Callas v. State

• Decision Date: 22 October 1928
• Docket Number: 27317
• Citation: 151 Miss. 617,118 So. 447
• Court: Mississippi Supreme Court
• Parties: CALLAS v. STATE. [*]

118 So. 447

151 Miss. 617

CALLAS v. STATE. ^[*]

No. 27317

Supreme Court of Mississippi

October 22, 1928

Division B

1 HOMICIDE. Instruction that threats could, not justify defendant's shooting another in self-defense, unless latter made overt act "toward defendant," held not erroneous.

In prosecution for assault and battery with intent to kill and murder, instruction that threats alone would: not justify defendant in shooting one making threats in self-defense unless at time defendant shot latterv he was making some overt act toward defendant, held not erroneous because of use of words "toward defendant."

2 HOMICIDE. Instruction that defendant shooting in self-defense acted at his peril, and that jury must determine reasonableness of ground on which he acted held not erroneous. In prosecution for assault and battery with intent to kill and murder, instruction stating, among other things that defendant may have had lively apprehension that life was in danger at time of shooting and believed grounds of his apprehension Just and reasonable and yet he acted at his own peril, and stating that jury must determine reasonableness of ground on which he acted at time of shooting, held not erroneous.

3. HOMICIDE Instruction on self-defense, containing statement that defendant must have had reasonable ground, to apprehend design to kill or injure, and that "there was imminent danger of design being accomplished," held not erroneous.

In prosecution for assault and battery with intent to kill, instruction on self-defense, stating, among other things, that defendant must have had reasonable ground to apprehend design on part of person shot to kill defendant or do him bodily harm, and in addition to this that "there was imminent danger of such design being accomplished," held not erroneous, since clause quoted must be considered In connection with other language In instruction.

4. CRIMINAL LAW. In determining if there is reversible error, all instructions must be construed together.

All Instructions granted both parties must be construed together, and when so done, it law is correctly announced, there is no reversible error.

5. CRIMINAL LAW. State's counsel in argument may comment on evidence and deduce inferences therefrom and point out witnesses by name.

It is within province of state's counsel in argument to jury to comment on evidence and deduce inferences therefrom and point out witnesses by name.

6. CRIMINAI LAW. State's counsel's argument that case was malicious, cold-blooded, diabolical attempt to murder, predicated on evidence, held not reversible error.

In prosecution for assault and battery with Intent to kill and murder, argument to Jury by state's counsel that It was case of malicious, premeditated, cold-blooded, diabolical, damnable attempt to assassinate and to murder, predicated on some of evidence for state, held not reversible error.

7. CRIMINAL LAW. Overruling objection to state's counsel's reference in argument to defendant's interest, when referring to his testimony, held not reversible error.

Where special counsel for state, in referring to testimony of defendant, remarked: "What interest has he got, what interest and what motive? He has more interest than any other living person. I don't blame him. If they had M. J. in such a place, I would do it---I might do the same thing," and court over-ruled objections to remarks, there was no reversible error.

8. CRIMINAL LAW. Instruction that in passing on testimony jury could consider witness interest as shown by circumstances shown held not error under evidence.

In prosecution for assault and battery with intent to kill and murder, giving of instruction for state that, in passing on testimony of witnesses, jury could consider interest which witness might feel in result of suit as shown by facts and circumstances growing out of testimony and give testimony only weight to which it was entitled, held not error, where it was shown that some of witnesses for defendant had contributed funds toward employing his counsel and similar instructions were given defendant.

HON. S. F. DAVIS, Judge.

APPEAL from circuit court of Leflore county, HON. S. F. DAVIS, Judge.

Peter N. Callas was convicted of assault and battery with intent to kill and murder, and he appeals. Affirmed.

Judgment affirmed.

Gardner, Odom & Gardner, for appellant.

If the prosecuting witness made a gesture toward his hip pocket, it matters not for what reason, and it matters not whether same was made toward appellant if appellant construed this movement to be an effort on the part of the prosecuting witness to kill him, or do him some great bodily harm, and such conclusion was a reasonable conclusion under the circumstances, then appellant was justified in shooting.

