Moore v. State

• Decision Date: 08 November 1926
• Docket Number: 25957
• Citation: 110 So. 216,144 Miss. 649
• Court: Mississippi Supreme Court
• Parties: MOORE v. STATE. [*]

110 So. 216

144 Miss. 649

MOORE v. STATE. ^[*]

No. 25957

Supreme Court of Mississippi

November 8, 1926

(Division B.)

1. CRIMINAL LAW. Where all facts of killing were fully testified to, refusal of continuance because of absence of sick witness, whose evidence would only go to show effect of blows and threats by deceased, was not error.

A motion for a continuance on the ground of an absent sick witness, where the character of the killing is witnessed by numerous people, may be overruled where the evidence of the absent witness would only go to show the effect of blows on the accused and of threats by the deceased where all the facts of the killing are fully testified to by the witnesses in attendance.

2. CRIMINAL LAW. Charge that defendant, though smaller and older than deceased and beaten without excuse, was not justified in taking life, held not erroneous, in view of instructions as to right to defend if in danger of life or great bodily harm.

It is not error to charge the jury for the state that the mere fact that the defendant was a smaller man than the deceased, of less powerful build and proportion, and of greater years, and was assaulted by the deceased with his fists and feet at the time of the fatal difficulty, and was being beaten without excuse or provocation, does not and cannot in law excuse or justify the taking of the life of the deceased. This is especially true where instructions for the defendant informed the jury that the defendant had the right to use a weapon where blows by fists and feet endangered his life or was likely to cause great bodily harm.

Division B

APPEAL from circuit court of Attala county.

HON. W W. MAGRUDER, special judge, R. S. Moore appeals. Affirmed.

Judgment affirmed.

Allen & Morgan, for appellant.

I. The court should have granted a continuance on the showing made. The testimony of Mrs. Mary Moore, the wife of the appellant, was very material. It was absolutely impossible to show the facts as set out in the application by any other witness and the record fully discloses the fact that this was not shown. The theory of the state was to the effect that Moore, the appellant, was the aggressor; and while the record shows almost conclusively that he was not, yet the testimony of Misses Myrtle Brent and Lillian Burt would have shown that Hogue was harboring a secret grudge against the appellant. This testimony was certainly material for the appellant to prove in order to show conclusively that Hogue, the deceased, was the aggressor.

If these facts were material for his defense, then the court under section 567, Hemingway's Code, abused its authority and deprived the appellant of his lawful rights. Vollm v. State, 51 So. 275; Brooks v. State, 67 So. 53.

II. The instruction complained of is a peremptory charge for the state, and the instructions of the defendant cannot cure the fatal error. Now what does this instruction say? The mere fact that defendant was being beaten by the deceased with his hands and feet, without excuse of provocation, cannot, does not, excuse or justify the defendant in taking the life of the deceased, although smaller, older and of less powerful build than the deceased.

This instruction simply says that the instructions on pages 236 and 237 cannot be the law, and are in conflict with the law, and tells this jury that if the defendant killed the deceased who was unarmed that he cannot excuse himself at law for having done so. This instruction nullifies and destroys the only defense the defendant had.

Give one party fifty instructions on the law, and give the other one instruction on the facts and that a peremptory, and who wins? Juries do not frequently disregard the direct peremptory charge of the court.

J. A. Lauderdale, Assistant Attorney-General for the state.

I. The motion for a continuance. The facts which movant alleged the witness would testify to were immaterial and would have been merely cumulative. There is practically no conflict in the testimony as to the number of times that Hogue struck him, and the testimony for the state shows that these blows were very severe. All of the facts at the time of the difficulty being in the testimony, the condition of Moore afterwards was immaterial.

The defendant introduced several eye-witnesses who testified to everything done by both parties from the time the first word was spoken until the men were separated. There was a large crowd present and the defendant no doubt could have obtained other eye-witnesses if he had seen fit to do so. The complete file shows that the trial court was correct in overruling the motion.

II. Instruction No. 3 for the state. This instruction informed the jury that the fact that the deceased was physically able to whip the defendant and was whipping or beating him at the time would not justify Moore in using a deadly weapon. This is a very correct statement of the law. Waldrop v. State, 98 Miss. 567.

The defendant requested and obtained three instructions that presented the theory of the defendant to the jury. These instructions for the state and those for the defendant, either singly or together, correctly state the law as applied to the facts in this case and the theories of the state and the defendant. Hill v State, 97 Miss. 304; Waldrop v. State, supra. The judgment of the trial court should be affirmed.

Argued orally by C. E. Morgan, for appellant, and J. A. Lauderdale Assistant Attorney-General for the state.

OPINION

ETHRIDGE, J.

The appellant was indicted for manslaughter growing out of the killing of one R. L. Hogue on the school grounds in Attala county, Miss., where there was a contest between the Agricultural High School, of Leake county, and the Ethel public school, of Attala county, over a game of basket ball. It appears that the boys of the two schools had played a contest during which there had been a good deal of what is called "ragging" the referee of the said game. After this game between the boys was concluded, the deceased who was principal of the Ethel school, came out on the court and announced to the people assembled that there would be another game shortly between the girls of the two schools, and requested the people not to "rag" the referee, but to be quiet and courteous during the game. He stated that it was not right to treat the referee as he had been treated in the former game, whereupon the appellant said, "I 'ragged' the referee, Professor," to which the deceased replied, "I know you did, and I don't appreciate it; I wish you would either be quiet at the games or stay away from them" (or words to that effect), whereupon the appellant replied that he would go where he pleased, and the deceased said, "Yes, I will put you away." The appellant then advanced upon the deceased and told him to "put him away" then. The deceased struck the appellant with his fist over the eye, inflicting a wound from which the blood flowed freely. This blow knocked the appellant some six or eight feet away, and he drew his knife and returned to the deceased, who again struck him. They grappled, or clenched, and during this...