Fletcher v. State
| Decision Date | 17 April 1922 |
| Docket Number | 22229 |
| Citation | 129 Miss. 207,91 So. 338 |
| Court | Mississippi Supreme Court |
| Parties | FLETCHER v. STATE |
HOMICIDE. Killing held to amount to no more than manslaughter, where defendant was resisting unlawful act.
Where the deceased, after directing the defendant to do an act undertakes to take from the defendant unlawfully a gun with which the defendant is armed, and in order to secure the gun draws, or attempts to draw, a pistol, and is shot by the defendant in resisting such unlawful act, a conviction of murder will be set aside. At most, such killing will not amount to more than manslaughter.
APPEAL from circuit court of Bolivar county, HON. W. A. ALCORN, JR. Judge.
Lewis Fletcher was convicted of murder, and he appeals. Reversed and remanded, for new trial.
Judgment reversed and cause remanded.
D. E. Beams and J. C. Walker, for appellant.
Instruction No. twelve requested for defendant should have been given, because the state had wholly failed to meet the burden of proving the crime of murder in any of its constituent elements save the mere fact of the killing. Self-defense was the defense interposed by this appellant, and we humbly submit that the defense is amply supported by the testimony of all the witnesses, especially state's witnesses Johnson and Lee, and the physical facts in this case, which are not susceptible of change.
Where there is nothing in the evidence to connect the defendant with the killing except her own testimony, showing she acted in self defense, after being assaulted with a knife, by deceased, which is not contradicted by physical facts, or inconsistent circumstances, but rather corroborated by state's witnesses, the state has failed to prove defendant's guilt beyond a reasonable doubt and refusal of a peremptory instruction was error.
In the case at bar, as in the Houston case, supra, there would be no proof as to the actual firing of the first shot, except for the testimony of the defendant, himself.
Could it be seriously argued, in the light of these facts, that this appellant hadn't the right to protect himself, in the way in which he did? We hardly think so; And finding himself in the predicament that he then found himself, at the disadvantage at which he found himself, wouldn't the last two shots have been justified, even if it had been shown that either, or both of them took effect? To answer these propositions in the negative, would in effect completely wipe out the right of self defense, and say that under no circumstances would a person so threatened, be warranted or justified in resorting to the extremist measure to protect his life. If there was ever a case of justifiable homicide, this is one, and we venture the assertion that if it had been two white men, or two negroes, that this case would never have gone beyond the preliminary stage, and that the survivor would have been declared to have acted within his rights and permitted to go free on the showing made by the state.
In the foregoing view of the case at bar, if it was error to deny the peremptory instruction requested for the defendant, manifestly, it was error to deny the motion of the defendant for a new trial and in rendering the judgment on the verdict.
D. C. Enochs, assistant attorney-general, for the state.
The appellant complains that the trial court erred inrefusing to grant him a peremptory instruction.
There is a great deal of conflict in the testimony in the case as to who was the aggressor, the appellant or the deceased.
The deceased, Mr. T. C. Bullock, the assistant manager, died a violent death, and Mr. Brown, the manager, died a natural death, and therefore the court has not the benefit of the testimony that these two men could have given the court in reference to the settlement between them and the appellant. But it is inescapable, in view of the fact that the appellant went down there on the following morning after his removal, with a shot-gun, that the appellant was on the war path. The appellant offers no explanation as to why he carried the gun. He does not state that he intended to hunt squirrels or birds on the way. And the only purpose for which he carried it, so far as the record discloses, was the use he made of it. He does not state, as an excuse for carrying the gun, that he anticipated trouble with the deceased or any other person if he went back down there, but on the contrary swears that satisfactory and pleasant relations existed between him and the deceased prior to that morning. Indeed, he would have the jury believe that the deceased having the most cordial feelings for him, was attempting to shoot him to death at the time that he shot and killed the deceased. His explanation as to how the difficulty arose which justified him as he contends in the slaying of the deceased, is to my mind unreasonable. It isn't reasonable that the deceased, feeling toward the appellant as the appellant himself swears, would have attempted to shoot the appellant without cause.
I have not undertaken to set out the testimony in this case because it is conflicting, and because in order to properly weigh it, all of it must be read and considered by the court as a whole. And I think that when all the evidence is considered in the case, no error was committed by the trial court in refusing a peremptory instruction in favor of the appellant. It is not shown that the deceased was an overbearing man, and it is sworn to by the appellant himself that there was no illwill existing between him and the deceased. The appellant would have the court believe that the deceased undertook to shoot him without provocation. He does not offer any reason why the deceased would make an attack upon him. He is as silent in reference to any motive on the part of the deceased to make an attack upon him, as he is silent on the motive why he had his gun on the occasion in question. Of course, as I have said, death has sealed the lips of the two managers of the plantation, who could have given the court the facts in reference to the feeling of the appellant toward them in reference to the settlement. But it sufficiently appears that the settlement was not satisfactory to appellant, not only because he carried his gun down there the next morning, but because he refused to go up to the house to see the manager, but demanded if the manager desired to talk to him he would have to come out to where he was. I respectfully submit that the case was one for the jury.
