Vance v. State

• Decision Date: 12 September 1938
• Docket Number: 33130
• Citation: 183 So. 280,182 Miss. 840
• Court: Mississippi Supreme Court
• Parties: VANCE v. STATE

183 So. 280

182 Miss. 840

VANCE v. STATE

No. 33130

Supreme Court of Mississippi

September 12, 1938

Division A

1. Criminal Law.

When the testimony of eyewitnesses is in material respects unreasonable, or is contrary to the evidence of attendant circumstances, including the physical facts, the case must be submitted to the jury.

2 Homicide.

Conflicting evidence on issue of self-defense in murder prosecution was for the jury.

3 Homicide.

In murder prosecution wherein accused was convicted of manslaughter, instruction cutting off justification of self-defense on given state of facts which were not supported by the evidence was reversible error.

4 Homicide.

In murder prosecution wherein defendant was convicted of manslaughter, instruction limiting justification of self-defense by making it necessary to establish that it was reasonably necessary to save defendant from great bodily harm at the very time the fatal shot was fired circumscribed the right of self-defense within too narrow limits.

5 Homicide.

Where evidence showed that accused was knocked down by deceased's pistol and that accused went forward and returned to the difficulty and fired shot at deceased because of the passion aroused by the blows inflicted upon accused's head, manslaughter instruction was proper, but it was not proper to include phrase "but in a cruel and unusual manner," since homicide was in the usual manner in so far as the instruments used to bring about death were concerned (Code 1930, section 994).

6. Witnesses.

The statutory privilege regarding communications between physician and patient is for the benefit of the patient alone (Code 1930, section 1536).

7. WITNESSES.

The statutory privilege regarding communications between physician and patient may not be waived by a decedent's heirs, executor or administrator (Code 1930, section 1536).

8. WITNESSES.

In murder prosecution, wherein accused was convicted of manslaughter, physician's testimony that bullet taken from daughter of accused who was injured in the affray between accused and deceased was of same caliber as accused's gun to refute accused's statement that deceased had shot accused's daughter was admissible, since privilege existing between physician and accused's daughter could not operate in favor of accused (Code 1930, section 1536).

HON. WILLIAM A. ALCORN, JR., Judge.

APPEAL from the circuit court of Bolivar county HON. WILLIAM A. ALCORN, JR., Judge.

J. C. Vance was convicted of manslaughter, and he appeals. Reversed and remanded.

Reversed and remanded.

Louis C. Hallam and Hugh F. Causey, both of Cleveland, for appellant.

The evidence was insufficient to convict appellant of any crime.

The rule is that if the testimony in behalf of the accused makes out a case of self defense, and if the account which he has given of the difficulty is not unreasonable in material respects on its face, and is not contradicted in material matters by other evidence or the physical facts, then it is the duty of the trial court to instruct the jury to acquit the accused. And there is another rule, which is, that a judgment of conviction will not be sustained by this court if all of the testimony in the case, whether introduced by the State or by the defendant, leaves the question of the guilt of the accused in reasonable doubt.

Houston v. State, 117 Miss. 311, 78 So. 182; Patty v. State, 126 Miss. 94, 88 So. 498; Blackledge v. State. 157 Miss. 33, 127 So. 684; Strahan v. State, 143 Miss. 519, 108 So. 502; Jarman v. State, 178 Miss. 103, 177 So. 869; Weathersby v. State, 165 Miss. 207, 147 So. 481; Jones v. State, 60 So. 735; Sides v. State, 96 Miss. 638, 51 So. 465; Conway v. State, 177 Miss. 461, 171 So. 16; Henerson v. State, 180 So. 89; Wesley v. State, 153 Miss. 357, 120 So. 918; Walters v. State, 153 Miss. 709, 122 So. 189; Kelly v. State, 147 So. 487; Williams v. State, 160 Miss. 223, 133 So. 661; Byrd v. State, 154 Miss. 742, 123 So. 867.

The trial court ought to have peremptorily instructed the jury to acquit appellant. This court may now render such judgment as the trial court ought to have rendered, as decided in the Jarman case, supra, and as authorized by Section 3378 of Code 1930.

The fact that appellant called Harrington a cowardly son-of-a-bitch ought not to be considered in this case.

13 R. C. L. 795, sec. 99; Smith v. State, 75 Miss. 542, 23 So. 260; Wicker v. State, 107 Miss. 690, 65 So. 885; Freddo v. State, 155 S.W. 170; Smith v. State, 39 Miss. 521; Preston v. State, 25 Miss. 383; People v. Campbell, 43 Am. Rep. 257; Levey v. State, 12 S.W. 596, 19 A. S. R. 826; McCall v. State, 29 So. 1003.

The fact that Harrington was shot in the back was immaterial.

Leverett v. State, 112 Miss. 394, 73 So. 273.

Instruction No. 1 given for the state, which deprived the appellant of the right of self defense, should not have been given.

