Lewis v. State

• Citation: 195 So. 325,188 Miss. 410
• Decision Date: 08 April 1940
• Docket Number: 34062
• Court: United States State Supreme Court of Mississippi
• Parties: LEWIS v. STATE

195 So. 325

188 Miss. 410

LEWIS v. STATE

No. 34062

Supreme Court of Mississippi

April 8, 1940

APPEAL from the circuit court of Hinds county HON. J. P. ALEXANDER Judge.

Eddie T. Lewis was convicted of murder, and he appeals. Affirmed.

Instruction correct and applicable.

L. A Wyatt, of Jackson, for appellant.

The third instruction granted to the state is fatally defective because it cut off the defendant's plea of self-defense without requiring the jury to find that the defendant provoked the final difficulty.

Hartfield v. State, 176 Miss. 776; Fore v. State, 75 Miss 727; Prine v. State, 73 Miss. 838; Cannon v. State, 57 Miss. 147.

The instruction is fatally defective because it cut off the defendant's plea of self-defense without requiring the jury to find that the defendant's intention in arming himself was to provoke a difficulty and overcome opposition.

Coleman v. State, 179 Miss. 661.

The instruction is fatally defective because it cut off the defendant's plea of self-defense without requiring the jury to find that the defendant had not abandoned his felonious design.

Ross v. State, 158 Miss. 827; Williamson v. State, 115 Miss. 716; Jones v. State, 84 Miss. 194; Pulpus v. State, 82 Miss. 194; Rogers v. State, 82 Miss. 479; Smith v. State, 75 Miss. 542; Hunt v. State, 72 Miss. 413.

The instruction is fatally defective because it is in direct contradiction to the ninth instruction granted to the defendant.

Hartfield v. State, 176 Miss. 776; Vance v. State, 182 Miss. 840.

It was fatal error to grant to the state an instruction which cut off the defendant's plea of self-defense.

Brown v. State, 191 So. 818; Vance v. State, 182 Miss. 840; Williams v. State, 90 Miss. 319; Herring v. State, 87 Miss. 628; Cooper v. State, 80 Miss. 175; Lofton v. State, 79 Miss. 723; Patterson v. State, 75 Miss 670.

W. D. Conn, Jr., Assistant Attorney-General, for appellee.

As to the instruction to which appellant takes exceptions, the theory of the state, and it is amply supported by the evidence, was that appellant had this first difficulty with the deceased and that he left, stating that he was going to get his gun and come back and kill the whole family. The proof shows, and the defendant admits, that he did go to his home, that he procured his gun, loaded it and then went to the home of deceased and maneuvered himself into shooting distance before he was discovered by any of those present at the home of deceased. He stepped out from behind the crib and fired his gun, killing the deceased. He immediately fled from the scene after threatening to kill others who were present, concealed his gun, and apparently stayed out of sight for some time after the killing.

This court, in a number of cases, has cautioned against the use of this character of instruction. Nevertheless, the court has said that cases have arisen, and may arise, where all the elements necessary to work an estoppel of self defense are present. We think this is one of those cases. The evidence shows the first difficulty and it shows that appellant armed himself and returned to the scene of the killing, not for the purpose of provoking a difficulty, but for the apparent purpose of murdering someone from ambush.

In Durham v. State, 158 Miss. 833, 131 So. 422, the court referred to the cases where this instruction was held to be proper, citing Ex Parte Wray, 30 Miss. 673; Hunt v. State, 72 Miss. 413, 16 So. 753; Thomas v. State, 61 Miss. 60, and Stubblefield v. State, 142 Miss. 787, 107 So. 663; 158 Miss. 827, 131 So. 367.

The instruction presented by the evidence in this case is reminiscent of Woodward v. State, 177 So. 531, and the suggestion of error, 178 So. 469, except that here it was not left to inference as to when and where the gun was procured. In that case the court said that the facts called for an application of the old maxim, "Actions speak louder than words." The court, in the Woodward case, said that the facts there shown were sufficient to justify the court in granting an instruction estopping the plea of self defense.

There was no evidence to show that the defendant provoked any difficulty with the deceased before he shot him. It was purely an assassination under the state's proof.

It is argued that the instruction was erroneous for the further reason that it did not embody the proposition of abandonment. If there were any evidence at all in the record from which the jury could infer that the appellant, in good faith, had abandoned his intention of killing deceased, then it would have been proper for this proposition to be embodied in the instruction. However, we challenge the record upon this matter and say that there is nothing from which it could be inferred in the slightest that the defendant ever, at any time, undertook, in good faith, to abandon that which he had started out to do, and which he did do.

Hanna v. State, 168 Miss. 352, 151 So. 370; Singleton v. State, 71 Miss. 782, 16 So. 295; Boy v. State, 84 Miss. 414, 36 So. 525; Dow v. Town of D'Lo, 169 Miss. 240, 152 So. 474.

If we are correct in our estimate of Instruction No. 3, given for the state, then it was correctly given. If this be true, then if there be conflict between it and any instruction for the defendant, the conflict arises by reason of an incorrect principle in the defendant's instruction. In such case, he cannot complain where the conflict is brought about by an erroneous instruction which he procured the court to give.

Long v. State, 163 Miss. 535, 141 So. 591.

This case presents a situation where it is clearly evident that the right result has been reached. This court has long said that in determining whether to affirm or reverse a conviction it will determine two things: First, whether error has been committed, and, if so, second, whether such error were of such character as to justify a reversal of the conviction.

Comings v. State, 163 Miss. 442, 142 So. 19; Goins v. State, 155 Miss. 662, 124 So. 785; Lott v. State, 168 Miss. 710, 152 So. 488; Garrett v. State (Miss.), 193 So. 452.

Argued orally by L. A. Wyatt, for appellant, and by W. D. Conn, Jr., for the appellee.

Anderson, J., Griffith, J., dissenting. McGowen, J., concurs in this dissent.

OPINION

Anderson, J.

Appellant was indicted, tried, and convicted in the Circuit Court of Hinds County of the murder of his father-in-law, John Ross, and sentenced to death. From that judgment, he prosecutes this appeal.

The ground assigned and argued for reversal was the giving of the following instruction for the State: "The Court instructs the jury for the State that, if you believe from the evidence beyond a reasonable doubt, that the defendant, Eddie Lewis, armed himself with a shotgun and went to the premises of John Ross with the premeditated design unlawfully and feloniously to kill the said John Ross or some member of his family and that he did so kill the said John Ross in furtherance of such design, then it will be the sworn duty of the jury to find the defendant guilty of murder, even though you may believe from the evidence, that the deceased John Ross placed his hands on his hips and the defendant believed that his own life was then in danger."

It is argued that its giving was erroneous for the following reasons: (1) Because it did not require the jury to believe that the appellant provoked the final difficulty; (2) it did not require the jury to find that appellant's intention in arming himself was to provoke a difficulty and overcome opposition; (3) it did not embrace any idea of "abandonment"; (4) it conflicted with the ninth instruction granted appellant; (5) and, that this is not a case in which a self-defense estoppel instruction was proper.

Early in the afternoon of the day of the homicide, according to the evidence for appellant, he was abused and assaulted by his father-in-law and a brother-in-law. The evidence for the State tended to show in a very substantial way that thereupon appellant stated he was going home and get his gun and kill the whole family. He went home and got his gun, and about six o'clock went to the home occupied by John Ross, and when the latter...