Molphus v. State

• Court: Mississippi Supreme Court
• Writing for the Court: ETHRIDGE, J.
• Citation: Molphus v. State, 124 Miss. 584, 87 So. 133 (Miss. 1921)
• Decision Date: 21 February 1921
• Docket Number: 21375
• Parties: MOLPHUS v. STATE

87 So. 133

124 Miss. 584

MOLPHUS v. STATE

No. 21375

Supreme Court of Mississippi

February 21, 1921

APPEAL from circuit court of Neshoba county, HON. A. J. MCLAURIN Judge.

Pet Molphus was convicted of murder, and he appeals. Affirmed.

Judgment affirmed.

Earl Richardson, M. W. Reily, Paul Dees, Clayton D. Potter and Robert B. Mayes, for appellant.

The whole question to be determined by the jury in this case was who was the aggressor in this difficulty and it was certainly a material fact in appellant's favor that he made overtures for peace and that these overtures were rejected by Mr. Owen.

Under the circumstances, we contend that it was very important and material to appellant's case to show that he had made overtures for peace, and that he had done his best to avoid trouble. Not only is this rational, but this same view is supported by all the authority on the subject. 21 Cyc., page 899; Shaver v. State of Texas, 60 S.W. 249; Everett v. Taylor, 30 Texas App. 682, 18 S.W. 674; Butler v. Texas, 33 Texas App. 233, 26 S.W. 20, 58 S.W. 107.

The court erred in refusing instruction No. 3 asked for by the appellant. That instruction is as follows: "The court instructs the jury for the defendant that the jury should accept as an established fact that Mr. Owen threatened the life of the defendant and that the defendant was advised of the threats made by Mr. Owen."

To the extent that the appellee had threatened the life of the defendant, the defendant's case was absolutely established, and to that extent he was entitled to the peremptory instruction. The court also was in error in refusing instruction No. 2, which is as follows: "The court instructs the jury for the defendant that the defendant had a right to carry a pistol to protect himself from loss of life or great bodily harm at the hands of Mr. Owen, providing the jury believe that the defendant reasonably believed that there was danger of such threats being executed."

It is true that the defendant received the following instruction "The court charges the jury at the request of the defendant that under the law a man is justifiable in carrying a concealed weapon if his life has been threatened and he has a good and sufficient reason to apprehend a serious attack from an enemy, and if you believe from the testimony in this case that Molphus' life had been threatened and he had reasons to apprehend a serious attack, then he was justified in carrying a pistol."

But the appellant in this case had a right to an instruction with reference to the concrete facts in the case, and we submit that the instruction given is couched in such general terms that the error in refusing to give the instruction above set out is not cured by the granting of the general instruction.

The court erred in refusing the appellant the following instruction. "The court instructs the jury for the defendant that when a man threatens the life of another, he puts himself in a position where he whose life has been threatened has the right to kill him upon the first appearance of danger providing the party threatened reasonably believed at the time of the killing that there was eminent danger of his losing his life at the hands of him who has threatened him, and in deciding whether the party threatened so reasonably believed, the jury should consider the fact that his life had been threatened."

The above instruction is a correct announcement of the law and on a very important point for the appellant, and is not covered by any other instruction in the case. Fortenberry v State, 55 Miss. 409.

The sixth instruction for the state as shown in the amended record in this case, and generally agreed upon as correct by both the district attorney, the county attorney on one side and the attorneys for Pet Molphus on the other, was as follows: "The court charges the jury for the state that mere threats alone will not justify one person in taking the life of another, even though the jury may believe from the evidence that deceased threatened the life of defendant, Pet Molphus, and that the threats were communicated to him, this alone would not justify the defendant in taking the life of deceased, unless you further believe from the evidence that at the time defendant shot the deceased he, the deceased, was making some overt act toward defendant."