Patterson v. State, 75 Miss. 670, 23 So. 646; Lofton v. State, 79 Miss. 723; Williams v. State, 90 Miss. 319, 43 So. 467; Cooper v. State, 80 Miss. 175, 33 So. 579; Fore v. State, 75 Miss. 727; Reed v. Y. & M. V. R. R. Co., 94 Miss. 639, 47 So. 670.

An instruction which assumes a pivotal point is fatally erroneous.

Cunningham v. State, 87 Miss. 417, 39 So. 531; De Silva v. State, 93 Miss. 635, 47 So. 464; Barber v. State, 125 Miss. 138, 87 So. 485; Robinson v. State, 16 So. 201; Ellerbee v. State, 79 Miss. 10, 30 So. 57.

The instruction in no way defines either murder or manslaughter, or sets out the quantum of proof necessary to authorize the jury to convict of either.

Hunter v. State, 74 Miss. 515; McCaa v. State, 38 So. 228; Cunningham v. State, 87 Miss. 417, 39 So. 531; Butler v. State, 177 Miss. 91, 170 So. 148; Brett v. State, 94 Miss. 669, 47 So. 781; Upton v. State, 94 Miss. 1, 108 So. 287; Barnes v. State, 118 Miss. 621, 79 So. 815; Murphy v. State, 89 Miss. 827, 42 So. 877.

This instruction is fatally erroneous in that it is not predicated of all of the facts introduced in evidence, and excludes from the consideration of the jury the theory of the appellant that he had abandoned the difficulty at the time he was assaulted by the deceased.

Williamson v. State, 115 Miss. 716, 76 So. 637; Adams v. State, 136 Miss. 298, 101 So. 437; Lofton v. State, 79 Miss. 723, 31 So. 420; Jones v. State, 84 Miss. 194, 36 So. 243; Smith v. State, 75 Miss. 553, 23 So. 260; Coleman v. State, 179 Miss. 661, 176 So. 714; Lee v. State, 138 Miss. 474, 103 So. 233; Thomas v. State, 61 Miss. 60; Pulpus v. State, 82 Miss. 548, 34 So. 2; Cooper v. State, 80 Miss. 175, 33 So. 579; Hartfield v. State, 176 Miss. 776, 170 So. 531.

Error was committed by the court below in giving that part of Instruction No. 3 for the State, which authorized the conviction of manslaughter, and attempted to define that offense.

The evidence offered by the appellant in the court below showed conclusively that after the appellant had apologized to the deceased on the sidewalk in front of the Vance Store, the appellant left the deceased and started into the store to get away from him and avoid any further difficulty, and that the deceased, with his pistol still drawn, pushed by the appellant and rushed into the store ahead of him, all the time confronting him with the pistol, and thereupon struck the appellant over the head and shot at him with his pistol, two blows having been inflicted upon appellant's head which caused the blood to flow freely down his face and into his eyes, and that not until these things happened did the appellant draw or attempt to draw his pistol from his shirt bosom, and that upon drawing his pistol, he shot five times in rapid succession to protect his own life and the life of his daughter. This evidence made a perfect case of self-defense, and revealed no element of manslaughter.

Parker v. State, 102 Miss. 113, 58 So. 978; Adams v. State, 175 Miss. 868, 167 So. 59.

The court also by this instruction assumed that Harrington was killed "in a cruel and unusual manner," and conveyed to the minds of the jury the idea that the court believed the killing to have been "in a cruel and unusual manner." The court had no right to so assume or to express to the jury its own conviction that the killing was done in a cruel and unusual manner. Such an instruction, besides assuming facts not proven, is clearly on the weight of the evidence.

Klyce v. State, 78 Miss. 450; Johnson v. State, 78 Miss. 627, 29 So. 515.

This instruction also fails to advise the jury as to the quantum of proof necessary to a conviction of manslaughter.

Walters v. State, 176 Miss. 790; Jones v. State, 84 Miss. 194, 36 So. 243.

Furthermore, if Instruction No. 3, authorizing the finding of any one of five verdicts, as one instruction and not two instructions, then it was erroneous, because it authorized the jurors to compose any differences they might have and compromise on a verdict of manslaughter. Such compromises should not be suggested, much less encouraged.

When an overt act has been shown to have been made by the deceased an uncommunicated threat made by the deceased against the defendant is admissible.

Beauchamp v. State, 128 Miss. 523, 91 So. 202; Muse v. State, 130 So. 693; Lambert v. State, 171 Miss. 474, 158 So. 139; Hendrix v. State, 172 Miss. 589, 161 So. 151; Lee v. State, 174 So. 85.

Instruction No. 2 given for the State was fatally erroneous in that it cut off the plea of self-defense unless it was necessary for the appellant to kill the deceased to save himself from great bodily harm "at the very time the fatal shot was fired."

Case v State, 17 So. 379; Fortenberry v. State, 55 Miss. 403; Ellerbe v. State, 79 Miss. 10, 30 So. 57; Bang v. State, 69 Miss. 571; Blalock v. State, 79 Miss. 517, 31 So. 105; Hood...