McMillan v. State

• Decision Date: 09 April 1945
• Docket Number: 35793.
• Citation: 198 Miss. 179,21 So.2d 586
• Court: Mississippi Supreme Court
• Parties: McMILLAN v. STATE.

21 So.2d 586

198 Miss. 179

McMILLAN v. STATE.

No. 35793.

Supreme Court of Mississippi

April 9, 1945

Morgan & Thornton, of Kosciusko, for appellant.

Greek L. Rice, Atty. Gen., and R. O. Arrington Asst. Atty. Gen., for appellee.

L. A. SMITH, SR., Justice.

Appellant was convicted, in the Circuit Court of Attala County, of manslaughter on an indictment for murder of Mose Lewis another negro. From that conviction and judgment he appeals and assigns two errors: (1) Refusing an instruction requested by appellant, hereinafter set out; (2) refusing appellant's motion for a directed verdict in his favor.

The verdict of the jury was reached on conflicting testimony. It would serve no useful purpose to set it out here, but suffice it to say, in our judgment, appellant was fortunate the jury did not convict him of murder, which would have been justified by the evidence. In view of the conflicting nature of the evidence, we think the court below was correct in overruling the motion for a directed verdict of acquittal, as conflicting evidence presents a question for decision by the jury. Ransom et al. v. State, 149 Miss. 262, 115 So 208; Byrd v. State, 154 Miss. 742, 123 So. 867; Carter v. State, 140 Miss. 265, 105 So. 514; Sullivan v. State, Miss., 192 So. 441, and many others.

Appellant complains of the refusal to give him this instruction: 'That while no man has the right to take the law in his own hands to avenge grievances either real or imaginary that have been inflicted on a member of his family or himself, yet the court tells you that the defendant did not violate this wise principle of law if after learning that his wife had gone way from his home and that deceased aided and abetted her in leaving his household or the household of Nathan Hill and that he sought the deceased for explanation and for a peaceful understanding of the matter or for the purpose of inquiring about the whereabouts of his wife, and in seeking this end that he with the lights before him had a perfect right to arm himself, not with the intention of provoking a difficulty with the deceased, but to protect himself if necessary in self-defense. Therefore, if you believe from the evidence in this case or if there is any reasonable doubt arising from the evidence or from the want of evidence that Lloyd McMillan armed himself for his own protection only and went on a peaceful mission to the home of Mose Lewis, the deceased, for the purpose of making inquiry about his wife, then you are instructed that he had a right to go to the home of deceased and to carry a deadly weapon with him on said mission.'

An examination of the case of Echols v. State, 99 Miss 683, 55 So. 485, reveals that this instruction was formulated from discussion by the court, and is so colored as an abstract proposition, as to come within...