Combs v. State

• Decision Date: 06 April 1936
• Docket Number: 32095
• Citation: 167 So. 54,175 Miss. 376
• Court: Mississippi Supreme Court
• Parties: COMBS v. STATE

167 So. 54

175 Miss. 376

COMBS v. STATE

No. 32095

Supreme Court of Mississippi

April 6, 1936

(Division B.)

1 HOMICIDE.

Where evidence was conflicting as to whether deceased was running away from defendant or toward defendant with view of renewing attack when defendant fired shot, appellate court would not consider course taken by bullet through deceased's body as so completely conclusive, as matter of proof, that deceased was running toward defendant that court should discharge defendant rather than remand for new trial.

2 HOMICIDE.

When a person guilty of no wrong or provocation is attacked by antagonist with a deadly weapon and instinctively strikes back with a deadly weapon and kills antagonist, offense is mitigated and made manslaughter instead of murder.

3 HOMICIDE.

Conviction of murder was reversed, with directions that defendant be not convicted of any greater offense than manslaughter, where defendant, a constable, shot deceased after deceased had attacked defendant with an axe when defendant was taking possession of deceased's truck under writ of replevin.

Division B

APPEAL from circuit court of Perry county.

HON. JOE W. PACK, Judge.

E. M. Combs was convicted of murder, and he appeals. Reversed and remanded.

Reversed and remanded.

Jeff Collins, of Laurel, for appellant.

We must take into consideration the fact that Combs was a lawful officer in the discharge of his duty, and was at the time he was murderously assaulted by the decedent where he had a right to be under the law and where the law required him to be. No one can say from the evidence in this case that appellant had done anything or said anything that was wrong or insulting to any one up to the time he was thus murderously assaulted by the decedent. No one can say that there was any malice premeditated up until that time. And we assert with equal confidence and without fear of successful introduction that not one man in one hundred, situated as he was, would do differently from what he did. Therefore, since men under the law are by the courts judged under the standard of what a reasonably prudent man would do under the same circumstances, the conclusion that appellant is guilty of no crime is inevitable.

The court should have peremptorily charged the jury that the defendant was not guilty of murder.

Beasley v. State, S So. 234; Kelly v. State. 8 So. 745, 68 Miss. 343; Johnson v. State, 30 So. 39; Rowland v. State, 35 So. 826; Jones v. State, 54 So. 724; Fletcher v. State, 91 So. 338; Winston v. State. 90 So. 177; Case v. State, 17 So. 379; Staiger v. State, 70 So. 690.

Appellant submits that the verdict of the jury was manifestly contrary to the law and the testimony.

The instructions that used the word "deliberate design" were fatally erroneous because they were not qualified by the qualification used in the Hawthorne case, and, by the further necessary qualification here under the facts in this case "unless the killing was done in the heat of passion and upon sudden provocation."

Gamblin v. Slate, 29 So. 764.

The last instruction is to be condemned because it places the burden of proving self-defense upon the defendant, and does not tell the jury that all that is necessary for an acquittal is that they have a reasonable doubt as to the facts.

Waller v. Stale, 44 So. 825; Keith v. Slate, 111 So. 914; McCain v. State, 49 So. 361; Suel v. Derricott, 49 So. 895;

Fantroy v. State, 51 So. 931; Hubbard v. State, 55 So, 614; Glass v. State, 78 So. 819; Ransom v. State, 115 So. 209.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

The facts of the case at bar do not, make the case presented by Beasiey v. State, 8 So. 234, 64 Miss. 518.

Since it is a rule of law in this state that no particular time element is necessary to say whether one acted with malice or not, under the facts of this case which show that the deceased had lost his weapon and was running as best he could to get away from Combs, it was proper to leave it to the jury to say what character of killing it was.

The rule of this court is that when it has found that the verdict or the jury was based upon convincing, competent evidence "regardless of the nature or amount of it," the verdict; will stand, because, under our system, the jury is the sole judge of the matters of credibility and weight of testimony and is the exclusive trier of facts.

Thomas v. State, 129 Miss. 332, 92 So. 225; Felder v. State, 108 Miss. 580, 67 So. 56; St kes v. State, 159 So. 294; Evans v. State, 159 Miss. 561, 132 So. 563.

An instruction complained of tells the jury that if it believes beyond a reasonable doubt that the defendant killed the deceased under the circumstances of this statutory definition, it would be its duty to find him guilty of murder. This would be proper.

Atkinson v. State 137 Miss. 42, 101 So. 490; Brown v. State, 158. So. 339.

Malice may be formed in an instant and no particular time is necessary for malice to come into the transaction.

Williams v. State, 163 Miss. 475, 142 So. 471; Eaton v. State, 163 Miss. 130, 140 So. 729; Motley v. State, 159 So. 553.

The whole instruction must be taken and considered, and not just one part of it.

Arbuckle v. State, 80 Miss. 15, 31 So. 437.

The instruction given the state is complained of which tells the jury, in substance, that threats and insulting words, of themselves, are no defenses to murder. This is a correct pronouncement of the law, and on the facts of this case, particularly applicable.

Lee v. State, 167 Miss. 150, 148 So. 627; Richardson v. State, 123 Miss. 232, 85 So. 186.

In line with what this court has said in Callas v. State, 151 Miss. 361, 118 So. 137; Harwell v. State, 129 Miss. 858, 93 So. 366; Schrader v. State, 84 Miss. 592, 36 So. 385; Lee v. State, 148 So. 627, the state submits that this action of the trial court in overruling the objection to the argument was not erroneous.

Argued orally by Jeff Collins, for appellant, and by W. D. Court, Jr., for the state.

OPINION

Griffith, J.

Appellant was the constable of his district and had in his hands a valid writ of replevin to be levied upon an automobile truck in the possession of the deceased. When the officer went to levy the writ, the deceased demurred and contrived excuses for a delay of the levy, which delay was granted by the officer. During this time the deceased appeared to have become enraged and uttered divers insults and threats directed towards the officer. The latter conducted himself nevertheless with patience and forbearance, making no replies in kind to the insults and threats of the deceased; but finally, the officer came to the realization that temporizing in the matter was accomplishing nothing towards the performance of the duties imposed upon him, and he took possession of the truck.

When the officer got upon the truck and placed himself in the driver's seat, the deceased, who was approaching, shouted to the officer not to touch the truck but this the officer, of course, disregarded. And while the officer was engaged in getting the engine started, the deceased reached the truck on sit right-hand side and seized an axe, which was somewhere in the back of...