Earhart v. State

• Decision Date: 10 March 1890
• Court: Mississippi Supreme Court
• Parties: JOHN D. EARHART v. THE STATE

7 So. 347

67 Miss. 325

JOHN D. EARHART v. THE STATE

Supreme Court of Mississippi

March 10, 1890

FROM the circuit court of Adams county, HON. RALPH NORTH, Judge.

On April 19, 1889, appellant was indicted for carrying concealed a pistol in February, 1889, and he was tried and convicted. On the trial he admitted that he carried the pistol, but claimed that he was justified in so doing. With this admission, the state closed. Thereupon the defendant introduced one David McClure, who testified that in the latter part of January he had a conversation with one William Tuttle, who was angry, and who stated that the defendant Earhart, "was a sneak, and that he, Tuttle, would get him yet;" that he, witness, on the same day informed the defendant of what Tuttle had said. Counsel for defendant then asked the witness what else Tuttle said to him about defendant on that occasion. Objection being made, the court refused to allow this question to be answered. Witness was then asked if he had not told Earhart to arm himself, because Tuttle was very angry with him, and he answered yes; but this was excluded by the court. Counsel for defendant then asked witness whether or not, from his knowledge of Tuttle's character, he, Tuttle, would carry out any threat he might make. To this question the court sustained an objection. This was all the evidence. Defendant excepted to the action of the court in excluding his testimony.

The following instruction was given to the jury at the instance of the state: "The court instructs the jury that words testified to by the witness in justification of carrying the pistol are not sufficient to authorize the defendant in carrying a pistol, and they will find the defendant guilty as charged."

A motion for a new trial was overruled and defendant appealed.

Reversed and remanded.

Claude Pintard and Frank K. Winchester, for appellant.

1. If appellant honestly believed that his life was in danger or that he was in danger of great bodily harm from the prosecutor, Tuttle, he was justified in the act complained of. This being true, he had the right to prove the threats made and all that Tuttle said.

2. The court erred in the interpretation of § 2985 of the code as amended by the act of 1888. This court will not attribute to the legislature a frivolous intention in the effort to amend the code. We protest against the unreasonable and jocular construction placed upon the amendment by the learned judge of the circuit court.

3. In any view of the statute, the charge is erroneous, as it is an instruction on the weight of the evidence. In effect, the court told the jury that what McClure testified to was no threat. This should have been left to the jury.

T. M Miller, attorney-general, for the state.

The...