Herrington v. State

• Decision Date: 01 February 1937
• Docket Number: 32540 1/2
• Citation: 172 So. 129,177 Miss. 837
• Court: Mississippi Supreme Court
• Parties: HERRINGTON v. STATE

172 So. 129

177 Miss. 837

HERRINGTON v. STATE

No. 32540 1/2

Supreme Court of Mississippi

February 1, 1937

Division B

1. ASSAULT AND BATTERY.

Under common law, mere words do not constitute assault, and person is not aggressor merely because of epithets used toward another.

2. ASSAULT AND BATTERY.

Where prosecuting witness threatened to whip whoever took his automobile shift keys and defendant, convicted of assault procured and returned keys, but refused to disclose who took them, stated that he would take it on himself, and asked what prosecuting witness was going to do about it, whereupon prosecuting witness struck defendant, defendant's statements did not constitute assault and did not make him the aggressor, as regards question of self-defense (Code 1930, sec. 1282).

3. ASSAULT AND BATTERY.

Instruction that if defendant armed himse'f with a deadly weapon and provoked difficulty with prosecuting witness and was the aggressor, and so engaged in such difficulty in which prosecuting witness was wounded, then defendant could not plead self-defense, held erroneous under evidence in cutting off right of self-defense and in omitting element that knife was procured for purpose of being used in difficulty.

HON. D M. ANDERSON, Judge.

APPEAL from the circuit court of Neshoba county HON. D. M. ANDERSON Judge.

Odell Herrington was convicted of assault, and he appeals. Reversed and remanded for a new trial.

Reversed and remanded.

W. T. Weir, of Philadelphia, for appellant.

We most respectfully submit that in all cases of unlawful assault there is always the law of self defense prevails, and that the state must prove beyond a reasonable doubt and to a moral certainty the charge and in such cases every material element of the crime must be proven as charged. This is elementary law and of course citations are unnecessary.

An assault is any attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with present ability to carry such intention into effect.

3 Cyc. 1022.

The force or violence attempted or offered must be physical and no words, of themselves, can constitute an assault.

State v. Rogers, 29 So. 73; Smith v. State, 39 Miss. 521.

While it is true that our statute gives a person the right to invoke as a defense any insulting words in cases where the defendant is charged with assault, yet in this case there evidently were no insulting words sufficient by any stretch of the imagination spoken by appellant to justify the assault of the prosecuting witness. We are assuming for the sake of argument that the testimony of the prosecuting witness is true. And in the light of his testimony the appellant only straightened himself up and told him that he would take it on himself and asked him what he was going to do about it, and immediately received a severe blow.

Echols v. State, 99 Miss. 683, 55 So. 485.

It is and always has been the law that when a man is assaulted he has the right to repel force with force and to use such force as is necessary to protect himself from unlawful assault. Therefore, the appellant certainly had the right to repel the attack of his adversary using sufficient force as it appeared to him was necessary and in doing so he certainly could use sufficient to stop his adversary.

The court gave the following instruction for the state: "The court further instructs the jury for the State that if you believe from the evidence beyond a reasonable doubt that the defendant Odell Herrington armed himself with a deadly weapon, to-wit: a knife, and provoked a difficulty with Roy Gipson and was the aggressor in said difficulty, and so engaged in said difficulty in which Roy Gipson was cut and wounded, then Odell Herrington cannot plead self defense."

We most respectfully submit that the evidence does not show that appellant at any time armed himself with a knife and provoked the difficulty or was the aggressor in this case. We respectfully submit that this instruction is wholly unsupported by the evidence.

It is error to give an instruction in the absence of evidence on the point.

Johnson v. State, 124 Miss. 429; Cooper v. State, 80 Miss. 175, 31 So. 579; Oliver v. State, 39 Miss. 526; Cothran v. State, 39 Miss. 541; Frank v. State, 39 Miss. 705; Adams v. State, 136 Miss. 298, 101 So. 437; Bailey v. State, 93 Miss. 79, 46 So. 137.

Webb M. Mize, Assistant Attorney-General, for the State.

On a motion for a directed verdict all the testimony for the state must be taken as true and also all reasonable inferences drawn therefrom must be decided in favor of the state.

Justice v. State, 170 Miss. 96, 154 So. 265; Johnson v. State, 168 So. 479; Chisholm v. State, 168 So. 479.

One of the instructions complained of is the second instruction. In the first place, the instruction does not cut off the right of self defense. The instruction merely shows that in the event the defendant was the aggressor that he could not plead self defense.

Ross v. State, 158 Miss. 827, 131 So. 367; Johnson v. State, 140 Miss. 889, 105 So. 742.

Appellant was granted numerous instructions on self defense, and his rights under such plea were given to the jury in detail. The instruction for the state complained of merely gives one view of the evidence showing that if that view is believed that self defense cannot be plead.

Appellant further says that Instruction No. 3 for the state is erroneous: We submit that this instruction announces the correct principle of law. It is not every act of self defense that shows intent to kill. In the case at bar this instruction was particularly applicable to the facts, as under one view of the evidence defendant acted with passion because he was enraged over being accused of taking the keys. It must also be remembered that the difficulty was a fight and under some views of the evidence no premeditated design was shown.

Intent is the element that raises assault and battery to the degree of a felony, if there was no intent, as the jury could have believed under the evidence and as they did believe, this instruction was proper.

Toler v. State, 143 Miss. 96, 108 So. 443.

Most of the issues were in conflict, the state proving facts in one way and the defendant proving them in another. Therefore, the verdict of the jury must stand on appeal as it is the peculiar province of the jury to decide facts on conflicting evidence.

Bond v. State, 130 Miss. 813, 95 So. 87; Harris v. State, 175 Miss. 1, 166 So. 392; Erwin v. State, 168 Miss. 145, 151 So. 177.

OPINION

Ethridge, P. J.

The appellant was indicted in the Neshoba county circuit court of the crime of assault and battery, with intent to kill and murder Roy Gipson, was there convicted of simple assault, sentenced to pay a fine of one hundred dollars and to serve sixty days in the county jail, and from this conviction he appeals here.

It appears that the prosecuting witness, Roy Gipson, accompanied...