Harris v. State

Decision Date12 November 1894
Citation16 So. 360,72 Miss. 99
CourtMississippi Supreme Court
PartiesJESSE HARRIS AND KINNEY WILBOURN v. THE STATE

FROM the circuit court of Tunica county. HON. R. W. WILLIAMSON Judge.

Appellants Jesse Harris and Kinney Wilbourn, were indicted for the murder of Henry Mitchell, and were convicted of man-slaughter. A motion for a new trial was overruled, and defendants appealed.

The defendant, Wilbourn, had made an affidavit charging deceased with maliciously shooting a mule. Upon this affidavit a warrant had been issued for the deceased, by a justice of the peace, who placed the same in the hands of defendant, Harris specially deputizing him to execute it. Harris took Wilbourn to point out Mitchell, both the parties being armed with Winchester rifles, and Harris having a pistol. The deceased received one shot, from the effects of which he died, the ball entering the back, on the right of the spinal column and ranging upward and inward.

There was testimony for the state that Wilbourn had made threats against the life of deceased. The attending physicians testified that the wound was necessarily made by a person standing behind or at the side of the deceased. The testimony for defendants tended to show that they saw deceased coming towards them in a field, when they concealed themselves; that deceased came near, when Harris showed him the warrant and attempted his arrest; that he began to back, and put his hand behind him as if to draw a pistol; and that Harris saw the handle of a pistol in his hand, and, not wishing to shoot with the rifle, threw it down, when deceased started towards it, and Harris shot him with his pistol, only one shot being fired. The opinion contains a further statement of the case.

Reversed and cause remanded.

F. A. Montgomery, Jr., and J. B. Cochran, for appellants.

This case was tried by the court below upon the theory that Harris was not authorized to make the arrest under the warrant. If he had the right to execute the warrant, the judgment must be reversed. Section 2403, code 1892, expressly provides that a justice of the peace may appoint a reputable person to execute any process. The language is plain, and there is nothing to indicate that it does not include criminal warrants.

If one, in resisting arrest, makes an assault upon the officer, whereby it reasonably appears he is in imminent danger of death or great bodily harm, he may slay in self-defense. Roscoe on Cr. Ev., 615; 61 Am. Dec., 162.

The court should have admitted the testimony going to show threats by the deceased, which were communicated to the appellants. It is always competent to prove everything that will tend to show the motive of the killing. Story v. State, 68 Miss. 609.

It was error to refuse defendants' instructions as to selfdefense. The court could not decide upon the weight of this evidence, and exclude it because deemed insufficient. The testimony shows that the defendant, Harris, had good reason to believe that he was in imminent danger of death or great bodily harm. Hawthorne v. State, 58 Miss. 778; Thomas v. State, 61 Ib., 60. Whether or not a magistrate can, under any circumstances, specially deputize one to execute a criminal warrant, it must be true that a person so deputized is an officer de facto, and he is entitled to protection as such. Ray v. Murdock, 36 Miss. 692; 90 Am. Dec., 488.

Frank Johnston, attorney-general, for the state.

Proof of threats is never admissible unless there has been some overt act. Kendrick v. State, 55 Miss. 436; Moriarty v. State, 62 Ib., 654. Under the facts of this case, no reasonable man could have supposed that the action of the deceased constituted a hostile demonstration. He did not draw a weapon, and it is evident he had no intention of using one. On this point, see Evans v. State, 44 Miss. 762; Parker v. State, 55 Ib., 414.

There was no error in giving the instructions for the state. They contain abstract principles of law, and are correct. Some of these instructions are on the theory of murder; but, as the verdict was for manslaughter, error cannot be predicated. Parker v. State, 55 Miss. 414. The verdict of manslaughter is supported by all the facts, and it is manifest that the defendant was not prejudiced by the action of the court in refusing any of the instructions asked. Even if Harris was legally authorized to make the arrest, as counsel contend, he was clearly guilty of manslaughter. Where resistance is made, if the officer kill the party after resistance is over, the crime is, at least, manslaughter. Wharton on Homicide, p. 49; 9 Am. & Eng. Enc. L., 608.

OPINION

WHITFIELD, J.

Dr. Irby testifies that the deceased "could have been shot from the side, the way the bullet went in." Harris testified that the pistol of deceased "was in his right-hand hip pocket, and deceased was facing witness kinder sideways;" and, again, that deceased was close enough to the Winchester; all he had to do was to reach over and get it. It is shown that the range of the ball was inward and upward. Both defendants say that Harris threw down his Winchester, and that deceased, who they say had put his hand on what appeared to be a pistol in his hip pocket, and who, Harris says, appeared to be "fingering his pistol," which, he says, "appeared to hang back," sprang towards the Winchester to get it, and they both say Harris then shot deceased with his pistol. The appellants offered to show threats communicated to them the night before, to the effect that the deceased said he would not be arrested; that he would "kill any two men who came to arrest," etc. This was excluded, and a number of instructions presenting the theory of self-defense were refused.

The testimony for the state might well have warranted the jury in finding a verdict of murder, if that had be enaccepted and the testimony as to...

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7 cases
  • Beauchamp v. State
    • United States
    • United States State Supreme Court of Mississippi
    • 3 Abril 1922
    ...since such threats indicated the feeling of deceased toward accused. Leverett v. State, 112 Miss. 396 & 406 (73 So. 273) citing Harris v. State, 72 Miss. 99, 406. Threats Admissible Where There was Doubt, or Conflict as to Who Was the Aggressor, or Where They Throw Light on the Significance......
  • Echols v. State
    • United States
    • United States State Supreme Court of Mississippi
    • 12 Junio 1911
    ...or in a conditional form, can make no difference in this case. They are admissible and their weight is for the jury. In Harri's case, 72 Miss. 99, of threats and instructions thereon were excluded. This court said, "We cannot weigh the testimony offered in the light of the charges refused o......
  • Boatwright v. State
    • United States
    • United States State Supreme Court of Mississippi
    • 22 Diciembre 1919
    ... ... cause, to change the venue, or to quash the special venire ... There was, furthermore, no error in admitting testimony that ... appellant [120 Miss. 896] several weeks before the difficulty ... uttered threats against any officer who should undertake to ... arrest him. Harris v. State, 72 Miss. 99, ... 16 So. 360 ... The ... first, and about the only, point that has troubled the court ... is the contention that the defendant was not served with a ... copy of the indictment and of the special venire at least one ... entire day before trial, as provided ... ...
  • Cordell v. State
    • United States
    • United States State Supreme Court of Mississippi
    • 6 Octubre 1924
    ... ... from the proposition as we have laid it down ... We find ... that in this state in Boatright v. State, 83 So ... 311, it was permitted to show that Boatright said he would ... kill any officer who tried to arrest him. In Harris v ... State, 72 Miss. 99; 16 So. 360, the evidence was ... admitted that, "He would kill any two men who came to ... arrest him." We also think the following cases are in ... our favor. Petty v. State, 35 So. 213; Newcomb ... v. State, 37 So. 383; Primm v. State, 73 Miss ... 838; Johnson v ... ...
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