Jamison v. Moseley

• Decision Date: 15 February 1892
• Citation: 69 Miss. 478,10 So. 582
• Court: Mississippi Supreme Court
• Parties: A. J. JAMISON v. E. A. MOSELEY

10 So. 582

69 Miss. 478

A. J. JAMISON v. E. A. MOSELEY

Supreme Court of Mississippi

February 15, 1892

FROM the circuit court of Clay county, HON. C. H. CAMPBELL, Judge.

Action by appellee, Mosley, against the appellant, Jamison, for the recovery of damages for an assault and battery by shooting. The suit originated in the first district of Chickasaw county, but, on application of the plaintiff, the venue was changed to Clay county. The case has been before this court twice prior to the present appeal. See Moseley v Jamison, 66 Miss. 52; 67 Ib., 336.

On the last trial, among other instructions, the court gave the following: "The court charges the jury for the defendant that, if they believe from the evidence that, on the day of the difficulty between plaintiff and defendant, the defendant went from his residence to the court-house to answer a charge of assault and battery, and that, before he went, he was informed that one Moore had threatened to attack the defendant with a stick and do him some great bodily harm, and that, for the purpose of defending himself from said attack the defendant armed himself with a pistol, and that he went into the mayor's court and plead guilty, or in justification, of the charge of assault and battery, and then unexpectedly had an altercation with the plaintiff, in which defendant referred to plaintiffs client as a strumpet, and that the plaintiff said she was as good as the" opposite party," to which defendant replied, "To whom do you refer?" and plaintiff responded, "I mean you," and then drew from his pocket a pistol, in a manner that would indicate to a reasonable man that he intended to shoot the defendant, and that then the defendant drew his pistol and shot plaintiff, and that there were then several shots fired by both plaintiff and defendant in mutual combat, the jury will find for the defendant. And if the jury believe that plaintiff drew his pistol before the defendant drew his or attempted to draw it, it is immaterial whether plaintiff or defendant fired first."

Verdict and judgment in favor of plaintiff for $ 5,000. Motion for new trial overruled, and defendant appeals. The opinion contains a further statement of the case.

Reversed and remanded.

Fox &amp Roane, for appellant.

The judgment must be reversed because of the serious error in granting the tenth and thirteenth instructions for plaintiff. The tenth instruction would be a proper charge for the defendant if Moseley were on trial for assaulting Jamison. He might have been acquitted of such a charge if the jury believed the act of Jamison was apparently aggressive to a reasonable man, whether it was really so or not. The question here is, whether, before Moseley drew his pistol or attempted to do so, Jamison really made a movement actually aggressive, and whether he made a movement actually to draw a pistol. But the jury was told, in effect, that, although it may have believed that Jamison was perfectly innocent of any intention to shoot Moseley before the latter drew his pistol, and, although it might believe that Jamison acted strictly in self-defense, yet, if it believed that when Jamison changed the position of his hand it appeared to Mosley as if he was going to draw a pistol, or, if it was believed that; to Mosley, Jamison's action was apparently aggressive, whether it was really so or not, the verdict should be for plaintiff.

The thirteenth instruction is equally erroneous. By it the jury was told, that if the defendant's evidence leaves the matter in doubt as to whether he was justified or not, then the verdict must be for plaintiff. The error is so apparent that it is useless to argue it. There might be not only a doubt, but a reasonable doubt, as to whether defendant was justified, and yet, if the preponderance of the evidence was in his favor, he was entitled to a verdict. Again, the jury was told, that if the evidence introduced by the defendant left the matter in doubt, the verdict should be for plaintiff. This prohibited the jury from considering any part of plaintiffs evidence that was favorable to defendant, and much of it was favorable.

Beall & Pope, for appellee.

The only questions arising on plaintiffs instructions discussed in the court below were as to those numbered four and thirteen. It was insisted that the defendant was not required to prove a "full legal justification for shooting plaintiff." We submit that any thing short of a legal justification would not avail, and it must also be a full justification. The defendant might reduce the damages by proof of mitigating circumstances, but, relying upon justification to avoid a verdict entirely, it was incumbent upon him to prove a full legal justification.

The thirteenth instruction announces a familiar rule, and is correct. If the defendant admitted the shooting, it devolved on him to satisfy the jury that he acted in necessary self-defense. It is not sufficient, in such case, to prove a doubtful justification. The law requires one holding the affirmative of any issue to do more than simply raise a doubt in the minds of the jury.

The case was properly submitted to the jury, and was fairly and fully tried. It is to be presumed that the jury construed all the instructions together. Taking them as a whole, it is manifest no injury was done the defendant.

W. T. Houston, on the same side.

The court did not err in granting plaintiffs tenth instruction. Watrous v. Stell, 4 Vt., 631. If the defendant was the aggressor, and by his wrongful conduct induced the plaintiff to act, and then for that act shot him, he is liable for the consequences.

The court did not err in giving the thirteenth instruction for plaintiff. Taken as a whole, this charge, told the jury that if appellant's justification was proven to its satisfaction, it should find for him; otherwise, if it failed to do so, or left this in doubt. All charges are to be construed together. This instruction, especially when taken in connection with those given for the defendant, could only be understood as emphasizing the statement that the jury must be satisfied of appellant's justification from the evidence--not beyond a doubt, but that it must be satisfied. The rule of law on this subject goes further than the necessities of our ease. It requires of him who has judged for himself as to the propriety of attempting to take life with a deadly weapon, that he should be prepared to make clear his justification. This is not out of tenderness for the plaintiff, but from considerations of public policy and as a restraint to hasty and ill-tempered persons. The rule has been relaxed in criminal cases, but not in civil actions for tort.

Conceding that the charge was too strong, considered in the abstract, yet it was error without injury. The instructions are to be considered together. A correct result was reached.

Here counsel discussed the facts, but, in view of the opinion, the argument as to this is omitted.

Argued...