Gurley v. Tucker

• Decision Date: 28 May 1934
• Docket Number: 31188
• Citation: 170 Miss. 565,155 So. 189
• Court: Mississippi Supreme Court
• Parties: GURLEY et al. v. TUCKER et al

155 So. 189

170 Miss. 565

GURLEY et al. v. TUCKER et al

No. 31188

Supreme Court of Mississippi

May 28, 1934

Division B

1 DEATH.

Instructions that if either of two deceased persons was engaged in murderous attack upon officers, or if officers were in danger from either person, or if there were any overt murderous act towards officers by either of persons, officers were justified in killing either or both, held error under evidence.

2 TRIAL.

In action for wrongful killing by deputy sheriffs, instruction that if one of deceased persons commanded brother to kill officer this was equivalent to overt, continuous, physical act of concerted attack by both, held error as singling out evidence.

3 DEATH.

Necessity or reasonable belief of necessity, is test of justification of killing in attempted arrest, and mere words do not create any such necessity as to the person using the words.

4. TRIAL.

In action for wrongful killing by deputy sheriffs, instruction directing finding for defendants, unless plaintiffs, by preponderance of evidence, established case in manner and form as charged in declaration, held error, especially where declaration contained averments which were not proved, or attempted to be proved, but which jury might have thought material.

HON. THOS, E. PEGRAM, Judge

APPEAL from circuit court of Marshall county HON. THOS. E. PEGRAM, Judge.

Action by Mrs. E. H. Gurley and others against Leslie Tucker and others. From an adverse judgment, plaintiffs appeal. Reversed and remanded.

Reversed and remanded.

Lester G. Fant, Sr. and Jr., of Holly Springs, for appellant.

The plaintiffs were entitled to a peremptory instruction.

The Board of Mississippi Levee Commissioners v. Montgomery, 145 Miss. 578, 110 So. 845; Carrere v. Johnson, 115 So. 196.

The danger must be present, urgent and immediate. It cannot be a past danger, or a danger which may be thought to arise at some future time.

McGehee v. State, 138 Miss. 822, 104 So. 150; Acers v. U.S. 164 U.S. 388, 41 L.Ed. 481; R. C. L., Perm. Supp. 3419; Ransom v. State, 115 So. 208.

The present, urgent danger must be danger of death or great bodily harm. The facts in this case show conclusively that no such danger existed.

Hall v. State, 1 So. 351; Hill v. State, 94 Miss. 391, 49 So. 145; McGehee v. State, 138 Miss. 822; Evans v. State, 44 Miss. 762; Kendrick v. State, 44 Miss. 436; 13 R. C. L. 816.

The right of self-defense may be exercised only against the person threatening death or bodily injury; it does not extend to the killing of an innocent third person.

30 C. J. 75, pars. 253 and 254; State of Mississippi to the Use of Johnston et al. v. Cunningham, 107 Miss. 140, 65 So. 115, 51 L. R. A. (N. S.) 1179; Brown v. Weaver, 76 Miss. 7, 23 So. 388; Kelly v. State, 156 Miss. 535, 126 So. 194.

The verdict was against the overwhelming weight of the evidence.

M. & O. R. R. Co. v. Bennett, 127 Miss. 413, 90 So. 113; Columbus & G. Ry. v. Buford, 116 So. 817.

The court charged the jury for the defendants that if either Lloyd Gurley or Glenn Gurley made a murderous assault upon either of the officers then the killing of Loyd Gurley was justified in law, and the verdict must be for the defendants. Such a patent error of so grave a nature immediately requires reversal of the judgment.

30 C. J. 75, pars. 253 and 254; 13 R. C. L. 816.

Accused is not justified in killing one of such persons where he does not entertain a belief that he is in danger of serious bodily injury or loss of life at the hands of such person.

30 C. J. 75, par. 254; Norris v. State, 42 Tex. Cr., 61 S.W. 493; 13 C. J. 816, par. 121; Evans v. State, 44 Miss. 762; Parker v. State, 55 Miss. 414, 420.

One instruction tells the jury that if there was any dangerous attack made upon an officer that officers are so protected by the law that they may then shoot and shoot to kill, regardless of whether the man they shoot is the attacker or not. The language of the court was "that officers Overton and Tucker acted from such motives in their own or each other's self defense to a dangerous attack, real or apparent, then it is your sworn duty to find for the defendants." The court committed the fatal error of omitting to say that the dangerous attack must be from the person killed.

Hall v. State, 1 So. 351; Hill v. State, 94 Miss. 391; Kendrick v. State, 55 Miss. 436, 447.

Fred B. Smith, of Ripley, for appellees.

Subparagraphs (e) and (f) of section 988 of volume 1 of the Mississippi Code of 1930, defining justifiable homicide, are as follows:

(e) "When committed by any person in resisting any attempt unlawfully to kill said person or to commit any felony upon him, or upon or in any dwelling house where any person shall be; (f) When committed in the lawful defense of one's own person or any other human being where there shall be reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and there shall be imminent danger of such design being accomplished."

