Regan v. State

• Decision Date: 12 February 1906
• Citation: 39 So. 1002,87 Miss. 422
• Court: Mississippi Supreme Court
• Parties: J. EDWARD REGAN v. STATE OF MISSISSIPPI

39 So. 1002

87 Miss. 422

J. EDWARD REGAN v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

February 12, 1906

FROM the circuit court of Claiborne county, HON. OLIVER W CATCHINGS, Judge.

Regan the appellant, was indicted and tried for and convicted of the murder of one Moody; was sentenced to be hanged, and appealed therefrom to the supreme court.

The record shows that the court below, on the hearing of the motion for a change of venue, examined a large number of witnesses, and, after hearing their testimony, overruled the motion.

The instructions asked by defendant which the court refused to give are as follows:

"(10) The court instructs the jury for defendant that if they believe from the evidence that when Moody met Regan at Anderson's old store he stopped his horse; that Regan walked around to his side and asked him if he had called him a son of a bitch and had said that he (Moody) intended to kill him (Regan) ; and that thereupon Moody immediately answered, 'Yes, you damned son of a bitch, I intend to kill you,' and accompanied such reply with a movement showing purpose to leap from his horse on Regan, and made a motion of his hand as if to draw a deadly weapon--then Regan had a right to act at once in self-defense, even if it afterwards appeared that Moody had no deadly weapon on his person. If they further believe from the evidence that Regan shot Moody in the back under such state of facts, and after they had been scuffling, while Moody was turning to run or was actually running, deliberation is not, in the nature of things, predicable of Regan in such a situation, and they should acquit Regan, even though they believe from the evidence Regan shot Moody in the back while he was turning to run or was actually running. . . .

"(13) The court instructs the jury that they may conscientiously believe that Regan is guilty, yet may not believe it beyond a reasonable doubt; and if they do not believe from the evidence beyond a reasonable doubt, they should acquit notwithstanding they conscientiously believe him guilty aside from the evidence."

The ninth instruction asked by defendant was modified by the court, and as modified, the modification being indicated by italics, is as follows:

"(9) The court instructs the jury for defendant that, if they believe from the evidence Moody had made threats and preparation indicating a purpose to commit an assault upon Regan, with intent to kill him or to do him some great bodily harm; or if they believe from the evidence Moody and Shannon had been conspiring together for such purpose, and, having done so, either one of them made threats manifesting a purpose to commit an assault upon Regan, with intent to kill him or to do him some great bodily harm, and that part of such threats had been communicated to Regan and part had not then Regan had a lawful right to arm himself in anticipation of such assault; and if they further believe from the evidence that he and Shannon had entered upon a common purpose to kill Regan or to do him some great bodily harm, and that they met in Smith's store, obtained and prepared cartridges, and secured deadly weapons with such design, and that such preparations were made known to Regan, then Regan was not bound, when he and Moody met, to wait until Moody got upon equal terms with himself before he could lawfully slay him. If, then, the jury believe from the evidence that Moody and Shannon had an altercation with Regan in the morning; that they went to Smith's store, got a shotgun or other deadly weapon, cut cartridges and put them in a breech-loading shotgun, placed such gun on the counter, and declared a purpose to kill Regan or to do him some great bodily harm; that afterwards, in the evening of the same day, Regan and Moody met, on the walk leading from Regan's residence towards the depot; that Regan asked Moody why he was cursing him and threatening to kill him, and that Moody then reiterated a purpose so to do, at the same time manifesting a purpose by conduct and gesture so to do, or apparently manifested such purpose, the same then being imminent and impending, or apparently so to Regan; and that by reason of the belief engendered in Regan's mind that his life was in danger, and to defend himself, he shot and killed the deceased--then they should acquit Regan, even though they believe from the evidence Moody actually had no deadly weapon of any kind on his person."

The fourteenth instruction asked by defendant was also modified by the court, and as modified, the modification being indicated by italics, is as follows:

"(14) The court instructs the jury for defendant that if they believe from the evidence that when Moody met Regan at Anderson's old store he stopped his horse; that Regan walked around to his side and asked him if he had called him a son of a bitch and had said that he (Moody) intended to kill him (Regan) ; and that thereupon Moody immediately answered, 'Yes, you damned son of a bitch, I intend to kill you,' and accompanied such reply with a movement showing purpose to leap from his horse upon Regan, and made a motion of his hand as if to draw a deadly weapon, and did actually so leap from his horse--then Regan had a right to act at once if, circumstanced as he was, the jury believe from the evidence he had reasonable grounds to believe, and did believe, that his life was in peril, or he was in peril of great bodily harm, even if it afterwards appeared that Moody had no deadly weapon on his person, and even if they further believe from the evidence that Regan shot Moody in the back after they had been scuffling, while he was turning to run and was actually running, provided they further believe from the evidence that under the circumstances Regan had reasonable grounds to believe, and did believe, that it was necessary to so shoot Moody in the back to protect himself from great bodily harm."

Affirmed.

J. MCC. Martin, for appellant.

Counsel cited the following authorities: Lee v. State, 45 Miss. 114; Welch v. State, 68 Miss. 341 (S.C., 8 So 673); Beasley v. State, 64 Miss. 518 (S.C., 8 So. 234); Bang v. State, 60 Miss. 571; Kendrick v. State, 55 Miss. 447; Com. v. Baldwin, 129 Mass. 481; Roberson v. State, 123 Ala. 26; Long v. State, 81 Miss. 448 (S.C., 33 So. 224); Broznack v. State, 109 Ga. 514; Raggio v. People, 135 Ill. 533; Jackson v. State, 116 Ind. 464; People v. Dane, 59 Mich. 550 (26 N.W. 781); Bassette v. State, 101 Ind. 85; People v. Ecarius, 124 Mich. 616; People v. Mull, 167 N.Y. 247; People v. Lechuck, 78 Cal. 317; State v. Irwin, 71 P. 608; People v. Carr, 31 N.W. 590; People v. Derbert, 138 Cal. 467.

R. V. Fletcher, assistant attorney-general, for appellee.

Counsel cited the following authorities: Posey v. State, 86 Miss. 141 (S.C., 38 So. 324); Code 1892, §§ 2375, 2389; Story v. State, 68 Miss. 609; (S.C., 10 So 47); Lee v. State, 45 Miss. 114; Dillard v. State, 58 Miss. 368; Joyce v. Com., 78 Va. 287; Waller v. Com., 84 Va. 492; Frank v. Avery, 21 Wis. 168; State v. Reno, 41 Kan. 674; Bang v. State, 60 Miss. 571; Parker v. State, 55 Miss. 414; Kendrick v. State, 55 Miss. 436; Cartwright v. State, 71 Miss. 82 (S.C., 14 So. 526); Cavanah v. State, 56 Miss. 299; Lamar v. State, 65 Miss. 93 (S.C., 3 So. 78); Hemingway v. State, 68 Miss. 371 (S.C., 8 So. 317); East St. Louis Connecting R. Co. v. O'Hara, 150 Ill. 580; Prather v. Clelland, 28 S.W. 94; State v. Mallon, 75 Mo. 355; Baldt v. State, 35...