Hill v. State of Mississippi

• Citation: 94 Miss. 391,49 So. 145
• Court: United States State Supreme Court of Mississippi
• Decision Date: 03 May 1909
• Parties: EDWARD HILL v. STATE OF MISSISSIPPI

49 So. 145

94 Miss. 391

EDWARD HILL v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

May 3, 1909

October 1908

FROM the circuit court of Yazoo county, HON. WILEY H. POTTER Judge.

Hill the appellant, was indicted and tried for the murder of one Samuel Green, was convicted of manslaughter and sentenced to the penitentiary for a term of four years, and appealed to the supreme court. The opinion sufficiently states the facts.

Judgment reversed and cause remanded.

Holmes & Holmes, for appellant.

The deceased was a negro of great physical strength, while the appellant is a man of comparatively small size. The evidence showed that the deceased was a man of violent character and although at the time of the homicide he had no weapon, it was a matter of common knowledge in his community that he habitually carried concealed weapons. The quarrel between appellant and the deceased was originated by the deceased, and it was not until Green carrying a gun barrel, advanced upon appellant, striking at appellant and grazing his shoulder, that the appellant shot Green. In fact, appellant first offered no resistance to Green's attack but turned and ran down the road pursued by Green with the gun barrel. Under these circumstances the fourth instruction for the state was erroneous. We recognize the well settled view of the law that one, in repelling the attack of an unarmed man of his own size, cannot slay him. For where two men are of equal size and physical strength the attack of one upon the other without a weapon does not furnish such other sufficient reason to anticipate great bodily harm or danger of life. But we cannot concede the positive statement of law without qualification or modification that the "great bodily harm" which the law contemplates may never be such as may be inflicted by mere blows with the hands or feet. We can conceive of cases in which a man of large size and great physical power might, without the use of a deadly weapon, or any weapon, but solely with the hands or feet, inflict great bodily harm, and probably fatal injury upon a man of small size and inferior strength; such as, for example, by choking him, or beating, kicking and stamping him in some vital part of his body. And the courts have recognized not only the possibility, but the probability of such cases, and in passing upon the question whether or not mere blows with the hands, fist, or feet, will excuse the use of a deadly weapon, they have adopted the negative view, always with this qualification, under ordinary circumstances, meaning thereby, under circumstances in which the combatants are of equal size and physical strength, or nearly so.

The court also erred in refusing to grant the two instructions for appellant, which were asked with a view of curing the error in the fourth instruction for the state. This court, through COOPER, C. J., has clearly decided that where there is a disparity in age, size or strength between two persons, the one may repel the attack of his superior in strength with a deadly weapon, even though his assailant be unarmed. Hall v. State, 1 So. 351.

George Butler, assistant attorney-general, for appellee.

It cannot be said that, as a matter of law, a case of self defense was indisputably shown by appellant. The question of whether or not "apparent danger" exists, is a question of fact and does not become a question of law except where the facts are absolutely determined and settled. Long v. State, 52 Miss. 23.

It is shown in the record that the appellant was physically unable to cope with Green, deceased, in a physical combat; and the theory of the defense on the trial was that Green was in the act of making a violent and deadly assault upon appellant when the fatal shot was fired. It will be noted that the deceased was unarmed and had no weapon about his person, but the defense contends that in view of his physical powers he was capable of inflicting this deadly assault with his hands and feet and it was to protect from such an assault thus about to be inflicted that the appellant fired. But in considering the propriety of the ruling of the court on these instructions, ...