Durham v. State
| Decision Date | 15 December 1930 |
| Docket Number | 28858 |
| Citation | 158 Miss. 833,131 So. 422 |
| Court | Mississippi Supreme Court |
| Parties | DURHAM v. STATE |
APPEAL from circuit court of Tishomingo county, HON. C. P. LONG Judge.
Raymond Durham was convicted of murder, and he appeals. Affirmed.
Affirmed.
T. A Clark, of Iuka, for appellant.
The court erred in giving the state the following instruction:
The court instructs the jury that while it is true in this case as in all criminal cases the defendant is presumed to be innocent until he is proven guilty and that this presumption of innocence goes with the defendant throughout the entire trial and until overcome by competent testimony, and that while it is further true that the burden of proof in this case as in all criminal cases is upon the state to satisfy the minds of the guilt of the defendant from the evidence beyond a reasonable doubt, yet the court now says to you that this presumption of innocence which the law throws around the defendant as a shield and safeguard is not intended to shield from punishment any one who is in fact guilty, but is simply a humane provision of the law to guard against the conviction of any innocent person, and the court further says to you positively that if you believe from the evidence in this case beyond a reasonable doubt that the defendant is guilty as charged in the indictment, then it is your sworn duty to say guilty by your verdict, regardless of the presumption of innocence and the further fact that the burden of proof is upon the state.
Appellant contends that this instruction is error, for the reason that the way it is so framed it is an argument from the court to the jury on the presumption of innocence, when no instruction on the presumption of innocence was asked by the appellant.
The court erred in giving following instruction for the state:
The court further charges the jury for the state that if they believe beyond all reasonable doubt from the evidence in this case that the defendant, Raymond Durham, wrongfully had his mind made up prior to the time of the killing to wilfully, feloniously, and maliciously shoot, kill, and murder the deceased, Forrest Russell, and that a short time prior to the killing he went off to his home, armed himself with a deadly weapon for such purpose and returned to the place of the killing, intending to carry out such unlawful purpose so formed in his mind and that, so armed and with such unlawful purpose in his mind and with the purpose of carrying out such intent on his part to wrongfully, wilfully, and maliciously and feloniously kill and murder said deceased, attacked deceased and so killed him and that at no time prior to the time of the actual killing of the deceased abandoned such purpose, then, and in that event, he would not be entitled to set up any act of conduct of the deceased either before or at the time of the killing by way of defense of such killing.
This instruction sought to deprive and take away from the defendant his right of self defense.
Hunt v. State, 72 Miss. 413, 16 So. 753; Lofton v. State, 79 Miss. 732, 31 So. 420; Rogers v. State, 82 Miss. 479, 34 So. 321; Stubblefield v. State, 142 Miss. 787, 107 So. 663.
The court erred in refusing the following instruction:
The court charges the jury for the defendant, that if they believe from the evidence in this case, that a short time before the difficulty, the deceased threatened to kill the defendant, then the defendant had a right under the law to procure a pistol and carry it.
Wm. A. Shipman, Assistant Attorney-General, for the state.
It is sufficient to deprive an accused of the right to invoke the law of self-defense that he procure the weapon for the purpose of using it to kill his adversary or to inflict great bodily harm on him, or to commit any felony.
Ex parte Wray, 30 Miss. 673; Hunt v. State, 72 Miss. 413; Fore v. State, 75 Miss. 727; Long v. State, 52 Miss. 23; Thomas v. State, 61 Miss. 60; Mathews v. State, 108 Miss. 72; Johnson v. State, 140 Miss. 889; Stubblefield v. State, 142 Miss. 787. And the intent is presumed from the use of the weapon. Lamar v. State, 63 Miss. 265; Smith v. State, 1 Miss. Dec. 19; Hathorn v. State, 58 Miss. 778; Lee v. State, 138 Miss. 474; Adams v. State, 136 Miss. 298; Patty v. State, 126 Miss. 94; McGehee v. State, 138 Miss. 822; Carter v. State, 147 Miss. 171.
"The words 'premeditated design' in the old statute meant the same as 'malice aforethought' in the common law definition."
McDaniel v. State, 8 S. & M. 401.
And so does deliberate design in the present statute.
Hathorn v. State, 58 Miss. 778; Dickson v. State, 106 Miss. 697, 64 So. 468.
Appellant was indicted and convicted in the circuit court of Tishomingo county of the murder of Forrest Russell. The jury returned a verdict of guilty, but disagreed as to the punishment. Thereupon, the court sentenced appellant to the penitentiary for life; from which judgment appellant prosecutes this appeal.
