Smith v. State

• Decision Date: 07 February 1898
• Citation: 23 So. 260,75 Miss. 542
• Court: Mississippi Supreme Court
• Parties: WALLACE SMITH v. THE STATE OF MISSISSIPPI

23 So. 260

75 Miss. 542

WALLACE SMITH v. THE STATE OF MISSISSIPPI

Supreme Court of Mississippi

February 7, 1898

December 1897

FROM the circuit court of Lauderdale county HON. G. B. HUDDLESTON Judge.

The appellant, Wallace Smith, was convicted of the murder of one J. T. Jemison, was sentenced to be hanged, and appealed to the supreme court. The facts are sufficiently stated in the opinion of the court for an understanding of the case. The instructions referred to in the opinion, and the presentation of which is deemed necessary to a clear conception of the opinion, are as follows:

Those for the state are:

"3. If the jury believes from the evidence, beyond a reasonable doubt, that, shortly before the difficulty, Smith hired a gun, loaded it, and went about town making threats against the life of Jemison, and that he went to where Jemison was standing, called him aside, and provoked the difficulty by cursing Jemison and by attempting to draw his gun on Jemison, and that such conduct on the part of Smith compelled Jemison to draw his pistol, and shoot, to protect his life or person from great bodily harm at the hands of Smith, and, thereupon, Smith shot and killed Jemison, then Smith is guilty as charged, if the jury further believe the shooting on the part of Smith was done with a deliberate design to effect death."

"5. The court charges the jury that if they believe, from the testimony, beyond every reasonable doubt, that Smith threatened the life of Jemison on the day of the homicide, and shortly preceding the difficulty, and that, in pursuance of these threats, armed himself with a loaded shotgun, and went in search of Jemison for the purpose of provoking a difficulty with him, intending to kill Jemison in said difficulty in the event Jemison refused to do what Smith required of him, and that Smith finally found Jemison, and that a difficulty, brought on by Smith, did ensue very shortly after Smith and Jemison met, and that during said difficulty Smith shot and killed him, with a shotgun aforesaid, then Smith is guilty of murder, even though the jury believe, as a matter of fact, Jemison fired the first shot, and the jury should so find."

"8. If the jury believe, from the evidence, that the defendant hired the gun, and bought the cartridges, intending to seek and find deceased, and provoke a difficulty with him, and, in said difficulty, to use said gun to slay and overcome him, and that, pursuant to such intent, did seek and find him, and did by word or act provoke a difficulty with deceased, in which difficulty he [defendant] did kill deceased, then he is guilty as charged, though deceased fired the first shot, and the jury should so find."

"9. If the jury believe, from the evidence, beyond a reasonable doubt, that Smith's conduct at the time of the difficulty was such as to compel Jemison to act in necessary self-defense in drawing his pistol and shooting Smith, then, under the law, Smith is estopped from defending himself from the assault of Jemison by killing Jemison."

The instruction asked by defendant and modified by the court is as follows:

"2. If the jury believe, from the evidence, that Smith ... was assailed by Jemison by drawing his pistol and shooting at him [Smith], and if the jury further believe that said shot by Jemison took effect in the arm of Smith, and that Smith returned the fire and killed Jemison, then such killing was justifiable, and the jury should acquit. And if the jury further believe that after Jemison had shot Smith, ... and after Smith had shot Jemison, and after Jemison had left the sidewalk and was advancing into the street, that Jemison's conduct, either by firing his pistol or holding it in a position to fire, or by doing any other act which indicated an intention to use a deadly weapon and do Smith some great bodily harm, and Smith believed that he was in danger by the use of such weapon, then Smith was justifiable in killing Jemison, and the jury should so find."

The court modified this instruction by inserting after "Smith, " in the first line, as indicated by the caret, the words "not being armed for the difficulty, or not provoking it, " and by adding in the seventh line, after the word "Smith, " as indicated by the caret, the words "Smith not being armed for or provoked the difficulty."

The instructions asked by defendant, and refused, are as follows:

"11. The court charges the jury that even though the defendant called Jemison a 'son of a bitch, ' or used any other insulting words, yet those words would not, nor would any other words, amount to such provocation as to deprive defendant of the right of self-defense.

