Lofton v. State

• Decision Date: 17 February 1902
• Citation: 31 So. 420,79 Miss. 723
• Court: Mississippi Supreme Court
• Parties: FRANK LOFTON v. STATE OF MISSISSIPPI

31 So. 420

79 Miss. 723

FRANK LOFTON v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

February 17, 1902

FROM the circuit court of Yazoo county. HON. ROBERT POWELL, Judge.

Appellant was indicted at the August, 1901, term of the circuit court of Yazoo county on a charge of the murder of one Peter Stiff was tried at the September term of said court, and convicted. From the evidence adduced by the state it appears that the defendant and deceased had had some angry words a short time before the killing, at or near a "deadening," about one mile from the place of the homicide; that the defendant left the place of the first difficulty, saying he would see deceased again; that the defendant was next seen in the road coming from his home, with a gun in his hands; that he hailed deceased, who jumped out of his wagon on the side toward defendant, and that defendant shot deceased, killing him instantly; that deceased had no weapon or stick at the time and was not making any demonstrations against defendant. On the part of defendant, evidence was introduced to show that at the "deadening," where the first difficult occurred, the deceased had threatened to "get" the defendant; that, at the time of the shooting, deceased was advancing on defendant with a large stick in his hands, with the same drawn on defendant; that defendant warned deceased not to advance on him, but that deceased paid no attention to the warning; that the stick was found in deceased's hands after he fell to the ground. The defendant, in his testimony accounts for his presence at the place of the homicide, and of his having the gun, by the fact that he was going over to a Mr. Stubblefield's (his employer) to get some money that had been promised him, and, it being about dark, he carried his gun along; that he was not expecting to meet deceased, and did not know who was in the wagon when he met it. On the trial of the case in the court below the following instructions were asked by the state, and granted by the court:

"No. 2. Every willful killing of a human being which is not excusable or justifiable by law is either murder or manslaughter--murder if it be done deliberately, manslaughter if done without any deliberation whatever; and the deliberation necessary to constitute murder need only to exist for an instant before the killing. It is sufficient, if the purpose to kill is distinctly formed in the mind, though it be but an instant before the fatal shot is fired.

"No. 3. The court instructs the jury, for the state, that, if they believe, from the evidence, beyond a reasonable doubt, that the defendant accosted deceased in the road at the "deadening," and that the defendant and deceased had a difficulty or quarreled there, and that deceased cursed defendant, and that the defendant rode off and said he would see deceased later, or words to that effect, and that the defendant then went to his home and armed himself with his shotgun, intending to use the same to overcome deceased, and kill him, if necessary, in the course of the difficulty, and returned to where deceased was, in the road, and renewed the difficulty, then the defendant cannot plead self-defense; and it is the duty of the jury, if they so believe beyond a reasonable doubt, to convict defendant, even though they may believe that the deceased was advancing on the defendant with a stick at the time he was shot."

Defendant was convicted, and sentenced by the court to be hanged. From this judgment of the court he appealed to the supreme court, and set out, among other grounds of error, the granting of the above instructions.

Reversed and remanded.

Barnett & Perrin, for appellant.