Appellant assigns and argues as errors the giving of certain instructions requested by appellee, and the refusal of certain other instructions requested by appellant, and the action of the court in admitting in evidence an alleged confession by appellant, over his objection.
The deceased, Forrest Russell, was aggrieved at appellant, because he claimed that appellant had taken his two daughters out at night to a picture show, and failed to bring them back within a reasonable time. On the evening of October 30, 1928, appellant and the deceased met in the home of Gillis Taylor, where an altercation occurred between them, in which altercation the deceased threatened appellant's life, and the latter threatened the life of deceased. The altercation grew out of the grievance of deceased toward appellant on account of the latter's conduct with reference to the daughters of the former. There was nothing in the evidence to indicate any misconduct on the part of appellant towards the daughters of deceased, except that deceased claimed that appellant took them out at night to a picture show, and failed to bring them back home within a reasonable time. The evidence tended to show that the deceased said to appellant that, if he did not make an explanation of his conduct toward his daughters, he was going to kill him; and that appellant replied that he was going away and get a gun and come back and shoot hell out of deceased. Soon after this altercation both appellant and the deceased left the home of Gillis Taylor, and were gone only a short time. The deceased soon returned to the home of Gillis Taylor, and was in the home, talking to Gillis Taylor and his family; there were some other persons present. Shortly after the deceased returned to the home of Gillis Taylor, appellant returned in his car. The evidence showed that, thereupon, the deceased arose from his seat, and approached the entrance to Taylor's home, at the same time the appellant was approaching the entrance from the outside. Those present in Taylor's home evidently expected a serious difficulty between appellant and the deceased, for, before the shooting began, the ladies present screamed and ran out of the house. Gillis Taylor followed the deceased as he was approaching the door to the residence; and testified that, as deceased was approaching the door, he put one hand in his pocket and the other toward his breast, indicating a purpose to draw a weapon.
Appellant testified that as he approached the door he saw the deceased coming toward him, making a motion as if attempting to draw a weapon; and, thereupon he (the appellant), to save his own life, shot at the deceased four or five times, killing him. Appellant also testified that the object of his mission in returning to the home of Taylor was to see a young lady, or young ladies, who were there. Appellant denied that he went off and got a pistol, but testified that he already had one in his car.
On cross-examination, appellant was asked if he did not state, during the altercation which took place shortly before the killing, that he was going to get a gun and shoot hell out of deceased. He replied that he might have made such a statement, but did not remember whether he did or not.
Shortly before the killing, the deceased tried to borrow a gun from a member of the Taylor family, but failed to get one. It was found, after deceased had been killed, that the only weapon he had on or about his person was brass knucks, which were found in one of his pockets.
The court gave the following instruction for the state, the giving of which appellant assigns as error: "The court instructs the jury that while it is true in this case, as in all criminal cases, the defendant is presumed to be innocent until he is proven guilty and that this presumption of innocence goes with the defendant throughout the entire trial and until overcome by competent...
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Taylor v. State
...felon.10 Other cases also demonstrate this precept. See generally Woods v. State , 183 Miss. 135, 183 So. 508 (1938) ; Durham v. State , 158 Miss. 833, 131 So. 422 (1930), overruled on other grounds by Ray v. State , 381 So. 2d 1032 (Miss. 1980) ; Stubblefield v. State , 142 Miss. 787, 107 ......
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Vance v. State
... ... Stubblefield case would have been good even though it did not ... contain the language above quoted. Virtually the same ... instruction was approved in Tillman v. State, 164 Miss. 100, ... 144 So. 234 ... Lambert ... v. State, 158 So. 139; Durham v. State, 158 Miss ... 833, 131 So. 422 ... That ... such an instruction is a proper instruction, when the ... necessary facts or inferences therefrom are present, see, ... also, Ross v. State, 158 Miss. 827, 131 So. 367; ... Cotton v. State, 135 Miss. 792, 100 So. 383; ... ...
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Hall v. State, 53550
...law. The cases of Lewis v. State, 188 Miss. 410, 195 So. 325 (1940); Woods v. State, 183 Miss. 135, 184 So. 311 (1938); Durham v. State, 158 Miss. 833, 131 So. 422 (1930); Stubblefield v. State, 142 Miss. 787, 107 So. 663 (1926); and Helm v. State, 67 Miss. 562, 7 So. 487 (1890), have also ......
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Lewis v. State
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