Stone v. Heggie

• Decision Date: 13 April 1903
• Citation: 34 So. 146,82 Miss. 410
• Court: Mississippi Supreme Court
• Parties: ISHAM B. STONE v. ISAAC R. HEGGIE

34 So. 146

82 Miss. 410

ISHAM B. STONE v. ISAAC R. HEGGIE

Supreme Court of Mississippi

April 13, 1903

FROM the circuit court of, first district, Carroll county. HON WILLIAM F. STEVENS, Judge.

Heggie appellee, was plaintiff, and Stone, appellant, and another were defendants in the court below. From a judgment in favor of plaintiff against the appellant defendant appealed to the supreme court. The suit was dismissed as to the other defendant.

Reversed and remanded.

Frank Johnston, J. N. Flowers, A. A. Armistead, E. D. Stone and Stone & Stone, for appellant.

The jury were told by plaintiff's third instruction unconditionally, to find for the plaintiff, if in fact the defendant struck the plaintiff with a stick in the second encounter, and if Dave Stone assaulted the plaintiff. This takes no account of any facts in justification, but proceeds on the one isolated fact of the assault. The instruction is directed expressly to the second encounter. It is not cured by the defendant's second instruction, but is in conflict with it.

It cannot be supposed that a jury can reconcile conflicting instructions, or harmonize instructions which apparently, and on their face, announce different rules of law.

It brings Dave Stone's assault in also as a basis for a recovery, although this occurred after appellant struck plaintiff in the second encounter.

The acts of Dave Stone may possibly have been part of the res gestae, but it could not be made the basis of a recovery either in whole or in part.

There was no conspiracy between I. B. Stone and Dave Stone, and the participation of the latter in the encounter was entirely independent of the action of appellant, and for which he was in no way responsible.

The second, fourth, fifth, sixth, and seventh instructions for the plaintiff are all erroneous in regard to the character of the weapon used, which was an ordinary walking stick.

The stick was not per se a deadly weapon. It may be conceded that it was for the jury to decide whether an instrument indifferent in itself is a deadly weapon. But this is to be determined by two essential facts:

One is the precise character and nature of the instrument, and the other, which is just as important and essential, is the precise manner in which it was used.

These observations are directed especially to the sixth instruction, which, while it told the jury that it was their province to determine whether the stick was a deadly weapon entirely ignored the essential considerations by which this question is to be determined by a jury.

The fourth, fifth, sixth, seventh, and eighth instructions are erroneous in disregarding the manner in which the stick was used. It is not correct law, that a party insulted may not use a stick when it is not used in the manner of a deadly weapon. Skidman v. State, 43 Tex. 93; State v. Huntly, 91 N.C. 617; Hunt v. State, 6 Tex. App., 663; People. v. Rodrigo, 69 Cal. 601; Pittman v. State, 25 Fla. 648; Stevens v. State, 27 Tex. 461.

The defendant did not, in fact, use the stick as a deadly weapon. He struck with the small end, and only struck one blow at the second encounter, and probably two at the first assault. The injury inflicted was slight. There was no effort made to follow up the attack. The blow did not knock Heggie down on either occasion.

Hill & Sisson, for appellee.

Before the enactment of our statute, words, no matter how insulting, would not justify assault and battery, and we can go no further than the statute, which limits the defense to assault or assault and battery.

It is contended that Wood v. State, 64 Miss. 761, applies. It is true that the syllabus bears out the contention, but the opinion does not bear out the syllabus, and it would be taking a long step from the common law to justify a felony by "insulting words," and if they can justify an assault with a deadly weapon, they justify the taking of human life.

So far as Dan Stone is concerned, he and his acts constitute part of the res gestae and the story would be incomplete without Dan and his performances.

There can be no serious objection to stating the facts of the transaction in the instructions and telling the jurors if they believe them to find for the plaintiff, and to fully do this it was necessary to mention Dan and his acts, because he was on hand at both fights and promptly took part. It is immaterial whether he did this of his own motion or by agreement with appellant, his father.

The facts of the second fight are few, hence the third instruction is short, and although it recites what Dan Stone did, yet the jury was instructed that the suit against Dan had been dismissed and plaintiff could recover nothing for what he did, and of course his acts were only considered as part of the res gestae.

Much is said by appellant about "deadly" and "dangerous weapons," and it is contended that the jury was not permitted to decide the character of the weapon used. We respectfully submit that in each instruction on the subject the decision of that subject was left to the jury and one instruction for the plaintiff, at least, dealt entirely with that question.

It is not left in doubt, and it is not contended that Stone tried to shoot Heggie with the stick, but struck him with it. The stick was before the jury and ought to be in this court, but the description of it is in the record, and whether Stone struck him with...