"12. The court instructs the jury that if they believe, from the evidence, that defendant procured the gun to go bird hunting, or if they believe, from the evidence, that, a short time before the difficulty, deceased threatened to kill the defendant, then the defendant, in either case, had a right to procure a gun and carry it."

Trial granted and remanded.

S. A. Witherspoon, for appellant.

The third charge is erroneous because it states, as one of the conditions on which Smith lost the right to defend himself, that Smith hired a gun and loaded it. To hire a gun and lead it is a lawful act, and is not one of the conditions on which a man must submit to being killed. The third charge is erroneous in submitting to the jury the proposition that Smith went to Jemison and called him aside and provoked the difficulty with him, because the proof shows that Smith did not do this, and there is not sufficient evidence to authorize the jury to find that he did. The third and ninth charges for the state are both erroneous in stating to the jury that Smith is guilty, notwithstanding he killed Jemison in self-defense, if his conduct was such as to compel Jemison to shoot to protect himself. The vice of these charges is that they fail to give the jury any guide as to what sort of conduct, on the part of Smith, would entitle Jemison to shoot him, and that they leave the jury to determine, according to its own notion of the law, whether or not Smith's conduct was such as to authorize Jemison to kill him.

The third charge for the state is not only incorrect in its statement of each one of the conditions on which the right of self-defense was lost, but the combination of all of the conditions stated do not authorize the conclusion drawn therefrom in the charge that Smith was guilty. All of said conditions may have existed, and yet Smith had the right to defend himself. if Smith hired the gun and loaded it for the purpose of going hunting, as the state proved that he did, and if Smith went around town making threats against the life of Jemison, and if those threats were idle words which he did not intend to execute or were a mere joke, or if he did purpose to kill Jemison and abandoned such purpose before the difficulty, as his conduct in the difficulty clearly showed, or if the threats were conditional and not absolute, and were merely evidence of a purpose to shoot Jemison in case Jemison should try again to kill him, as he had done, then all the conditions of the charge would be true, and yet Smith would not have lost the right to defend himself, although the jury, in its great wisdom and in its assumed knowledge of the law, may have thought that such "conduct on the part of Smith compelled Jemison to draw his pistol and shoot to protect his life or person from great bodily harm at the hands of Smith."

The fifth charge was erroneous in stating, as one of the conditions on which the right of self-defense was lost, that Smith, in pursuance of these threats, armed himself with a loaded shotgun and went in pursuit of Jemison. There is not a syllable of testimony that Smith armed himself in pursuance of these threats. The fifth charge is erroneous in stating that the difficulty was brought on by Smith.

The eighth charge for the state is erroneous in submitting to the jury the proposition that Smith hired the gun and bought the cartridges, intending to seek and find Jemison and provoke a difficulty with him, and, in such difficulty, to use said gun on Jemison. They accidentally met on the sidewalk. As he did not seek him at all, he did not seek him with the intent described in the eighth charge, and there is no testimony to support such a charge.

The charges for the state, and the modification of the charges requested by the defendant, are not only erroneous for the reasons already given, but also because they are in conflict with the charges for the defendant. On the one hand, the court told the jury, in substance, to acquit Smith if he shot Jemison in self-defense, while, on the other, the jury is told that the plea of self-defense is cut off by the conditions named. In view of this conflict, the jury could not tell what they ought to do, and had no rule to guide them.

In the modification of the second charge the jury is told, in effect, that either one of two conditions will cut off the plea of self-defense. If Smith was "armed for the difficulty, " or if he provoked it, either act according to the instruction, required him to submit to being killed. This is not the law. What does "armed for the difficulty" mean? Does it mean if he had procured the gun to use it in the difficulty in slaying Jemison or committing a felony upon him, or in striking him with it, or that he just happened to have a loaded gun, and was thereby prepared to defend himself in the difficulty? Whatever it means, it was not sufficient to cut off the right of self-defense, nor is there a line in any law book which countenances such a doctrine. Neither does the act of provoking a difficulty by itself cut off the right of self-defense. He may have provoked the difficulty, and yet, if, when ...