Strahan v. State

• Decision Date: 31 May 1926
• Docket Number: 25448
• Court: Mississippi Supreme Court
• Parties: STRAHAN v. STATE. [*]

108 So. 502

143 Miss. 519

STRAHAN v. STATE. ^[*]

No. 25448

Supreme Court of Mississippi

May 31, 1926

Division A

HOMICIDE. Defendant held entitled to peremptory instruction where evidence, not in conflict with state's evidence, showed killing was in self-defense, and state's contention that killing was not in self-defense rested on extrajudicial statements containing no admission of guilt and manifestly untrue.

Where defendant's evidence showed that he killed deceased in self-defense and was not in conflict with evidence of state and state's contention that killing was not in necessary self-defense rested on extrajudicial statements of defendant which were manifestly untrue and contained no admission of guilt, defendant was entitled to peremptory instruction.

HON. J Q. LANGSTON, Judge.

APPEAL from circuit court of Lamar county, HON. J. Q. LANGSTON Judge.

Leon Strahan was convicted of a crime, and he appeals. Reversed and defendant discharged.

Judgment reversed and appellant discharged.

J. W. Cassedy and J. C. Street, for appellant.

I. This is not a case where the state's evidence shows a deliberate killing by the use of a deadly weapon, from which malice might be inferred, because there is no testimony in the case showing a deliberate killing. On the contrary, the state introduced the sheriff and the sheriff testified that the defendant was the only witness by whom it was shown, on a former trial, what the circumstances were under which the shooting occurred. While it is true, as the sheriff testified for the state, that appellant said he killed John Smith and that John Smith was in the yard at the time, he also states clearly in his cross-examination that this was not all of the defendant's former testimony; but that he also stated that he shot and killed the deceased John Smith in order to save himself; that they were struggling together over the pistol and it was either his life or Smith's; and just as they went out of the back steps and broke loose at or near the bottom step, Smith immediately returned to the fight, the pistol was fired rapidly three times and the death of John Smith resulted. This is corroborated by the testimony of the two boys who say they saw the flash of the pistol, one at the back of the house, one at the back door; this is corroborated by the negro boy who says he saw the pistol fire at or near the back door, and also borne out by the wounds on the body of John Smith, two of them ranging downward and one of them slightly downward. It is also corroborated by the fact that John Smith was facing the steps and was shot in front, and the blood on the ground which indicated that he was closer to the steps when the shots were fired than when he fell. We submit that the court should have granted the appellant a peremptory instruction on the evidence.

II. Appellant also assigns as error the action of the court in allowing the sheriff to testify as to isolated statements made by the appellant while testifying as a witness in his own behalf at a former trial, when it was shown that the evidence of the defendant was taken down by the stenographer, transcribed by him, and same was then in the possession of the district attorney and could have been introduced by him if he so desired.

It is a rule of law as to any supposed adverse statement made by a defendant charged with crime that the state would be required to show the entire statement and not that part only which it claims to be beneficial to the state's theory. In addition to this, we submit that it was error for the court to allow the district attorney to take this course because it in effect forced and compelled the defendant to testify in his own...