Hall v. State

• Citation: 91 So. 397,128 Miss. 641
• Decision Date: 01 March 1922
• Docket Number: 21899
• Court: Mississippi Supreme Court
• Parties: HALL v. STATE

91 So. 397

128 Miss. 641

HALL v. STATE

No. 21899

Supreme Court of Mississippi

March 1, 1922

APPEAL from circuit court of Tallahatchie county, HON. JNO. W. KYLE Judge.

Arrie Hall was convicted of manslaughter, and he appeals. Affirmed.

Judgment affirmed.

Hays Stingley & Whitten, for appellant.

We insist that the defendant could not have been convicted of any crime on this testimony of the state, but admitting that a verdict of some sort would stand on this testimony, then we have the emphatic and undisputed testimony of the real eye-witnesses to the shooting. There is nothing in the record to contradict it in any sort of way. If this testimony be true, then the defendant acted in self-defense.

"If all the testimony in this case, whether introduced by the state or the defendant, leaves the question of the defendant's guilt in reasonable doubt, a judgment of conviction cannot be upheld. This, as we see it, is a case that now confronts us. The account which the defendant gave is not upon its face an unreasonable story. He is the only eye-witness testifying. His testimony, unless materially contradicted by the physical facts, should not be utterly ignored." Houston v. State, 117 Miss. 311; Patty v. State, 88 So. 498 (Miss. No. 21809).

The defendant certainly had a right to defend himself and his home. Under the law he did not have to give one inch. When attacked he had a right to shoot and to shoot to kill wherever in the course of the unfortunate occurrence his bullet happened to hit.

But they argued in the court below and we assume they will argue here, men do not shoot at the back of others in self-defense. We believe our court has held that under certain circumstances one can shoot another in the back in self-defense. However, in this case, the defendant certainly could not be guilty of manslaughter, having shot another in the back. That crime would be murder, and the jury has found the defendant not guilty of murder. The affirmative testimony for the defendant shows that being about to be assaulted with a pistol, the defendant began to shoot a Winchester rifle. The court no doubt will take judicial notice that Winchester rifles are rapid firing guns. Then the reasonable presumption is, since there is no question that the first shot fired hit the dead man in front, that beginning to fire in self-defense, the defendant fired rapidly and before he realized or knew his assailant's back was turned, so fired as to hit his assailant in the back. We doubt that any human being could tell how it happened, whether it was by reason of the dodging of the mule or of the dodging of Mose. Certainly there is no evidence that the defendant meant to shoot in the back. The affirmative and undisputed testimony going to show that he meant to shoot in self-defense believing himself to be in great danger of bodily harm, and we believe that any man so circumstanced as the defendant then was would have thought and would have acted as the defendant did.

They say again, that there was a jury question and the jury determined the evidence against the accused. We submit that the jury did not determine any case which had been properly submitted on the testimony before the court against the accused. That the only question they did determine which was properly submitted, that is, whether the defendant was guilty of murder, they determined in favor of the accused.

The next thing of which the defendant complains is the giving of the manslaughter instruction. There are two serious objections to this instruction. In the first place it instructs the jury to convict of manslaughter on a simple belief that the defendant shot in the sudden heat of passion, without any regard to the requirements of law that the jury must be convinced beyond a reasonable doubt of the defendant's guilt before it can convict of a crime. In the next place, there was no testimony of any sort upon which a manslaughter instruction could be based.

The instruction was erroneous and the case ought to be reversed because of the failure of the court to properly instruct the jury as to the degree of proof required. It is error to instruct a jury to convict the accused if they believe certain facts without charging that such belief should exclude every reasonable doubt. Godwin v. State, 73 Miss. 873. In the next place, there was no testimony upon which a manslaughter instruction could be founded. Cook v. State, 85 Miss. 738.

In a recent case in which the facts introduced by the state showed a cold-blooded murder and those introduced by the defendant showed an accident, and in which there was an acquittal of murder and conviction of manslaughter, the court said: "Under the testimony for the state the appellant was guilty of murder. Under that for appellant he was guilty of nothing--the verdict of the jury, which found the appellant guilty of manslaughter was an acquittal of murder, since there is no element of manslaughter shown by the evidence, it was error to give a manslaughter instruction." Walker v. State, 123 Miss. 517, and cases cited there.

In the case before the court the testimony for the state itself fails to show that a crime was committed. The testimony for the defendant affirmatively and indisputably shows that the defendant acted in necessary or apparently necessary, self-defense, being at the time in danger of great bodily harm or in such a situation as a reasonably prudent man would have believed himself in such danger.

In this case the state attempting to prove a crime had been committed with malice aforethought, and realizing it had failed in its attempts, asked a manslaughter instruction. Such an instruction, coupled with an appeal to the jury that the shooting could not be in self-defense because one of the shots struck Mose in the back, led the jury into bringing in an erroneous verdict, based on the ground that is had a right to presume the defendant shot because he was angry. We submit the case ought to be reversed and dismissed because the jury has found the defendant not guilty of murder and because there is no element of manslaughter involved. Walker v. State, 123 Miss. 317.

D. C. Enochs, Assistant Attorney-General, for the state.

It certainly cannot be said that the homicide was justifiable. I do not believe that it can ever be said that a homicide is justifiable when the deceased has been shot in the back. Under the circumstances the deceased in this case was shot in the back. Undoubtedly the appellant was urged on by an uncontrollable passion, to shoot the appellant in the back, as he did, when the appellant was riding off and away from him.

The appellant next complains that conceding that a manslaughter instruction was proper, yet the manslaughter instruction in this case, which is set out on page 7 of the record, was erroneous in that it does not charge the jury it must believe the facts therein set out from the evidence "beyond a reasonable doubt." I must confess that the instruction taken by itself, is erroneous in this particular. But I submit that the error is not a reversible one in this case. The appellant cites in support of his contention the case of Goodwin v. State, 73 Miss. 873. In that case all of the instructions for the appellant were refused, even those invoking the doctrine of reasonable doubt. And this court in that case said that under such circumstances, it was especially incumbent on the court to charge the jury correctly for the state, and yet, in not one of the seven charges given for the state are the jury told that they must believe from the evidence beyond a reasonable doubt, etc but in five of the seven, are told to convict if they merely 'believe from the evidence' so and so--merely 'believe' and, in the seventh, they are told to convict if they believe, so and so, the words, from the evidence, even not being added. The court manifestly meant to decide for itself that there was no reasonable doubt. And, for this reason, all the instructions given for...