Ellis v. State, 44687
| Decision Date | 04 March 1968 |
| Docket Number | No. 44687,44687 |
| Parties | Hosey ELLIS v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Stanford Young, Waynesboro, for appellant.
Joe T. Patterson, Atty. Gen., by Guy N. Rogers, Asst. Atty. Gen., Jackson, for appellee.
Hosey Ellis was tried in the Circuit Court of Wayne County on an indictment charging him with the murder of Emory 'Shep' Worsham. He was convicted of manslaughter and sentenced to serve a term of four years in the penitentiary. From that conviction and sentence, he has prosecuted this appeal.
The homicide resulted from a shoot-out between Ellis and Worsham in which Ellis received a shotgun would in the head and Worsham was shot once in the leg with a pistol. Worsham died ten days later from a pulmonary embolism deriving from the wound. The defense interposed by Ellis at the trial was self-defense and it is beyond question that Ellis was shot at by Worsham. A photograph in the record shows that several of the shotgun charges struck Ellis' automobile, and that one such charge blew out the entire back window of the car. Nor is it disputed that Ellis received a head wound from some of the shotgun pellets. It was the theory of the prosecution that, following a fight that afternoon in which Worsham had beat Ellis with a tire iron, breaking a finger and injuring his head and arm, Ellis armed himself and sought out Worsham for the purpose of killing him.
Both men had records of previous homicide convictions and the case, upon the evidence as to which was the aggressor, is close. However, we are unable to say that the evidence was incapable of supporting a finding that Ellis was the aggressor, nor can we say that he was entitled to have the jury peremptorily instructed to find him not guilty.
The prosecution requested and was granted this instruction:
The Court instructs the Jury for the State that the law of self-defense as defined in these instructions does not imply the right of attack. if you believe from the evidence the defendant armed himself with a deadly weapon and sought the deceased with the formed felonious intention of invoking a difficulty with the deceased, or brought on, or voluntarily entered into any difficulty with the deceased with the felonious intient (sic) to kill and murder the deceased, then the defendant cannot invoke the law of self-defense no matter how imminent the peril in which he found himself, unless you further believe from the evidence that the defendant acting in good faith, attempted to abandon the difficulty finally.
The above instruction is substantially the same as that condemned in Tate v. State, 192 So.2d 923 (1966) and Lofton v. State, 79 Miss. 723, 31...
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