Prine v. State

• Decision Date: 13 April 1896
• Court: Mississippi Supreme Court
• Parties: J. H. PRINE v. THE STATE

19 So. 711

73 Miss. 838

J. H. PRINE v. THE STATE

Supreme Court of Mississippi

April 13, 1896

March 1896

FROM the circuit court of Lawrence county HON. W. P. CASSEDY Judge.

The appellant, J. H. Prine, was indicted and convicted of assault and battery with intent to kill and murder one G. I. Chaine. The difficulty occurred at a country schoolhouse, on Sunday afternoon, the school exercises appropriate to the day having just been concluded. There were a number of witnesses to the shooting, but their testimony is conflicting as to who was the aggressor. The material facts testified to by the state's witnesses are as follows: There had been bad feeling between the parties for some time, and, on the day of the difficulty, Chaine approached the group in which Prine was standing, and began to indulge in some puerile remarks to one of those present about a "little black moustache." Prine, who had had the bad taste to dye the slender adornment of his upper lip, took what was said as personally offensive and designed to ridicule him, and, in the heated colloquy that followed, said: "You came here to raise a row with me, and I can take you across my lap and spank you." Chaine slapped himself on the thigh, and responded: "Do it, and then talk about it." Prine advanced and kicked Chaine, "staggering" him back some eight or ten feet, and then drew his pistol, and, as Chaine was recovering from the kick, fired, striking him in the left breast, and then fired again. Chaine had turned around, and had his knife in his hand when the first shot was fired.

The evidence for the defense was that Chaine insulted Prine by innuendo through comments on his appearance, etc., to the bystanders, made in his hearing, and for the purpose of insulting him; that, when Prine kicked him, Chaine staggered back, and drew his knife, opened it, and was advancing on Prine, when the latter, after telling him to stand back fired twice, the second shot quickly following the first. There was some controversy as to which of the shots took effect. The opinion contains a further statement of the case.

The second, third, and fourth instructions given for the state are as follows:

"2. The court instructs the jury for the state that if they believe, from the evidence in this case, that defendant began the difficulty between himself and Chaine and pressed it until he kicked Chaine away from him, and then, while Chaine was turning around, defendant shot him, intending to kill him, they should find the defendant guilty as charged notwithstanding they may further believe, from the evidence that Chaine had turned toward Prine intending to advance on him, and did advance on him, with an open knife.

"3. The court further instructs the jury for the state that if they believe, from the evidence in this case, that Prine was the originator of the difficulty, and provoked and caused Chaine to advance on him with a knife, he had no right to shoot him, although he may have been in danger of suffering great bodily harm from Chaine at the time of the shooting. And if the jury believe, from the evidence, that Prine provoked Chaine to draw his knife and advance on him, and that, while so advancing, Prine shot him, intending to kill him, then he is guilty, and the jury should so find.

"4. The court instructs the jury for the state that if they believe, from the evidence in this case, that defendant, Prine, first approached Chaine by asking him if he came there to raise a row with him, when Chaine had not spoken to him, and said to Chaine that he could slap him over, and, if he wanted to fight he had better get his uncle to do his fighting, and that Chaine slapped himself on the thigh and said, 'Do it and then talk about it, ' and that Prine then kicked him and backed off, drawing his pistol, and, when Chaine had recovered from the kick and was turning around to face Prine, Prine shot him, then Prine is guilty as charged, notwithstanding the fact that Chaine was drawing his knife or had it out."

Defendant's motion for a new trial was overruled, and he appealed.

Reversed and remanded.

R. N. Miller, for appellant.

The second and third charges given for the state are fatally erroneous, because they omit the essential qualification that the provocation or beginning of the difficulty was, from the outset, "with intent to kill or do some serious bodily harm." The aggressor or provoker of a difficulty is only "outlawed"--cut off by estoppel from the plea of self-defense--on the single condition that he had the purpose to kill or do serious bodily harm, at the outset, and only provoked the difficulty to decoy his victim into demonstrations which would apparently justify the contemplated killing. This is the fundamental idea or reason for denying to the provoker of a difficulty the right of self-defense. Helm v. State, 67 Miss. 574; Cannon v. State, 57 Miss. 147; Allen v. State, 66 Miss. 385; Hunt v. State, 72 Miss. 418; Cotton v. State, 31 Miss. 504; Thomas v. State, 61 Miss. 60; Long v. State, 52 Miss. 23.

These two charges are further erroneous, because they single out the fact that, if Prine began or provoked the difficulty, he is guilty, even though he shot in...