446; 1 Russ. on Cr. 796.

Considering the issue of fact in the case, it is not conceivable that appellant can reasonably complain of these charges, especially since the jury was fully enlightened upon the law of self-defense, as well as upon the right of a third person to interfere to prevent the commission of a felony.

J. M. Gibson, on the same side.

The production by the state, and identification of the pistol owned and used by the deceased, was purely...