Cochran v. State
| Decision Date | 28 May 1973 |
| Docket Number | No. 47235,47235 |
| Citation | 278 So.2d 451 |
| Parties | Rayvon COCHRAN v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Harry L. Kelley, Jackson, Stanford Young, Waynesboro, for appellant.
A. F. Summer, Atty. Gen., by Wayne Snuggs, Special Asst. Atty. Gen., Jackson, for appellee.
Appellant, Rayvon Cochran, was convicted in the Circuit Court of Wayne County, Mississippi, for the murder of Irvin Palmer and sentenced to life imprisonment in the Mississippi State Penitentiary. This conviction was reversed in Cochran v. State, 244 So.2d 22 (Miss.1971), and upon retrial appellant was convicted of manslaughter and sentenced to serve a term of 16 years in the Mississippi State Penitentiary, less credit for the time spent in jail awating trial. From this last conviction, appellant perfects his appeal and assigns as error the following:
(1) The Court erred in refusing defendant's requested instruction number 2.
(2) The Court erred in refusing a preemptory (sic) instruction for appellant.
(3) The Court erred in not granting a new trial as the verdict of the jury was against the over-whelming (sic) weight of the evidence.
In support of his first assignment of error, appellant argues that, since Palmer, the deceased, was younger and stronger than he, he was entitled to the following instruction:
The court instructs the jury for the defendant, Rayvon Cochran, that if you believe from a preponderance of the evidence that the deceased, Irvin Palmer, was much larger and stronger man than the defendant, and was capable of inflicting great and serious bodily harm upon the defendant with his hands or with either, and that the defendant had reason to believe and did believe as a man of ordinary reason that he was then and there in danger of such harm at the hands of the deceased and used a knife with which Rayvon Cochran fatally cut the deceased to protect himself from such harm then the defendant was justified and your verdict will be 'Not guilty'.
At the time of the homicide appellant weighed 140 pounds, had lost the use of his right hand, and was 43 years of age; the deceased was 23 years of age, weighed approximately 220 pounds and was in good health, but appellant did not claim that deceased threatened to given him a physical beating with his hands and feet, but was defending himself against an attack by Palmer who was armed with a deadly weapon, a knife, and that he received a cut on his leg as a result of the attack by Palmer. Under this testimony appellant was granted the following instructions:
JURY INSTRUCTION #8
The Court instructs the jury for the defendant that the law is that a man assaulted, or about to be assaulted, with a deadly weapon is not required by the law to wait until his adversary is on equal terms with him, but may rightfully anticipate his action and kill him, when to strike in anticipation reasonably appeared to be necessary to self-defense; and, unless the jury are satisfied to a moral certainty and beyond every reasonable doubt that the deceased, at the time of the killing, was not attempting to draw or use a knofe, (sic) then they must find the defendant not guilty.
Teh (sic) Court instructs the jury for the defendant the right of self-defense is one of our inalienable rights. Any person assaulted by another has the right to repel the assault with such force as may to him be apparently and reasonably necessary. He should be judged in the light of the surrounding circumstances then apparent to him, rather than in the light of after developed facts.
If you believe from the evidence in this case that the defendant was not the aggressor, and that he was assaulted with threats and physical force by Irvin Palmer, then the law of self-defense is that the defendant then and there had the right to repel such threats and assaults by using all such force as to him was then reasonably and apparently necessary to repel such assault on him and defend himself. If no greater force was under such circumstances then used by defendant, it is your duty to find the defendant not guilty.
Appellant's instruction number 8 presented to the jury his defense that he was repelling an attack by an armed man and instruction number 10 stated his right of self-defense. Instruction number 2 was properly refused under the facts in this case because appellant's defense was that he was being attacked by an armed aggressor. Under such claim, an instruction based on disparity of size and physical condition has no application.
Appellant contends by his...
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Johnson v. State
...there is enough evidence to support a verdict.... The law regarding peremptory instructions in Mississippi is stated in Cochran v. State, 278 So.2d 451, 453 (Miss.1973): The rule in regard to a peremptory instruction is the same in criminal and civil cases, the rule being that when all the ......
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Clemons v. State, DP-83
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