Tolbert v. State

• Decision Date: 13 November 1893
• Citation: 14 So. 462,71 Miss. 179
• Court: Mississippi Supreme Court
• Parties: TOM TOLBERT ET AL. v. THE STATE

14 So. 462

71 Miss. 179

TOM TOLBERT ET AL. v. THE STATE

Supreme Court of Mississippi

November 13, 1893

October 1893

FROM the circuit court of Noxubee county, on a change of venue from Kemper county, HON. S. H. TERRAL, Judge.

In addition to the facts mentioned in the opinion, it is deemed material to state that the defendants, Tom and Walter Tolbert, testified that, at the time of the killing of Cole they were going from their father's house to the blacksmithshop, where their brother, sixteen years of age had been killed, and, as they thought, murdered, by Donald the day before, and that their object was to confer with the Indian, the proprietor of the shop, to ascertain what his testimony as to the killing would be; that Tom had determined to return to the penitentiary, and surrender himself, and that it was desired to have the Indian state what he knew of the killing in the presence of both; that, as they were going along the path through the woods, when their dogs barked they discovered persons in front of them, and saw one of them jump behind a tree; that there was not light enough for them to see distinctly, and they did not know who it was; that they inquired several times, "Who is there?" and that no response was made, but that one of the persons fired at them from behind a tree, whereupon they shot back, and the firing became general; that they had no intimation that the persons they were thus encountering were acting with the sheriff or were seeking to arrest Tom, and that they shot in self-defense, believing their lives were in danger.

Harbour who was with Cummings and Cole, testified that soon after the defendants were seen coming along the path, one of them said: "There is somebody, damn him; shoot him!" and that Tom Tolbert pulled his pistol from his breast, and directed it at him, the witness; that, as soon as he could, after seeing that they were shooting, he commenced firing; that no response was made when the defendants demanded to know who was there, and that they did not inform the defendants of the purpose to make the arrest.

Cummings testified that when he first saw the defendants they were coming down the path side by side, as if looking for some one; that they approached within thirty or thirty-five yards, and halted, as though they had seen him and his companions; that they "held out their guns as though they were going to fire, and I popped a cap [in an effort to shoot at defendants]. That was the first thing that was done after they called out 'Who is there?' Then the firing commenced. I could not say who fired the first shot. I could not tell whether our boys fired when they did or not. I was watching them. Just as I popped a cap, their guns flashed. They hollered out 'Who is there?' and that was all that was said. I do not know why we did not tell them who we were, only it looked like they were going to shoot, and I felt like I did not have any time to do any talking."

The parties seeking to make the arrest had no warrant, and it was not claimed that they made any response to the inquiries of defendants, or said any thing whatever, before the firing began. Cummings and Harbour were the only witnesses to the killing besides the defendants.

Among others, the following instructions were given for the state:

"1. If the jury believe from the evidence that Tom and Walter Tolbert opened fire with their guns and pistols upon Cole, Harbour and Cummings before either Harbour, Cole or Cummings made any hostile demonstrations toward the Tolberts, and that they continued to fire upon them until Cole was killed, then this is murder, and the jury should so find.

"2. Even though the jury may believe that Harbour snapped a cap at the Tolberts before they fired their guns upon Cole, Harbour and Cummings, he had a right so to do, if they believe that, from the acts, conduct and demonstrations of the Tolberts, or either of them, they were then about to inflict upon either Cole, Harbour or Cummings great personal injury or death.

"3. If the jury believe from the evidence that it was the purpose of Cole, Harbour and Cummings to arrest Tom Tolbert, an escaped convict, then they had a right to use every precaution necessary to make such arrest, and had a right to seat themselves on the path leading from Tolbert's house; and if they further believe that, before an opportunity was given them to announce their purpose, and before any hostile demonstrations were made by Cole, Harbour and Cummings, Tom and Walter Tolbert opened fire on them, or made such demonstrations as to indicate that it was their purpose to immediately open fire on them, then Cole, Harbour and Cummings had a right to shoot Tolbert.

