Patterson v. State

• Decision Date: 23 February 1931
• Docket Number: 29291
• Citation: 132 So. 558,159 Miss. 882
• Court: Mississippi Supreme Court
• Parties: PATTERSON v. STATE

132 So. 558

159 Miss. 882

PATTERSON v. STATE

No. 29291

Supreme Court of Mississippi

February 23, 1931

Division B

APPEAL from circuit court of Chickasaw county, First district, HON T. E. PEGRAM, Judge.

W. C Patterson was convicted of an offense, and he appeals. Affirmed.

Affirmed.

Rush H Knox, of Jackson, for appellant.

Appellant submits that the court committed fatal error and reversible error in granting instruction No. 9 on behalf of the state, which said instruction is as follows:

The court charges the jury for the state that if you believe from the evidence in this case beyond a reasonable doubt that the defendant and Bray and Huffman armed themselves and by agreement among them, or any two of them, went out seeking the deceased for the purpose of killing him or doing him some great bodily harm, the deceased had a perfect right to defend himself and to use such force as was reasonably necessary to protect his wife and person from such attack, and the defendant and Huffman and Bray had no right to shoot deceased and kill him to overcome deceased's efforts to defend and protect himself against such attack, and in doing so their said act in so shooting and killing deceased was not lawful self-defense; and if you believe from the evidence beyond a reasonable doubt that defendant and Bray and Huffman, or either or any of them did so shoot and kill the deceased to overcome the reasonable efforts of the deceased to defend and protect himself against their said attempt and kill him, or otherwise do him great bodily harm, then the defendant is guilty of murder in such killing and the jury should so find even though the jury may further believe from the evidence that the deceased then and there undertook to use his pistol to so defend and protect himself against such dangerous attack.

Murphy case, 129 Miss. 634, 92 So. 694; Rich v. State, 86 So. 770, 124 Miss. 272; Harper v. State, 83 Miss. 402, 35 So. 572; Kearney v. State, 68 Miss. 239, 8 So. 292; Hunter v. State, 74 Miss. 519, 21 So. 305; Jackson v. State, 79 Miss. 45, 30 So. 39; Lofton v. State, 79 Miss. 723, 31 So. 420; Woods v. State. 81 Miss. 165, 32 So. 998; Thames v. State (Miss.), 35 So. 171; Pulpus v. State, 82 Miss. 548, 34 So. 2; Jackson v. State, 79 Miss. 45, 30 So. 39; Hunter v. State, 74 Miss. 519, 21 So. 305; Kearney v. State, 68 Miss. 239, 8 So. 292; Harper v. State, 83 Miss. 402, 35 So. 572.

C. A. Bratton, of Pontotoc, for appellant.

Instructions 9 and 10 given on behalf of the state were erroneous.

This instruction No. 9 is fatally defective; in that it says, "if there was a conspiracy between the defendant, Bray and Huffman, or any two of them, then the defendant is guilty as charged."

Can it be the law that where two men conspire together to do an unlawful act, then the third man is guilty, even though he had no part in the conspiracy? If that should be the law, it would cut the defendant off entirely from the right of self-defense, which is one of our constitutional guarantees.

W. A. Shipman, Assistant Attorney-General, for the state.

When we come to examine all of the facts, circumstances and actions of the three, proof of the conspiracy is as firmly established as is the rising and setting of the sun. The conspiracy being thus established, instruction No. 9 is not objectionable.

As to instruction number nine given for the state, it is submitted that even though the court should hold that the parenthetical clause therein "or any two of them" constituted technical error, still it is not fatal or reversible error. All the instructions, both for the state and the accused, are to be taken together and construed as an entirety, one complete instruction. The error, if error it be, caused by the insertion of the above quoted modifying clause in number nine is cured by instructions number 20 and 21 for the appellant.

Instruction number 21 for the appellant told the jury that the presumption of law is that there was no conspiracy between Patterson, Bray and Huffman to take the life of D. A. Box or to do any other unlawful act, that the conspiracy must be proved like any other controverted fact, that unless the jury believed from all the testimony in the case beyond a reasonable doubt that Patterson, Bray and Huffman, or any two of them, actually entered into an agreement between themselves to take the life of Box, then no conspiracy had been proved.

Argued orally by Rush H. Knox, and Carl...