Hays v. State

• Decision Date: 27 November 1922
• Docket Number: 22309
• Citation: 130 Miss. 381,94 So. 212
• Court: Mississippi Supreme Court
• Parties: HAYS v. STATE

94 So. 212

130 Miss. 381

HAYS v. STATE

No. 22309

Supreme Court of Mississippi

November 27, 1922

1 HOMICIDE. Instruction defining murder held not error.

An instruction for the state in a murder case, "that murder is the unlawful killing of a human being without authority of law, when done by any means or in any manner when done with the deliberate design to effect the death of the person killed," is not reversible error.

2 HOMICIDE. Killing after blow struck in self-defense and when noreal or apparent danger existed held murder.

An instruction which tells the jury that, though they may believe the first blow was struck in, necessary self-defense "yet if you further believe from the facts and circumstances in the case beyond every reasonable doubt, that the defendant abandoned the deceased and left him prostrate and helpless on the ground, and you further believe from the proven facts and circumstances, beyond every reasonable doubt, that the defendant afterwards heard the deceased groaning and struggling, and that he (the defendant) returned to the deceased with a rifle, and at a time when the defendant was in no real or apparent danger of losing his own life or suffering some bodily harm at the hands of the deceased,, the defendant willfully and feloniously, and of his malice aforethought struck the deceased a fatal blow or blows, and that said blow or blows proved fatal or contributed to the death of the deceased, then you should find the defendant guilty as charged, regardless of every other fact or circumstance in the case," is not error where there is evidence to support such hypothesis.

3 HOMICIDE. Conviction warranted by evidence not reversed because of instruction shutting off right of self-defense.

An instruction shutting off the right of self-defense should not ordinarily be asked or given, but where the evidence shows that the defendant armed himself for the difficulty with the intent to use the weapon if necessary to overcome the deceased, and the instruction is correctly drawn, this court will not reverse a conviction amply warranted by the evidence.

4. CRIMINAL LAW. No error can be assigned on failure to give instruction requested by neither party.

Under the statutes of this state the trial court cannot give an instruction unless requested in writing by one of the parties to the suit to do so, and no error can be predicated on such failure unless the court was requested by one of the litigants to so instruct, hence where neither the defendant nor the state equested an instruction on manslaughter in a homicide case, no error can be assigned.

HON. W H. HUGHES, Judge.

APPEAL from circuit court of Simpson county, HON. W. H. HUGHES Judge.

Wiley Hays was convicted of murder, and he appeals. Affirmed.

Judgment affirmed.

A. W. Dent and G. H. Merrell, for appellant.

We shall first direct the court's attention to the criticism we have on instruction No. 1, and submit it is not a definition of murder as defined by section 957, Hemingway's Code, or any other definition of murder we are able to find anywhere, and is so misleading and confusing that the jurors could not intelligently consider the other instructions by using this instruction No. 1 as a basis and definition of murder.

We have been always taught that the use of two negatives is equivalent to an affirmative, for example: Nemo non audit (nobody will not hear), which means, every one will hear. Nemo non, nullus non (nobody does not), which means that, everybody does. Non Nemo (not nobody), means, somebody. The use of two negatives either expresses an indefinite affirmative, or universal affirmative. This rule, we understand, is without an exception.

Applying this rule what does the instruction mean. It means and can only mean this: "That murder is the killing of a human being, when done by any means or in any manner when done with the deliberate design to effect the death of the person killed."

Certainly an unlawful act cannot be done without authority of law. Neither can an unlawful act be done without authority of law. Unlawful certainty means not lawful; so likewise "without authority of law," means not lawful. Now we see what the court says murder is: "The not lawful killing of a human being not lawful. Remember that two negatives are equivalent to an affirmative, and we have what the court says murder is, viz: That murder is the killing of a human being when done by any means or in any manner when done with the deliberate design to effect the death of the person killed."

It will be seen that this definition of murder excludes justifiable and excusable homicide, and therefore, the jury could not consider the evidence and instructions of appellant on self-defense. From this instruction, it made no difference if appellant did act in self-defense he was guilty of murder; it made no difference if appellant was in imminent danger of being shot by the deceased, he had no lawful right to the lawful defense of his own person and the jury could not consider the law of self-defense of his own person, and the jury could not consider the law of self-defense. When the statute gives the definition of murder in plain English, it should be followed, and courts should not be permitted to enlarge on that definition, if by so doing, it is calculated to mislead the jury, men of good intelligence, sound judgment and fair character.

In the case of Rutherford v. State, 100 Miss. 832, 57 So. 224, this court held the following instructions as fatal error, the instruction being: No. I. "The court charges the jury, for the state, that murder is the killing of a human being, by any means or in any manner, when done with the deliberate design to effect the death of the person killed." Citing the case of Ivy v. State, 84 Miss. 264, 36 So. 265.

All we have to safeguard our liberties is a correct understanding of the law which is for protection. By a correct analysis of instruction No. 1, in case at bar, it will be seen that it is exactly the same definition of murder as given in the Rutherford and Ivy cases, supra, both of which were reversed on account of fatal error in the definition of murder.

We confidently expect a reversal of the case at bar by reason of fatal error in the giving of instruction No. 1 on the definition of murder. Possibly it need not have been given, but as it was given it should have been correct. We submit there is another reason why this case should be reversed, and that is in giving the law as to real or apparent danger in the various instructions given the state, and the refusal of the instruction appearing on page 117 of the record asked for by appellant.

For convenience we quote and refer to that part of the instructions for the state complained of. Record page 103: "And at a time when the defendant was in no real or apparent danger of losing his own life or suffering some great bodily harm at the hands of the deceased, the defendant wilfully and feloniously and of his malice aforethought, struck the deceased a fatal blow or blows, and that said blow or blows proved fatal or contributed to the death of the deceased, then you should find the defendant guilty as charged, regardless of every other fact or circumstance in the case."

Assuming that the part of the instruction not quoted is correct, it appears from this quoted part that appellant had to be in either real or apparent danger before he could act, regardless of however honest he might have been in his belief that he was in imminent, pressing and unavoidable danger of losing his own life or suffering some great bodily harm at the hands of the deceased. Appellant had no right to take in the situation, circumstances and surroundings at the time; under this instruction the danger must be real or apparent regardless of appellant's honest belief situated as he was at the time. Appellant may have actually and honestly believed at the time he was in very great danger of loosing his life or suffering great bodily harm when after-developed facts showed he was in neither real or apparent danger. The jury should have been permitted to consider his belief at the time, situated as he was, confronted by his adversary. Under this instruction they were not permitted to do this, because it says they must convict appellant regardless of every other fact or circumstance in the case. Pray, why any other instructions?

No other fact or circumstance can be considered except as contained in that instruction. The state was not content with that instruction although the jury could consider no other fact or circumstance; and instruction No. 4 even told the jury they need not consider the warning appellant gave the deceased to stay away from his people, if at the time he struck deceased the fatal blow, he, appellant, "was in no real or apparent danger of losing his own life or suffering some great bodily harm at the hands of the deceased," he was guilty of murder and the jury should so find. In this instruction No. 4 will be found a repetition of the same...