Hunt v. State

• Decision Date: 21 January 1895
• Citation: 16 So. 753,72 Miss. 413
• Court: Mississippi Supreme Court
• Parties: ELBERT HUNT v. THE STATE

16 So. 753

72 Miss. 413

ELBERT HUNT v. THE STATE

Supreme Court of Mississippi

January 21, 1895

October 1894

FROM the circuit court of Desoto county. HON. EUGENE JOHNSON Judge.

Appellant Hunt, has been convicted of murder and sentenced to be hanged. Briefly stated, the circumstances of the killing were as follows: Deceased, John Scott, married appellant's daughter, and afterwards had frequent quarrels with her. On the night of the killing Hunt went to the home of Scott after Scott and his wife had retired, and called Scott, and told him that he had come to whip him. Hunt was profane and abusive, but Scott asked him to leave the house, and stated that he did not wish a difficulty, and that he and his wife had settled their differences and quarrels. As Hunt did not withdraw, Scott got up and went into the yard, picking up a hoe or hoe handle as he went out. Hunt followed him, advancing upon him with a stick in his hand. Scott knocked him down. Hunt got up and continued to advance, whereupon Scott knocked him down a second time. Hunt arose again and ran upon Scott, and was then knocked down a third time; and, while on his knees, he drew his revolver and shot Scott. This occurred when Hunt was just outside the yard and Scott was just inside. The opinion contains a further statement of the facts.

The points of law arising from the instructions sufficiently appear in the opinion. The fifth instruction, which the court holds to be erroneous, but to be cured by the ninth given for defendant, is one on the subject of reasonable doubt, which tells the jury that upon a comparison of all the facts and circumstances, if they conscientiously believe that defendant's intention was to provoke a difficulty and use the pistol in it, this is sufficient to meet the requirement that this must be shown beyond a reasonable doubt.

Judgment reversed.

Powel & Dabney, for appellant.

It is certain that when appellant shot, he was attempting to avoid the conflict by retreating. He had gone entirely outside the yard. He had done nothing worse than to go to his daughter's house and tell her husband he intended to beat him. He had made no attempt to put his threats in execution, and it was only when murderously assaulted, and after he had retreated outside the yard, that he made an attempt to defend himself. It was only when his life was in danger that he offered any resistance. If he had intended to provoke a difficulty and use a weapon, he had repented of it, and had abandoned the conflict, and therefore did not lose his right of self-defense. 2 Bishop on Criminal Law, § 576. The first instruction should have been given without change. Cotton v. State, 31 Miss. 504; Thomas v. State, 61 Ib., 60. It was not enough to warrant conviction that accused provoked a difficulty at a time when he was armed with a deadly weapon. The jury should have been told that they must also believe the weapon was procured for the purpose of provoking a difficulty. Thomas v. State, supra.

The third instruction is in direct conflict with the doctrine announced in Cotton v. State, supra. It deprives defendant of the right of self-defense, even if he intended at the outset to inflict little or no violence on his antagonist. The whole theory of the instructions for the State seems to be that appellant had lost his right of self-defense merely because he had a pistol on the night of the difficulty. They not only deprive him of the right of self-defense, if he had the pistol and sought to use it in inflicting any injury, however slight, but deny him the benefit of evidence tending to show he had abandoned the conflict.

Frank Johnston, attorney-general, for the state.

There was no error in modifying the instructions. The rule Which runs through defendant's instructions is incorrect. It is not necessary to show that a person who provokes a difficulty, armed with a deadly weapon, intended to use it to overcome or slay his adversary. It is sufficient to deprive him of the right of self-defense, that he procured the weapon for the purpose of using it in the difficulty. Long v. State, 52 Miss. 23; Thomas v. State, 61 Ib., 60. The intent is presumed from the use of the weapon. Lamar v. State, 63 Miss. 265. There was no error in the modification of the first and ninth instructions after the argument for the defense had closed. Wood v. State, 64 Miss. 761; 1 Bishop Crim. Pro., 976.

OPINION

WHITFIELD, J.

The first and second charges asked by the defendant informed the jury that, to deprive the defendant of the right of selfdefense, he must have procured the pistol, intending at the time he procured it to bring on the difficulty, and use the pistol in the difficulty in overcoming or slaying the deceased if necessary. These instructions, as asked, are incorrect. It is not necessary, to take away the right of self-defense in such case, that the defendant should intend to use the pistol to overcome or slay his adversary. It is enough if he intends to use it in committing upon the deceased great bodily harm, or any felony. As asked by the defendant, therefore, the instructions should have embraced these qualifications. The modifications of the court, apparently, did not proceed upon this line, however; but, as written, told the jury, in the first modification, that it was enough to deprive the defendant of the right of self-defense, if he procured the pistol with a view of bringing on the difficulty, merely; and, in the second modification; if he "armed himself with it, to be used in the fight"--to be used in any way in overcoming his adversary, committing upon him any felony, or in merely inflicting injury, however slight. The modifications, therefore, are also incorrect, as written. This court says, in Thomas v. State, 61 Miss. 60: "The second instruction was defective in omitting the qualification that the weapon was procured or prepared with a view of being used, if necessary, to overcome opposition." Long's Case, 52 Miss. 23, the opinion in which was delivered by the same eminent judge who delivered the opinion in Thomas' Case, accords perfectly with this, properly understood. It is at once, however, suggested by the case made by the testimony in the record that the jury must have understood these instructions, as modified, to mean that the "use of the pistol in the fight," referred to by the court, was such use as would naturally be made with a deadly weapon, to wit, a deadly use--a use resorted to in overcoming opposition, or committing any felony upon the deceased. We do not, therefore, regard the errors in the modifications as reversible errors, but have noticed them that the charges may be properly framed on the new trial.

The seventh instruction should have been refused altogether, as being without any testimony to warrant it. There is no evidence that defendant was "passing his...