This instruction tells the jury that unless they believe from the evidence that at the time the defendant shot the deceased, he, the deceased, was making some overt act toward the defendant, that mere threats, etc., would not justify one person in taking the life of another. This instruction is incorrect because the meaning of overt act as known in the criminal law is some demonstration or open act done in pursuance of a criminal design. Webster's International Dictionary defines an overt act, as follows: "In criminal law an overt act is an open act done in pursuance and manifestation of a criminal design."

Pope's Legal Definition and Black's Legal Definition both give the definition of an overt act as follows: "An overt act in criminal law is an open act from which criminality can be implied, citing People v. Bloomenberry, 199 Ill.App. 128. An overt act is one done to carry out the intention and it must be such as would naturally affect that result unless prevented by some extraneous cause. People v. Mills, 66 L. R. A. 136.

The whole idea of an overt act, or an open act, as known in the criminal law, is some open act in furtherance of some preconceived criminal design. In this case it is true that if the jury believed that the deceased made an overt act, that is, had attempted by some open act to carry out his threat, that the defendant should have been acquitted, but on the other hand, mere threats are not sufficient alone to justify an acquittal, yet, nevertheless the threats having been made and the appellant's mind in such state that he feared the deceased, the jury might have believed that he had a reasonable apprehension of great bodily harm, even if the deceased had only thrown his hand back to get a handkerchief, or for some other innocent purpose. If the decedent had innocently thrown his hand back to his pocket in order to get his handkerchief or some other article, or if he had thrown his hand back of him in an effort to rise from the floor on which he was sitting, under the circumstances in this case the jury might have inferred that the appellant in this case reasonably believed these innocent acts on the part of the deceased were hostile demonstrations. Yet it is not an overt act as shown in the criminal law for one to throw his hand behind him without a guilty purpose. The giving of this instruction took away from the jury the right to consider the reasonableness of appellant's apprehension that he was in great danger.

It may be answered, however, that this instruction is cured by other instructions in the case, but it is a well-settled rule of law that where an instruction attempts to set out the facts and to state that, on the facts stated, certain legal conclusions will follow, such instructions are not cured by other instructions correctly stating the law, but the jury being instructed two different ways as to what facts constitute the case at law, are thereby made the judges of the law, and under our system of laws the jury is the trier of facts and not of law. It is true that where abstract principles of law are laid down in instructions and necessarily parts omitted in one instruction but supplied in another, that the instructions correctly stating the law are declared correct notwithstanding the fact that a particular instruction may not be full enough, but this is not so where an instruction attempts to set out the concrete facts and to evolve a legal conclusion therefrom. Harper v. State, 83 Miss. 418; Hawthorne v. State, 59 Miss 778; Collins v. State, 71 Miss. 691, 15 So. 42; Josephine v. State, 39 Miss. 647; Owens v. State, 80 Miss. 499, 32 So. 152.

In this case the jury were told in substance that unless the deceased was attempting to carry out his threat to kill the appellant, that he was not justified in taking the life of the deceased, and this is not the case because after all the threats had been made, the jury might have determined under proper instructions that an innocent act, such as throwing his hand back of him in reaching for a handkerchief, or throwing it back to arise from the floor on which he was sitting, caused the appellant to have a reasonable apprehension that his life was in great danger and to justify under the circumstances the killing.

H. Cassedy Holden, Special Assistant Attorney-General, for the state.

No Error in Refusal of Instructions. The appellant complains that the court erred in refusing each and everyone of the instructions asked by the defendant and marked refused, but particularly the following instruction: "The court instructs the jury for the defendant that the jury should accept as an established fact that Mr. Owen threatened the life of the defendant and that the defendant was advised of the threats made by Mr. Owen."

The court committed no error in refusing to grant this instruction. The jury had the right to reject all the testimony as to threats and to disbelieve it if they saw fit to do so. It is true that testimony as to threats was admitted and was uncontroverted. Nevertheless it was within the province of the jury to weigh this testimony and to believe it or disbelieve it. The trial court is not empowered to take from the jury this right to pass upon the credibility of witnesses.

But even had this instruction been granted by the court, it would have had no effect upon the jury in view of the fact that fully sufficient instructions had already been granted the defendant...