Shubert v. The State

• Decision Date: 06 May 1889
• Citation: 66 Miss. 446,6 So. 238
• Court: Mississippi Supreme Court
• Parties: B. E. SHUBERT v. THE STATE

6 So. 238

66 Miss. 446

B. E. SHUBERT v. THE STATE

Supreme Court of Mississippi

May 6, 1889

April 1889

FROM the circuit court of Leflore county, HON. C. H. CAMPBELL Judge.

Appellant was indicted for the murder of James Smith, and was convicted of manslaughter. A special venire of thirty jurors was drawn and summoned, but the list of the venire served upon the prisoner with the copy of the indictment contained only twenty-nine names. On the trial the court proceeded to empanel a jury from the venire so drawn, and had obtained four jurors, when it appeared that the name of one person appearing on the venire was not upon the list furnished to the accused. Thereupon the defendant moved to quash the special venire because a true copy thereof had not been served upon him. This motion the court overruled, but set the juror aside and from the remainder of the venire completed the panel, the defendant having made use of but seven peremptory challenges.

The homicide occurred in the back room of a store, and in the presence of but two eye-witnesses other than the accused. The two witnesses were examined for the state and substantially agree in their testimony, which was to the following effect Witnesses were seated in company with deceased in the back room of the store, when the appellant came in and began a casual conversation about crops and the scarcity of laborers. The appellant made some remarks reflecting upon the "Farmers' Alliance," to which the deceased belonged, and this drew forth a contradiction from the latter, and a verbal altercation arose between them in which "the lie" passed, and deceased struck the accused knocking him down. Upon a remonstrance from one of the witnesses, he desisted and sat down. The appellant arose and put his hand into his pocket as if to draw a weapon whereupon the deceased arose and seized a shovel and told him, "if you draw a pistol I will split your head open." Shubert replied, "I haven't any pistol, and wasn't thinking of drawing any on you." Smith then resumed his seat, and the witnesses supposed the difficulty was ended, but appellant endeavored to talk further about the matter, and Smith told him, "You are drinking, and I don't want to be bothered by you," and ordered him to leave the house. Appellant then drew a pistol from his pocket, and, calling to witnesses to stand back, fired at deceased, the ball taking effect in the forehead and producing death. A second shot from the accused was fired, but owing to the seizure by a witness of his arm, the ball went upward into the ceiling.

The defendant testified for himself, and swore that he shot Smith while the latter was advancing upon him with a chair drawn to strike him. It was proven that the defendant was at the time somewhat under the influence of liquor.

The court gave twelve instructions asked for by the state, among which was the following:

10. "The court instructs the jury, as a matter of law, that the doubt which the juror is allowed to retain on his own mind, and under the influence of which he should frame a verdict of not guilty, must always be a reasonable one. A doubt produced by undue sensibility ill the mind of any juror in view of the consequences of his verdict, is not a reasonable one, and a juror is not allowed to create sources or materials of doubt by resorting to trivial and fanciful suppositions and remote conjectures as to possible state of facts, differing from that established by the evidence. You are not at liberty to disbelieve as jurors if you believe as men. Your oaths impose on you no obligation to doubt, where no doubt would exist if no oath had been administered."

The court refused the following instructions asked by the defendant:

7. "That if the jury, from the evidence in this case believe that Smith, immediately preceding the shooting, provoked and brought on a difficulty with Shubert, and made such hostile demonstration by acts and conduct as reasonably led Shubert to believe, situated as he then was, and that he did so believe, that Smith intended at once to assault him with a chair, which in his hands was means and force likely, when used by him, to produce great bodily injury upon Shubert, then he was not bound to wait until such assault was actually committed, but he had a right to anticipate such assault, and use such means as was apparently necessary to prevent the infliction upon himself of great personal injury if...