Cunningham v. State

• Decision Date: 18 December 1905
• Citation: 87 Miss. 417,39 So. 531
• Court: Mississippi Supreme Court
• Parties: DOUGLASS CUNNINGHAM v. STATE OF MISSISSIPPI

39 So. 531

87 Miss. 417

DOUGLASS CUNNINGHAM v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

December 18, 1905

FROM the circuit court of Lee county, HON. JOHN QUITMAN ROBBINS Special Judge.

Cunningham the appellant, was indicted and tried for and convicted of an assault with intent to kill and murder one John Hoyle, and appealed to the supreme court.

The case was this: John Hoyle, armed with a stick, was pursuing appellant with the intention of giving him a whipping. After running some distance, appellant, who had a shotgun in his hand, turned and drew it as if to shoot. Hoyle thereupon jumped behind a wagon loaded with cotton, when appellant fired two shots and ran away. The trial court gave the following instruction for the state:

"No 1. The court charges the jury that force may be used to resist force proportionate to the attack made; and although the jury may believe, from the evidence, that Hoyle made an unwarranted attack upon defendant with a stick, yet this did not of itself justify defendant in shooting at Hoyle with a gun or deadly weapon, unless the jury believe from the evidence, or have a reasonable doubt thereof, that the stick in Hoyle's hands was a deadly weapon."

Reversed and remanded.

Anderson & Long, for appellant.

All of the testimony is substantially to the effect that Hoyle jumped out of his buggy after a short conversation with appellant and grabbed a good-sized stick--about the size and length of a buggy whip--and ran appellant about one hundred yards before appellant, who had a gun in his hand all the time, attempted to defend himself in any way.

Had he actually shot and killed Hoyle, the most he could possibly have been guilty of would have been manslaughter. The most he could be guilty of under this indictment and proof would be an assault with intent to commit manslaughter, as held in Eaverson v. State, 73 Miss. 810 (s.c., 19 So. 715). The testimony shows that appellant did not intend to kill Hoyle, or even to injure him.

When the first shot was fired, Hoyle was behind the wagon. Appellant drew his gun, but made no attempt whatever to shoot him, but waited to fire until Hoyle was behind the wagon, and did not shoot to hit him at either shot, and could not have shot him, because the wagon of cotton seed was between them. Lott v. State, 83 Miss. 609 (s.c., 36 So. 11).

The first instruction for the state is clearly wrong, as it virtually requires appellant, at the time when Hoyle was running him with a stick to give him a whipping, to keep on running; or,...