I therefore respectfully submit that the case should be affirmed.
ETHRIDGE, J. SYKES, J., took no part in the decision of this case. SMITH, C. J., dissents.
The appellant was convicted of the murder of T. C. Bullock, sentenced to suffer death, and from said judgment appeals.
The deceased, Bullock, was an assistant manager on the "Neblett" or "Virginia" plantation, said plantation being known by both names. The killing occurred in the latter part of December, 1920. Fletcher had been a tenant upon the premises, and had removed from the premises, the evening before the killing. On the morning of the killing he had gone back to the place where the manager lived, near which was a blacksmith shop. At the blacksmith shop he met Mr. Bullock, and some conversation occurred, in which Mr. Bullock asked Fletcher where Fletcher's wife was, and he told him that he had moved her to her uncle's as he told him he was going to do. Mr. Bullock asked the defendant to go to the house and see Mr. Brown, the manager. According to the state's witnesses, Fletcher replied that he would not go to the house, and, if Mr. Brown wanted to see him, that he would have to come out there. Bullock directed him to go on to the house, which the defendant refused to do. The defendant rode up to a boy named Shed Lee, and asked him for the makings of a cigarette.
The main state witness turned away, and was doing some work in the shop when he heard Mr. Bullock say, "Give me that gun," and almost immediately heard shooting. He then ran out, and saw the deceased running away from the defendant, and the defendant shooting at him. The deceased ran about 120 feet, and fell, and when he fell had his pistol in his right hand. In the first part of his testimony this witness said that he heard no shooting except the shotgun, but on cross-examination stated that he heard a pistol shot, and that he could tell the difference between the pistol shot and the gunshot. After Bullock fell the defendant ran away, and was captured in Texas, and returned without requisition to Mississippi for trial.
The witness Lee was an eyewitness, but seemed to have been badly frightened. He said that he saw Mr. Bullock approach towards where the defendant was sitting on his mule, the defendant having a shotgun resting on his thigh, the gun standing up, and had his arm around the gun, rolling a cigarette. That Mr. Bullock had his right hand in his coat pocket, and with his left hand reached up and demanded of the defendant that he give him his gun. The defendant fell from the mule, and fired at the deceased, Bullock. This witness could not state whether he heard a pistol shot or not, but claims to have seen the transaction until the shooting ceased, when he ran away. He said at the time of the shooting he could not see Mr. Bullock's hand, and could not say whether Bullock shot, or, if he shot, whether he shot first or whether the defendant shot first.
The mule on which the defendant was sitting was shot through the neck with a pistol bullet. The bullet entered the mule's neck about halfway between the head and shoulders, and ranged upward and in the direction of the body of the mule, and made...
To continue reading
Request your trial
-
Franklin v. State
...Cryer v. State, 71 Miss. 467, 14 So. 261; Strickland v. State, 81 Miss. 134, 32 So. 921; Stenson v. State, 80 So. 506; Fletcher v. State, 129 Miss. 207, 91 So. 338; Bergman v. State, 133 So. 208; Jones State, 170 Miss. 581, 155 So. 430; Walker v. State, 189 So. 804. The verdict of the jury ......
-
Shinall v. State, 44352
...Williams v. State, 120 Miss. 604, 82 So. 318, 84 So. 8 (1919); Williams v. State, 127 Miss. 851, 90 So. 705 (1922); Fletcher v. State, 129 Miss. 207, 91 So. 338 (1922); Walker v. State, 188 Miss. 177, 189 So. 804 (1939); Cutrer v. State, 207 Miss. 806, 43 So.2d 385 (Miss.1949); Coleman v. S......
-
Combs v. State
...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 State. 90 So. 177; Case v. State, 17 So. 379; Staiger v. State, 70 So. 690. Appellant submits that the verdict of the jury w......
-
Maddox v. State
...Williams v. State, 90 So. 705, 127 Miss. 851; Burgman v. State, 133 So. 208; William v. State, 120 Miss. 604, 82 So. 318; Fletcher v. State, 129 Miss. 207, 91 So. 338. verdict is against the overwhelming weight of the evidence. McCrory v. State, 25 So. 671; McNeil v. State, 76 So. 625, 115 ......