"4. The jury have a right to determine, from all the facts and circumstances in evidence in this case, whether the Tolberts opened fire, or attempted to open fire, upon Harbour, Cole and Cummings (if they believe such is the fact) to prevent the recapture of Tom Tolbert, or in their necessary self-defense; and if they believe that the Tolberts opened fire upon Cole, Harbour and Cummings to prevent the recapture of Tolbert, and continued to fire until Cole was killed by one or either of them, then they are both guilty of murder, and the jury should so find.

"5. If the jury believe from the evidence that the defendants, by any hostile demonstrations, and not superinduced by any deadly demonstration on the part of Cummings, Cole and Harbour indicating to Cole, Harbour and Cummings that they were about to inflict great personal injury or death upon them, induced Cole, Harbour and Cummings to fire upon them, then the defendants so commencing such deadly conflict, and so inviting Cole, Cummings and Harbour to a deadly conflict, would be guilty of murder if death ensued in such conflict.

"6. If the jury believe from the evidence that it was the purpose of Cole, Harbour and Cummins to arrest Tom Tolbert, then, if they thought it necessary as a precautionary measure, they had the right to place themselves behind the trees on the path they were guarding, after seeing the Tolberts approaching them with arms."

Among others, the following charges were given for the defendants:

"1. The court instructs the jury for the defendants that, notwithstanding they may believe from the evidence that Tom Tolbert had been convicted of a felony in the circuit court of Kemper county, sentenced to penitentiary for life, and made his escape therefrom, and at the time of the killing of Cole would have avoided arrest, if an attempt to arrest him had been made, yet all these facts could not and did not deprive him of the right of self-defense; and, although the jury may believe from the evidence that Cole, Harbour and Cummings had been directed to assist in the arrest of Tom Tolbert, and at the time of the killing or shooting of Cole, were there for the purpose of making such arrest, yet it was their duty, in good faith and with reasonable prudence and caution, to have made his arrest without a resort to severe means until all other proper means had failed, and under no circumstances to have resorted to shooting or an attempt to shoot him down, unless the arrest could not have been made without it; and if the jury believe from the evidence that Cole, Harbour and Cummings were lying in wait or ambush upon the side of a path that the defendants were going, and when, at a distance of forty yards or more, they discovered the defendants approaching them, and then, at that distance, without making themselves known to the defendants, or the fact that they were there for the purpose of arresting them, and, without calling on them to halt or surrender, one of their number attempted to shoot them, or either of them, and, in that attempt, burst a cap, then the defendants had the right to act in self-defense as much so as if Tom Tolbert had not been guilty of any felony; and if, from all the facts and circumstances in evidence, the jury believe that, at the time Cole was shot, the defendants had reasonable ground to apprehend that their lives were in peril, and there was imminent danger of being killed or wounded by the said Cole, Harbour or Cummings, then they had the right to shoot in self-defense, and the killing of Cole under such circumstances was not murder, but was justifiable homicide, and the jury should return a verdict of not guilty.

"2. The court instructs the jury that the law holds the life of even a convict sacred, and does not justify any one in wantonly or recklessly and without sufficient cause taking it; that whilst any citizen may aid in the arrest of an escaped convict from the penitentiary, even without warrant, yet it is not their privilege or duty to shoot him down without warning or notice, or first making a reasonable effort to effect his arrest without resorting, to such harsh means; and if the jury believe from the evidence that Cole, Harbour and Cummings, acting together, on or about the morning of the fourth day of November, 1892, without calling upon the defendants to halt or surrender, fired upon them from ambush, when the defendants were making no attempt to fire at or hurt them, then the defendants had the right, under the law of self-defense, to return the fire, and if, in so doing, Cole was killed by either of them, such killing was justifiable."

"5. The court instructs the jury that if, from all the evidence in this case, they believe or entertain a reasonable doubt that at the time the defendants shot Cole they had reasonable ground to believe that Cole, Harbour and Cummings were...