We most earnestly insist that instruction No. 3 granted for the state is fatally erroneous under the facts in this case. This instruction in substance has been under consideration by this court before, in the case of John Stuckey v. State, 104 So. 610. In that case we represented the appellant and insisted most strenuously that the instruction ought to reverse the case. We are fully convinced that in granting such an instruction the state is given an undue advantage over the appellant, and he is virtually deprived of his right under the law to act on reasonable appearances at the hands of his assailant.

The danger was never imminent because it was shown by undisputed evidence that the prosecuting witness was not armed. The instruction tells the jury that appellant had no right to shoot unless the danger was imminent. This absolutely cuts off his right of self-defense, since Giones was unarmed. Spivey v. State, 58 Miss. 858.

The most palpable error in this record is presented by special bill of exceptions, which shows the extent to which the special prosecuting attorney was willing to go in order to obtain a conviction in this case. We believe that his argument when considered in connection with instruction No. 2 granted for the state, will entitle us to a reversal of this cause. See Hempton v. State, 88 Miss. 257, 40 So. 545; Harwell v. State, 93 So. 366; Smith v. State, 105 So. 758, 141 Miss. 772; Section 1651, of Hemingway's Code of 1927; Buckley v. State, 62 Miss. 705; Smith v. State, 90 Miss. 111, 43 So. 465; Piggott v. State, 107 Miss. 552, 56 So. 583; Chatman v. State, 102 Miss. 179, 59 So. 8; Gaines v. State, 48 So. 182.

The attorney-general will probably refer to the cases of Vails v. State, 48 So. 725, and Pool v. State, 56 So. 184, the opinions in both of these cases being rendered by Chief Justice WHITFIELD. In the last case, however, the opinion was rendered as commissioner and affirmed per curtain by the court. In the Vails case, supra, the court declined to reverse because of an instruction calculated to single out the testimony of the accused for the reason that a brother of the accused testified on the trial of the case. We do not think the Vails case, supra, applicable to the case at bar for two reasons, first, there was no witness introduced on the trial of the case at bar who bore any relation to the appellant whatever, by blood or marriage, and in the second place the record in the Vails case does not show that the prosecuting attorney in connection with the instructions argued at length that the testimony of the accused could not be given any credit because of his interest in the result of the trial. The difference in the two cases is manifest.

Again, the state will probably contend on appeal that under the authority announced by the court in the Pool case, supra, that appellant waived the error of the instruction by asking instruction No. 11 granted appellant, which appears at page 152 of the record. This instruction simply told the jury that they were the judges of the weight of the testimony and the credibility of the witnesses, and that they had a right to disregard the testimony of any witness if they believed that such witness has wilfully and corruptly testified falsely. There would be no force in such contention. In the first place, the interest of the witness was not mentioned in instruction No. 11 granted for appellant. In the second place in the Pool case the prosecuting attorney according to the record, did not argue the instructions as did counsel in the case at bar. Each case must stand on its facts, and we submit that under the facts in the case at bar that the Pool case is not in point.

J. A. Lauderdale, Assistant Attorney-General, for the state.

Counsel for appellant argue at length that the testimony in this case is insufficient. However, from their own statement of fact, it is shown that it is sufficient, and they practically admit that it is sufficient, but argue that the state's theory is unreasonable, unbelievable, and impeached by the testimony of the defendant. These, of course, were all questions of fact to be determined by the jury, and they have determined the facts against the defendant and in favor of the state.

The only question at issue was whether or not Giones made an overt act. The testimony of all of the eye-witnesses, except appellant, is to the effect that he did not. As stated before, the facts are questions for the jury, and I do not see how it could have found otherwise in view of the facts that the testimony is overwhelmingly in favor of the state's theory of this case.

If Giones was not making an overt act toward appellant, he had no right to shoot him. If the witness reached his hand to his hip pocket at the time, and under the circumstances, appellant contends that he did, why this certainly was an overt act toward appellant, and unless this overt act was made, then appellant has no defense.

Instruction number three for the state is...