Moore v. State

• Decision Date: 29 May 1905
• Citation: 38 So. 504,86 Miss. 160
• Court: Mississippi Supreme Court
• Parties: DANIEL MOORE v. STATE OF MISSISSIPPI

38 So. 504

86 Miss. 160

DANIEL MOORE v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

May 29, 1905

FROM the circuit court of Lauderdale county, HON. ROBERT F COCHRAN, Judge.

Daniel Moore, the: appellant, was indicted and tried for the murder of one Ellis Poole; he was convicted of manslaughter sentenced to the penitentiary for twenty-five years, and appealed to the supreme court.

A statement of the facts other than the one found in the opinion of the court is unnecessary to an understanding of the decision.

Affirmed.

Thomas H. Woods, and Ethridge & McBeath, for appellant.

Upon what evidence was the jury justified in rendering a verdict of manslaughter? There is not an element of manslaughter in the case. The state's testimony, if believed, made out a case of pure and simple murder. If Moore was making threats as testified by witnesses, in the drug store before the killing; if he was seeking to annoy and make Poole provoke a difficulty, as testified by Driscoll and Saunders, in the barber shop just prior to the shooting for the purpose of killing Poole; if he went to Vinson's store and procured a pistol for the purpose of going back and renewing the difficulty with Poole, and stopped near the path in the old field for Poole to come along to shoot him; if he ran across the field hallooing "halt," and Poole threw his hands up and asked him not to shoot, and he shot Poole, as Vina Jordan, Kate Echols, and Walter Johnson say he did; if the shot that hit Poole was fired by the appellant while he Poole, was in the ditch, the appellant was guilty of murder--nothing more, nothing less. On the contrary, if Poole was smarting under some supposed or real wrong done him by the appellant, and was hunting the appellant for the purpose of provoking a difficulty on account of such wrongs; if he was threatening to kill or do Moore some great bodily harm, as Muse, Langford, Gibson, Collier, and George Gilmore testified, and went across the old field to where Moore was sitting and renewed the difficulty with Moore, and Moore backed away from him and tried to persuade Poole to settle the matter without trouble, and he made a demonstration as if to draw. a deadly weapon 86 Miss.--11 and do Moore some great bodily harm, or take his life, and if the shot that hit Poole was the first shot fired, Moore was justified in shooting, and he was entitled to an acquittal.

Instruction No. 3 is objectionable for several reasons. In the first place, the instruction starts out with an abstract proposition of law, and assumes that certain facts exist.

The court will readily see the effect and unjustness of this instruction. It assumes that Moore shot while still in the heat of passion. This instruction has been condemned by this and all courts. Brown v. State, 72 Miss. 997; Thompson v. State, 73 Miss. 584.

Again, the instruction is erroneous because it separates that portion of the evidence most damaging to appellant, and tells the jury if they believe these facts, he is guilty of manslaughter. Levy v. Holberg, 71 Miss. 66; Prime v. State, 73 Miss. 838; Burt v. State, 72 Miss. 408; Jackson v. State, 66 Miss. 89; French v. Sale, 63 Miss. 386.

It tells the jury that if they believe that "Poole cursed appellant for a son of a bitch, and Moore, while still in the heat of passion, shot and killed Poole," etc., he is guilty of manslaughter.

The fifth instruction given for the state is an attempt to do what has been condemned by the court in the case of Ellerbe v. State, 79 Miss. 10; Powers v. State, 74 Miss. 777 (21 So. 657). It is clearly an attempt to define a reasonable doubt. The jury may conscientiously believe from the evidence that defendant is guilty, and yet have a reasonable doubt as to such guilt. They are not told that "the evidence must satisfy their minds and conscience beyond a reasonable doubt," but are told "if after considering, comparing, and weighing all the evidence they conscientiously believe from all the evidence beyond a reasonable doubt that he is guilty, that is sufficient, and they should convict."

We do not think the instruction meets the approval of the court in the case of Burt v. State, 72 Miss. 408.