If Tucker was attacked by both the Gurleys, then he had a right to defend himself against either or both.

30 Cyc. 75.

Not only have the authorities held that a person has a right, under circumstances making it reasonably apparent that he is in danger of death or great bodily harm at the hands of more than one person, to take the life of either or both of his assailants but they also hold that if he is in a combat with one assailant and another person intercedes as a peacemaker, under such circumstances as reasonably leads the person assailed to believe that he is in danger at the hands of his assailant and the peacemaker, then the killing of the peacemaker is not unlawful.

Johnson v. State, 125 Tenn. 420, Ann. Cas. 1913C, page 263.

An officer charged with the execution of the law, or other public duties, is bound to carry out and perform them, and cannot be required or permitted to retire or retreat when assaulted or opposed, and leave the would-be law breaker to work his will; he must stand and meet force with force, and, if he kills in the necessary performance of his duty, the homicide is justifiable.

13 R. C. L. 826 and 827.

Smith & Smith, of Holly Springs, for appellees.

If any inference favorable to the defendants can be logically drawn from the evidence establishing their defense then it was the province of the jury to decide what inference should be drawn and it was warranted in returning a verdict for the defendants.

Haynes-Walker Lbr. Co. v. Hankins, 141 Miss. 55, 105 So. 858.

The rule in giving a peremptory instruction is that, conceding all the facts to be true which the testimony tends to establish, and drawing all inferences favorable to the other party which may be drawn logically from the testimony, there is no defense made, or nothing to be submitted to the jury.

Gulf, etc., R. Co. v. Prine, 118 Miss. 90, 79 So. 62; New Orleans, etc., R. Co. v. Penton, 135 Miss. 571, 100 So. 521; Lowe v. Mobile, etc., R. Co., 116 So. 601; New Orleans, etc., R. Co. v. Jackson, 140 Miss. 375, 105 So. 770; Yates v. Houston, 141 Miss. 881, 106 So. 110.

It is a principle very generally accepted that an officer having the right to arrest offender, may use such force as is necessary to exact his purpose, and to a great extent, he is made the judge of the decree of force that may be properly exerted.

State v. Dunning, 98 S.E. 530.

The conduct of the deceased and his brother in this case constituted a much greater and more serious and imminent menace to the life of the officer on that occasion than if they had merely resisted arrest, for the whole evidence shows that the men were guilty of a deadly and unprovoked assault upon Deputy Tucker, during which the avowal was then and there made by Lloyd Gurley that it was his purpose to kill him, but if the conduct of the Gurleys on that occasion only amounted to a resistance to arrest and they then adopted the violent and deadly means and force shown by the records to have been employed by them to effect their release, then the officer had a right to use such force as necessary even to injuring or killing them.

3 A. L. R. 1175; U. S. v. Jailer, 2 Abb. (U. S.) 268, Fed. Cas. No. 15,463; North Carolina v. Gosnell, 74 F. 734; Re Laing, 127 F. 213; Birt v. State, 156 Ala. 29, 46 So. 858; Holland v. State, 162 Ala. 5, 50 So. 215; Tarwater v. State, 75 So. 816; Bowman v. Com., 96 Ky. 8, 27 S.W. 215; State v. Fuller, 96 Mo. 666, 9 Am. St. (1897), 142 Mo. 418, 44 S.W. 329; State v. Garrett, 60 N. C. (1 Winst. L.) 144, 84 Am. Dec. 359; Com. v. Max, 8 Phila. 422; Robertson v. Territory, 13 Ariz. 10, 108 P. 217; Fosters' Crown Law, 270; Johnson v. State, 125 Tenn. 420, 143 S.W. 1134, Ann. Cas. 1913C 261.

Where there is a conspiracy and an attack by one conspirator, accused has the right to kill him before all the conspirators have joined in the attack.

Welborn v. State, 78 Tex. Cr. 45, 179 S.W. 1179; 30 C. J. 76, par. 256.

A person who is being forcibly and rapidly attacked cannot be required to retain the presence of mind, calmness, and composure necessary to weigh with nicety the question whether some other means short of taking life will answer the purpose, especially where deceased has previously attacked accused with a deadly weapon and without provocation and has threatened to take the life of accused.

30 C. J., page 67, and page 70, par. 242, and page 79, par. 259; Long v. State, 52 Miss. 23; 3 A. L. R. 1172; Wheat v. Com., 118 S.W. 264, 265.

There was no error in the court's instructions to the jury.

Hitt v. Terry, 92 Miss. 671, 46 So. 829; Crow v. Burgin, 38 So. 625; Hattiesburg v. Beverly, 123 Miss. 759, 86 So. 590.

If all instructions taken together constitute a correct statement of the law applicable to the...