The second instruction is erroneous in that it pares away the rights of the defendant and makes too narrow the definition of murder. The instruction says that a killing is murder if done deliberately, and the deliberation necessary to constitute murder need only to exist an instant before the killing. Nor does it stop here, but goes on to say further: "It is sufficient if the purpose to kill is distinctly formed in the mind, though it be but an instant before the fatal shot is fired." Now, manifestly the purpose to kill may be distinctly formed in the mind an instant before the fatal shot is fired, and the defendant be not guilty of murder. Is purpose synonymous with the deliberation necessary to constitute murder? Let us apply the instruction to the facts of this case as testified to by the defendant, and the court will clearly see how damaging the instruction must have been. The defendant's version of the killing was as follows: "All got back in the wagon but Peter, and Peter came on and advanced on me with this stick in his hand. I ran back, and told him to go back or I would shoot him, and he got close and raised his stick, and I fired." Now, surely, if the jury believed this, the defendant ought not to have been convicted. Yet, under the instruction we are criticising--here was the purpose to kill an instant before the fatal shot was fired, and the jury could have believed every word the defendant testified to, and yet, under the instruction, would have been compelled to find him guilty. There is no qualification whatever to the instruction. To make it proper in any state of case, it should have been qualified as was the instruction in Hawthorne v. State, 58 Miss. 778, by the addition of the words: "Unless the jury believe that the killing was manslaughter or done in necessary self-defense." We submit that it is impossible to conceive of any killing done in necessary defense, or in the sudden heat of passion, where the purpose to kill is not formed in the mind an instant before the fatal shot is fired, and yet this instruction makes no allowance for either of these contingencies, but in effect states positively that it is sufficient to constitute the crime of murder under any circumstances, at any place, in any condition, if the purpose to kill is distinctly formed in the mind, though it be but an instant before the fatal shot is fired. It eliminates at one fell swoop the whole domain of voluntary manslaughter from the law of homicide. An instruction of similar import was strongly condemned in a recent case, that of McDonald v. State, 78 Miss. 369. Says Whitfield, C. J.: "This instruction pares away the rights of the defendant, and requires the jury to convict of murder, no matter what the provocation." The result in this instance is an attempt to charge the defendant to the gallows "by paring away by instructions, strained to the last point of legal tension, the rights of the defendant." We think the error in this instruction is more forcibly illustrated when taken in connection with the third instruction given in behalf of the state, and to a discussion of this third instruction we now ask the attention of the court.

We know not how to characterize it other than as vicious. We are aware of the fact that under certain circumstances a defendant may be estopped from pleading self-defense, but as long as it is recognized that self-preservation is the first law of nature, as long as even the worm of the dust will turn to sting the foot that crushes it, so long will it be, before courts can legally instruct juries, that defendants cannot plead self-defense, unless in such instructions the law is accurately followed. We suppose that the idea in the mind of the court in granting the instruction, and also in that of the attorney who drew it, was that if defendant armed himself with a gun, intending to use it in overcoming the deceased, and to kill him if necessary to do so, and that in pursuance of this intention he renewed the difficulty with the deceased for the purpose of provoking the deceased to make some overt act for which defendant could kill him, and that this was done, that under such circumstances defendant could not plead self-defense; but we submit that the instruction falls far short of the above requisite. The circumstances under which a defendant is not allowed to plead self-defense is most succinctly stated by Judge Whitfield in Patterson v. State, 75 Miss. 670, as follows: "If he had threatened Brinson's life, and determined to kill him, and, seeing him, went out with his loaded gun for the sole purpose of bringing on a difficulty, in order to get an opportunity to kill him, taking his gun for that purpose, and intending to use it if necessary to kill Brinson, of course he would be guilty of murder."

The idea expressed in the instruction is, that one is estopped from pleadingly self-defense, regardless of what may happen if at any time before the difficulty he arms himself with a shotgun, intending at the time of so arming himself to use it to overcome his adversary and kill him if need be. It will be observed that the instruction nowhere states, in order to constitute murder, that it was necessary that this intention on the part of the defendant should be carried out. The intention in the instruction relates only to the time of procuring the gun at the home of the defendant, about half a mile from the scene of the killing, and estops the defendant from pleading self-defense, even though at the time of the difficulty he had abandoned that intention, or abandoned it at any time during the difficulty. If this is the law, then it must follow that if one at the time he arms himself intends to use the weapon to overcome his adversary, and to kill him if necessary to do so, and thereafter repents or changes his mind, still if the difficulty is renewed under any circumstances, and he kills his adversary, regardless of whether it was done in self-defense or not, nevertheless he is guilty of murder. This is a doctrine which shocks human credulity. "It is not true that the right of self-defense can never arise at...