March
1896
FROM
the circuit court of Copiah county HON. J. B. CHRISMAN
Judge.
Frank
Godwin was convicted of assault and battery with intent to
kill one Oscar Carter. The material facts, as shown by the
evidence, are as follows: Godwin and Carter had a quarrel on
Friday night in Crystal Springs, in which mutual insults were
given. On Saturday evening following, Carter, who lived about
two miles from town, came back and made some threats that he
would do Godwin up. These threats were communicated to
Godwin, who armed himself with a pistol. Late in the evening
Godwin was in a barber shop talking to a friend, when Carter
came in at the front door. Godwin was leaving the barber
shop, when he was stopped by Carter, who demanded an apology
for the previous insult. Godwin stated that he was sorry for
what he had said, and offered to leave it to Mr. Pope, the
man to whom Godwin had been talking, to settle the difference
between them. Pope told Carter that Godwin had just been
telling him about their trouble and was anxious to make due
apologies. Mutual apologies were then made, and Carter
offered to shake hands, which Godwin refused. This angered
Carter, and he declared all apologies off and demanded an
apology of Godwin. The barber then requested that they have
no difficulty in his shop, and they went out on the street in
front of the barber shop. Carter again demanded an apology.
Godwin declined to apologize unless Carter would first
retract the insult given him. After some interchange of
words, Carter struck Godwin in the face, staggering him back.
Some of the witnesses stated that Carter immediately threw
his hand on his pistol pocket as if to draw his pistol.
Carter stated that he had his left hand on his hip. Godwin
drew his pistol and shot at Carter three times, one of the
shots taking effect. Some of the witnesses stated that it was
the first shot that struck Carter and he then started to run
and the other two shots were fired as Carter ran off, with
his back to Godwin. Defendant's witnesses stated that all
three shots were in rapid succession, as fast as they could
be fired. Carter testified that, "I had my left side to
him when he shot first, and this shot knocked me around with
my back to him. I had taken but a few steps when the shooting
was all over. It was all done in a minute."
The
court refused all the instructions that were asked by the
defendant, which were as follows:
"1.
If Carter had cursed and abused defendant, and made threats
of serious bodily harm against him, which were communicated
to him, then the defendant had a right to be on his guard
against him, and to arm himself for his protection; and if
from Carter's conduct, it reasonably appeared to
defendant that Carter intended to shoot him, the defendant
was not bound to wait until Carter had drawn his pistol, but
might anticipate him, and kill him, if such killing was
apparently necessary to protect his own life.
"2.
You cannot find defendant guilty of the crime charged here
unless you would find defendant guilty of murder if he had
killed Carter, and was on trial for murder.
"3.
If you believe from the evidence that defendant shot Carter
when he appeared to be in no danger at Carter's hands,
but that such shooting was in the heat of passion, and
without deliberation, you must acquit of the crime charged.
"4.
In order to justify shooting Carter, it is only necessary
that the evidence shall show that, from Carter's conduct
at the time of the shooting, the defendant reasonably
appeared to be in danger of serious bodily harm at his hands;
and, if your minds are in doubt, on the evidence, as to
whether this was so, it is your duty to find a verdict for
the defendant.
"5.
The evidence is insufficient to warrant a conviction if it
simply raises a probability that defendant is guilty, however
strong. It is only when the evidence is sufficient to satisfy
your minds to a moral certainty that he is guilty that you
will be warranted in finding a verdict of guilty.
"6.
You should not try the defendant by the light of after
developed facts, nor should you hold him to the same calm,
deliberate judgment which you are now able to form, but you
should, as nearly as possible, put yourself in his place and
judge of his acts, situated as he was, and confronted as he
was, and remember that he had a perfect right to kill Carter
if appearances reasonably indicated that his own life was in
peril, whether Carter was armed or not.
"7.
If you believe, from the evidence, that it is reasonably
doubtful as to whether or not Carter struck defendant a blow
with his fist and then threw his hand behind him as if to
draw a pistol, and that then defendant shot him because he
reasonably believed his life in peril at Carter's hands,
it is your duty to promptly acquit him.
