Sullivan v. State

• Decision Date: 27 February 1905
• Citation: Sullivan v. State, 85 Miss. 149, 37 So. 1006 (Miss. 1905)
• Court: Mississippi Supreme Court
• Parties: WILLIAM C. SULLIVAN v. STATE OF MISSISSIPPI

37 So. 1006

85 Miss. 149

WILLIAM C. SULLIVAN v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

February 27, 1905

FROM the circuit court of Smith county, HON. JOHN R. ENOCHS Judge.

William C. Sullivan (commonly called Bill Sullivan), the appellant and Andrew Jackson Sullivan (commonly called Jack Sullivan) father and son, were jointly indicted for the murder of Wilson Sullivan, a brother of appellant. A severance was had and appellant separately tried, convicted, and sentenced to the penitentiary for life, from which conviction and sentence he appealed to the supreme court. The facts are stated in the opinion of the court.

Reversed and remanded.

W. H. Hughes, and McIntosh Bros., for appellant.

All the evidence in this case taken together is not sufficient to sustain a verdict of guilty. There is no testimony anywhere in the case showing that appellant ever struck deceased or ever aided or abetted or encouraged A. J. Sullivan to strike him; no testimony showing or tending to show that appellant had the least intimation or idea from any source that A. J. Sullivan there in the dark was making a deadly assault with a knife upon deceased; no testimony showing or tending to show that appellant was armed with a deadly weapon. On the contrary, appellant's uncontradicted testimony is to the effect that he did not touch deceased, did not aid, encourage, or abet the killing in any manner, and did not know that A. J. Sullivan was cutting deceased until after the difficulty was over, when they had started home and Jack told him; that he cherished no malice toward his brother, but, on the contrary, loved him better than any of his other brothers. Under the facts, the court should have sustained the motion of the defendant to suppress the testimony and for a verdict of not guilty.

The first instruction given for the state is erroneous because it tends to center the minds of the jury upon a question not in issue--viz., whether or not Wilson Sullivan was killed in self-defense. The same error occurs in instructions 3, 4, 5, and 6 given for the state. Spradley v. State, 31 South. Rep., 534; Layton v. State, 56 Miss. 791; Parker v. State, 55 Miss. 414.

Instructions 1 and 3, if proper at all, are too narrow. Accused certainly had a right to defend the person of his son, A. J. Sullivan, if there was a reasonable ground to apprehend a design on the part of deceased to do the son some great personal injury. Code 1892, § 1152.

Instructions 1, 2, 3, and 4 have no bearing upon this case, do not enlighten the jury as to the law on the issues involved, and should not have been given.

The fifth instruction tells the jury that if either one of the parties (meaning appellant or A. J. Sullivan) sought and provoked a difficulty with Wilson Sullivan, armed with a deadly weapon, intending to use it in such a difficulty if it should become necessary to overcome Wilson, and the other of the accused--that is, Bill or Jack--was present for the purpose of encouraging, aiding, or abetting such party in executing such intention, they are equally guilty under the law. Mark the words "present for the purpose."

It is not enough that defendant be present and have in his mind a felonious purpose. This does not constitute in any case the crime of murder. According to this instruction, defendant may have been present, and his purpose for being present may have been to aid, assist, or encourage the commission of the crime. Yet he would not necessarily be guilty of murder. He must affirmatively abet, assist, or encourage the act. He cannot be guilty of murder unless he does something that causes or helps to cause the murder. The formed purpose in his mind is not the crime. State v. Cox, 65 Mo. 29; State v. Douglas, 44 Kan. 626; White v. People, 32 Am. St. Rep., 196; Burrel v. State, 18 Tex. 713; Watson v. State, 28 Tex. App., 34.

J. N. Flowers, assistant attorney-general, for appellee.

There was no necessity for the killing, and it was a crime. Whisky was the cause of it, no doubt. The evidence is sufficient to support the verdict.

It is true, as a proposition of law, that if Jack Sullivan killed Wilson Sullivan under circumstances which made the killing murder, and this appellant was present for the purpose of aiding and abetting, he is guilty also. Presence and intention to aid is participation. McCarty v. State, 26 Miss. 299; Wynn v. State, 63 Miss. 260.

