Molphus v. State.

• Decision Date: 01 January 1920
• Docket Number: 21375
• Citation: 87 So. 113,124 Miss. 584
• Court: Mississippi Supreme Court
• Parties: Molphus v. State.

87 So. 113

124 Miss. 584

Molphus v. State.

No. 21375

Supreme Court of Mississippi

January 1, 1920

1. CRIMINAL LAW. Witnesses. Instruction that jury must accept evidence of threats as true properly refused; rule as to disregarding testimony of witness swearing falsely applies to defendant's witnesses.

The jury being the sole judge of the credibility of the witness it is not error for the court to refuse to instruct them that they must accept as true evidence as to threats. This is especially true where the witness testifying to threats are contradicted as to other material facts in evidence.

2. CRIMINAL LAW. Homicide. Instruction as to right of defendant to carry concealed weapon properly refused.

In the trial of a person for the killing of a human being, the lawfulness of carrying a weapon concealed is not involved and the court may refuse to instruct the jury that, if threats were made against the accused, he had a right to carry concealed the weapon with which the killing was done. In such case, where the accused has gotten an instruction in general terms that he has such right in such case, it is not error to refuse an instruction applying to the concrete facts of the case.

3 HOMICIDE. Person whose life has been threatened cannot kill unless there is demonstration inducing reasonable man to believe that there is danger; instruction that there is right to kill on first appearance of danger properly refused.

It is not error for the court to refuse to instruct the jury for the defendant that, where a person's life had been threatened by another, the person whose life was threatened had a right to kill on the first appearance of danger provided he reasonably believed at the time of the killing there was imminent danger of losing his life, and this is especially true where the court has given the law in charge as to apparent danger and as to the right to act on appearances where threats had been made.

4. HOMICIDE. Instruction that to justify shooting on apprehension of threats deceased must have made overt act is proper.

Where a person is on trial for a homicide and relies upon threats made and communicated to him as justifying the killing on the theory of apparent danger, it is not error to instruct, at the request of the State, that to justify a shooting on apprehension of threats the deceased must have made some overt act toward accused.

5. CRIMINAL LAW. Defendant's overtures for peace inadmissible when made long before killling.

Evidence of overtures for peace made by the defendant prior to and not connected with the killing, but made so long prior thereto as not to be in effect a part of the transaction terminating in the homicide, are not admissible in evidence. Such overtures are not admissible unless they be either a part of the res gestae or so closely related to the time of the killing as to make it practically a part of the killing.

HON. A. J. McLAURIN, Judge.

Pet Molphus was convicted of murder, and he appeals. 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 cerrying 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 attenpts to set out the facts and to state that, on the facts stated,...