"9.
If you believe, from the evidence, that Carter, a short time
before the shooting, had threatened violence to the
defendant, of which the defendant was informed, and that he
struck defendant a blow with his fist and threw his hand
behind him as if to draw a pistol, then defendant had a
perfect right to interpret this act of Carter's in the
light of such threats; and, if you believe, under these
circumstances, that defendant reasonably believed his life in
peril, then he was perfectly justifiable in shooting Carter,
even though you may believe Carter was wholly unarmed, and
the defendant was in no real danger at his hands.
"10.
It is wholly immaterial whether Carter was, in fact, armed
with a pistol or not. If he pretended, by his conduct, that
he was, and it reasonably appeared to defendant that he was,
attempting to draw it and shoot him, then he had as much
right to shoot Carter as if Carter had, in fact, had a
pistol, for the law will justify killing a man who tries to
bluff and frighten his adversary by pretending that he has
and is about to draw a pistol and shoot, as certainly as it
does killing one who really has and is about to draw a pistol
and shoot.
"11.
The jury are the sole judges of the facts of the case, and
alone have a right to say from the whole evidence whether the
defendant is guilty or not, and if you believe from the
evidence in the case that the shooting was done at a time
when it appeared to a reasonable man that Godwin's life
or limb was in danger, you must acquit him.
"12.
The burden of proof is upon the state, in order to convict of
the crime charged, to show that the shooting was not only
done deliberately and feloniously and with malice
aforethought, but that it was also done without legal excuse
or justification, and, unless it has made such proof so
clearly on the whole evidence as to remove from your minds
every reasonable doubt, you must acquit of the crime charged.
"13.
Shooting a man with a deadly weapon with intent to kill and
murder, is justifiable under the law when done in necessary
self-defense, and if you believe from the evidence that, at
the moment of the shooting, it reasonably appeared from the
movements and conduct of Carter that Godwin's life or
limb was in serious danger at his hands, you must acquit
him."
The
court gave the following instructions for the state:
"1. The court instructs the jury for the state in this
case that no mere assault with the hand or fist will justify
one for the killing of a human being, and if the jury believe
from the evidence that the witness, Carter, struck defendant
with his fist, and threw his hand behind him, and thereupon
the defendant drew a pistol from his overcoat pocket, and
shot witness, Carter, with intent to kill him, then the
defendant is guilty as charged, and it is your sworn duty to
so find.
"2.
The court instructs the jury for the state in this case that
no mere assault or apparent assault with the fist will
justify the killing of a human being, and, unless the jury
believe from the evidence in this case that the defendant
shot witness, Carter, with intent to kill him when his own
life or limb was in imminent danger, then the defendant is
guilty as charged.
"3.
The court instructs the jury in this case for the state that
if they believe from the evidence in this case that Godwin
shot at Carter with a pistol more than once, and if they
further believe from the testimony that he shot at Carter at
any time with intent to kill him, when his own life or limb
was in no immediate or apparent danger, then the defendant is
guilty as charged, and it is your sworn duty to so find.
"4.
The court instructs the jury for the state in this case that
the use of a deadly weapon is a presumption of malice, and if
the jury believe from the evidence that the defendant made an
assault upon the person of witness, Carter, with a pistol,
which they believe to be a deadly weapon, and shot Carter,
the law presumes an intent to kill him, and, unless Carter
was making some demonstration that was immediately or
apparently dangerous to the life or limb of defendant, then
the defendant is guilty as charged, and it is your duty to so
find.
"5.
The court instructs the jury that in this case they are the
sole judges of the testimony of each and every witness who
has testified in this case, and they have the right, as
jurors in this case, to reject the testimony of any witness
whose testimony they believe to be discreditable and not
worthy of belief.
"6.
The court instructs the jury for the state in this case that
if they believe from the evidence that the defendant armed
himself with a pistol, which he provided for the purpose of
making an attack upon Oscar Carter, and did afterwards meet
Carter, and provoked a difficulty with him, in which he shot
Carter, he is guilty as charged, even though you may believe
from the evidence that Carter struck defenda...