We submit that the sentence was a harsh one; that the instruction complained of above was wrong, and should be met and overthrown by this court. By sec. 28 of art. 3 of the constitution of this state forbidding the infliction of cruel and inhuman punishment it would appear to layman and lawyer alike that the trial court in the imposition of the sentence pronounced in this case subjected this young man to a punishment both cruel and unusual. Under the law of this state one may be punished by simple fine or by imprisonment in the county jail, and we submit to the best judgment of this appellate tribunal whether a sentence of twenty-five years in the penitentiary in view of all this record discloses is not cruel and unusual punishment.

Amis & Dunn, on the same side.

The first instruction for the state contains two propositions-first, a definition of the crime of murder, in the language of the statute; second, an attempted statement of such facts as under the law would warrant a jury in rendering a verdict of guilty.

The first proposition stated in the instruction is correct, but the second is incorrect, in so far as it deals with the question of self-defense. It tells the jury that "if the jury believe from the evidence . . . that the defendant's hot and killed the deceased, not in his necessary self-defense, and at a time when he was not in danger of loss of life or limb or great bodily harm at the hands of the defendant, . . . then he is guilty," etc.

This instruction incorrectly states the law of self-defense. By its terms it denies to defendant the right of self-defense, except on condition of the actual existence of actual danger to life or limb. The law is, that the danger may be real or apparent, and that if merely apparent it will justify the exercise of the right of self-defense. The instruction is fatally defective. See Goodwin v. State, 19 So. 712; Dyson v. State, 26 Miss. 362; Bang v. State, 60 Miss. 571; Code 1892, § 1152, paragraphs F and E.

The second instruction is fatally vicious. By it the jury are told that "if they believe . . . that defendant shot and killed Ellis Poole because he feared or apprehended an attack on the part of the said Poole, . . . then and in that case the court further charges the jury that mere fear of a human being . . . will not justify the defendant . . . in resorting to the use of a deadly weapon . . . if at the time of the very killing such party (deceased) was doing nothing nor attempting to do anything that would justify the apprehension," etc.

This is wrong. The law is that if at the time of, or immediately before, the firing of the fatal shot by the accused, the conduct and language of the deceased were such as to indicate a present design then and there to kill the accused or do him great bodily harm, then the accused was justified in anticipating the attack by firing first.

Before it springs upon its victim, the lion utters its roar. Before it leaps, the panther screams. When the hungry wolf scents blood, it howls. All men, aye, even the beasts of the field, know the meaning of these sounds. They know that it means bloodshed, and a present intent then and there to kill. Can it be that the language of a man who is angered to frenzy, and who stands over his intended victim and tells him that it is too late to run, that death or great harm awaits him, is not to be construed in the same way? That words, as well as acts, may be taken to indicate intent? Surely not. Yet the court tells the jury that defendant was not justified in using a deadly weapon unless the deceased did something, or was attempting to do something, which alone indicated danger. Surely such is not the law. Through all the ages language has been the means of communicating ideas among men, and when that language conveys a deadly meaning, and the attitude, appearance, and conduct of the person using it indicate danger and a present intent to execute such meaning, surely one may judge of the danger and its imminence in the light of the language used, as well as the conduct of the deceased. Yet the instruction makes the right to the exercise of self-defense depend alone on the degree of violence of the overt act.

Again, the instruction tells the jury that the deceased must have been doing something at the very instant of the killing that would alone justify the accused in apprehending present and impending danger to life or limb. Such is not the law. The law is that if immediately before the killing the conduct and language of accused indicated a present intent in his mind then and there to kill defendant or do him great bodily harm, then the accused was justified in firing the fatal shot. It was not necessary for defendant to wait until the deceased was on equal terms with him, but if the defendant, judging from the conduct and words of the deceased immediately before the killing, had reasonable cause to apprehend or believe that deceased intended then and there to kill him or do him great bodily harm; that it was not to be put off till another time, but was to be then and there executed; that there was no escape, except to flee or kill his adversary, then he was justified in the killing. Long v. State, 52 Miss. 23.; Bang v. State, 60 Miss. 571; Cotten v. State, 31 Miss. 504; Fortesberry v. State, 55 Miss. 403; Kendrick v. State, 55 Miss. 436.

The third instruction for the state tells the jury that if they "believe from the evidence in this case, beyond a reasonable doubt, that Ellis Poole cursed Ran Moore for a son of a bitch, and that Moore, while still under the heat of passion aroused by...