Garner v. State

• Decision Date: 02 November 1908
• Docket Number: 13,537
• Citation: 47 So. 500,93 Miss. 843
• Court: Mississippi Supreme Court
• Parties: JAPHUS H. GARNER v. STATE OF MISSISSIPPI

47 So. 500

93 Miss. 843

JAPHUS H. GARNER v. STATE OF MISSISSIPPI

No. 13,537

Supreme Court of Mississippi

November 2, 1908

FROM the circuit court of Jefferson Davis county, HON. ROBERT L BULLARD, Judge.

Garner appellant, was indicted and tried for an assault and battery with intent to murder one, Clark, was convicted and sentenced to the penitentiary for two years, and appealed to the supreme court.

Appellant and Clark had a fight near the railroad depot in the village of White Sand. Upon the separation of the combatants the appellant, with a threat to kill Clark, went to his home, a few hundred yards away, secured a gun and came back with it to the scene of the difficulty. While appellant was looking into the depot passenger waiting room and calling for Clark the latter appeared and fired on appellant, but without effect. Appellant immediately shot Clark, wounding him. On the trial of appellant the state was granted the following its only, instruction:

"(1) The court instructs the jury, for the state, that if they believe from the evidence in this case beyond all reasonable doubt that, after the first difficulty between Clark and defendant was over, the defendant armed himself with a deadly weapon for the purpose of killing Clark, and then sought and hunted Clark for the purpose of killing him, and that on finding Clark he shot him with the deadly weapon, intending to kill and murder him, then the defendant is guilty as charged in the indictment, even though you believe from the evidence that Clark shot Garner first."

The court below also modified an instruction asked by the defendant, the modification consisting of adding, at the end thereof the words printed in italics:

"(4) The court instructs the jury that danger should apparently be imminent, yet it is not essential that it should be immediate and impending at the very moment of the shooting; so that even though you may believe from the evidence in this case that the danger to defendant was only apparent, and not imminent, yet if it appear to you that the danger was apparent to defendant at the time of the shooting, then you must find the defendant not guilty, provided you believe that the shooting was not done in pursuance of his original intention to kill, if such ever existed, but shot because he was then in danger of losing his own life, without fault in himself in bringing on the difficulty."

Reversed and remanded.

Livingston & Cowart, for appellant.

The state asked for only one instruction, and the granting of it constituted error. The instruction fails to state that to constitute a criminal act the shooting must have been done in pursuance of appellant's previous intent to kill, if any such intent existed. It positively states that if the jury should find that the appellant armed himself with a deadly weapon for the purpose of killing Clark, etc., then appellant is guilty as charged, even though Clark shot appellant first. Instructions similar to this have repeatedly been condemned. Lofton v. State, 79 Miss. 723, 31 So. 420; Herring v. State, 87 Miss. 628, 40 So. 230; Cooper v. State, 80 Miss. 175, 31 So. 579; Pulpus v. State, 82 Miss. 548, 34 So. 2; Jones v. State, 84 Miss. 194, 36 So. 243.

It was also reversible error for the court below to modify the fourth instruction asked by appellant, by adding the clause "without fault in himself in bringing on the difficulty." The instruction should have been granted, as asked, without such additional clause. If the shooting was done by appellant, not in pursuance of his original intention, but because, when he shot, he was actually in danger of...