Argued orally by W. H. Hughes, and D. A. McIntosh, for appellant, and by J. N. Flowers, assistant attorney-general, for appellee.

OPINION

TRULY, J.

W. C. Sullivan and A. J. Sullivan were jointly indicted for murder. Appellant was tried separately, convicted, and appeals.

The fifth instruction for the state is as follows: "The court instructs the jury that it is not necessary that a previous conspiracy between Bill and Jack Sullivan should have been formed in order that both of the parties, Bill and Jack Sullivan, might be guilty of the crime charged against them in the indictment. For if either one of them sought and provoked a difficulty with Wilson Sullivan, armed with a deadly weapon, intending to use it in such difficulty if it should become necessary to overcome Wilson, and the other of the accused--that is, Bill or Jack--was present for the purpose of encouraging and aiding or abetting such party in executing such intention, they are equally guilty under the law; and if such difficulty was provoked, and a knife, a deadly weapon, was used by Jack Sullivan in such difficulty, and Wilson Sullivan killed, not in necessary self-defense, then Jack Sullivan and any one so present encouraging or aiding or abetting him are guilty as charged." This instruction was not applicable to the facts of the case, and the proposition of law which it was intended to announce was incorrectly stated. The testimony, considered as a whole, so far as disclosed by a most meager record, shows: Appellant and deceased, Wilson Sullivan, were brothers. On the night of the fatal difficulty a social gathering was held at the residence of the deceased, to which appellant, his family, and other neighbors were invited. While there, several of the guests engaged in convivial drinking, the appellant, at least, to excess. There was no evidence of any bad feeling existing between appellant and deceased that night. The last words uttered by appellant before leaving the house were in returning thanks to the family of his host for their hospitality. He then rode off in the direction of his home, and had proceeded some distance, probably three hundred yards, down the road, when he came to where the deceased and one or more men were standing. Here a difficulty arose between appellant and deceased, the actual details of which are very vaguely stated in the record. It is beyond dispute, however, that at the time the fight between appellant and deceased began, and for some minutes thereafter, A. J. Sullivan, the son of the appellant, was not present at the scene of the difficulty, not having left the yard gate of the premises of the deceased, and that he did not go to the place of the difficulty until he had been notified of what was transpiring and who were engaged in the fight, when, remarking that he would take his "keen cutter" and go down and settle it, he rode rapidly down the road to where his father and the deceased were engaged in a fisticuff, took part therein on behalf of his father, and stabbed and mortally wounded Wilson Sullivan, the deceased. It does not appear with any degree of certainty that either appellant or deceased was armed with any weapon, or that either intended or endeavored to inflict any serious injury upon his adversary. The testimony of the only witness actually present at the commencement of the difficulty, and who left immediately after it started and before A. J. Sullivan arrived upon the scene, was to the effect that the difficulty was provoked by Wilson Sullivan, the deceased, and that he knocked or shoved appellant down at the very commencement of the fight. Nor is there any direct evidence upon which to base a conclusion that appellant expected his son, A. J. Sullivan, to take part in the difficulty, nor that A. J. Sullivan knew or had any reason to suspect that his father would meet with Wilson Sullivan on the road, or that he intended, if he did meet him, to engage in a difficulty with him. Under this state of facts it was error for the court to submit to the jury an instruction which authorized them to find that A. J. Sullivan had provoked a difficulty with Wilson Sullivan or that appellant was armed with a deadly weapon which he intended to use in such difficulty if it should become necessary to overcome him, for the reason that there is no evidence that A. J. Sullivan provoked a difficulty with Wilson Sullivan or that appellant was armed with or intended to use a deadly weapon in such difficulty. If there existed no previous understanding between Bill and Jack Sullivan, no common design to commit any unlawful act, this presupposes independent action on the part of each; therefore, even if one of the parties did provoke a difficulty with Wilson in the manner and for the purpose indicated by the instruction, "the other of the accused" could not have been present "for the purpose" of encouraging and aiding or abetting such party in executing "such intention." In the absence of a common purpose, one party could not know the intention of the other, and could not be present for the purpose of assisting in the execution of a plan to which he was not a party and of which he was in ignorance. ...