Rogers v. State

• Decision Date: 18 May 1903
• Citation: 82 Miss. 479,34 So. 320
• Court: Mississippi Supreme Court
• Parties: HENRY H. ROGERS v. STATE OF MISSISSIPPI

34 So. 320

82 Miss. 479

HENRY H. ROGERS v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

May 18, 1903

FROM the circuit court of Neshoba county. HON. GUION Q. HALL Judge.

Rogers appellant, was indicted, tried and convicted of the murder of Thomas A. Byrd, and sentenced to the penitentiary for life from which conviction and sentence he appealed to the supreme court. The facts are sufficiently stated in the opinion of the court.

Reversed and remanded.

Southworth & Hughston and S. A. Witherspoon, for appellant.

There is no element of malice in any of the facts alleged in the instruction. The parties could have armed themselves, as stated, for a lawful purpose. It is not unlawful for parties who have trouble to arm themselves for the purpose of facing each other unless their purpose, in arming themselves, is to use their weapons in the meeting to overcome their adversaries. Defendant may have armed himself for the purpose of defending himself from a threatened attack; he may have armed himself out of abundant caution, with no intention of using the weapon except in necessary defense of his life and limb; and no court can gainsay this right. Yet this instruction tells the jury to find defendant guilty of murder, if, under the circumstances, he shot and killed Byrd, whatever may have been the intent and purpose in arming himself, or whatever may have been the necessity which prompted him to take life, or whether the taking of the life was pursuant to a design previously formed. The court in giving this instruction must have had in mind the law against duelling or mutual combats, but the instruction fails to state the essential ingredients of mutual combats.

The weapon must not only be secured for a meeting, but it must be procured for a combat in which he intended to use it to overcome his adversary if necessary. Long v. State, 52 Miss. 23; Prince v. State, 73 Miss. 838; Lofton v. State, 79 Miss. 723.

Again, there is no evidence that there had been any trouble or misunderstanding between Byrd and Rodgers prior to that meeting.

The second instruction for the state is misleading. It fails to state the essential ingredients of murder.

The killing must be pursuant to a previous design to kill to constitute murder, and that intent must not be abandoned at any time before the killing. Long v. State, 52 Miss. 23; Prine v. State, 73 Miss. 838; Fore v. State, 75 Miss. 727; Patterson v. State, 75 Miss. 670; Pulpus v. State, Mss. April 6, 1903.

J. N. Flowers, assistant attorney general, and Woods, Fewell & Fewell, for appellee.

The "duel instruction" cannot possibly have done the acused any harm. It is an attempt to define a duel and to announce the law of the case as declared in Thomas v. State, 61 Miss. 60. But there were eight other instructions given for the state and eighteen instructions given for the defense, and considered as a whole, they are correct and not even calculated to mislead the most unlearned of juries.

It is to be said that the word "duel" cannot be found in the instruction. It was a simple charge upon the law where two men agree to face each other about an angry and irreconcilable dispute, and arm themselves for the meeting, and do accordingly meet armed and with their hands upon the weapons during the meeting, and one draws and kills the other. Is it not the law that a killing under such circumstances is murder?

Argued orally by S. J. Witherspoon, for appellant.

OPINION

PRICE, J.

The grand jury of Neoshoba county, March 8, 1902, indicted H. H. Rogers for the murder of Thomas A. Byrd, and on December 23, 1902, he was tried, convicted, and sentenced to life imprisonment; and the case is here on appeal, with a record challenged by the defendant with forty-four assignments of error. We will consider but one of the numerous errors assigned, in so far as it relates to two charges given for the state --Nos. 2 and 5.

Charge No. 2 is in the following language: "If the jury shall believe from the evidence, beyond all reasonable doubt, that in the difficulty in which Byrd lost his life, that the defendant was the aggressor and...