Wadford v. State, 51816

• Decision Date: 09 July 1980
• Docket Number: No. 51816,51816
• Parties: Tillman WADFORD v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 951

385 So.2d 951

Tillman WADFORD v. STATE of Mississippi.

No. 51816.

Supreme Court of Mississippi.

July 9, 1980.

Montgomery, Smith-Vaniz & Stater, C. R. Montgomery, Don McGraw, Burke C. Murphy, Jr., Canton, for appellant.

Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, James W. Smith, Pearl, for appellee.

En Banc.

SMITH, Presiding Justice, for the Court.

Tillman Wadford was indicted for the murder of one Greg Coghlan. He was tried on that charge in the Circuit Court of Madison County, found guilty, and sentenced to life imprisonment.

On appeal, it is argued that the evidence was insufficient to support the conviction. The assignments dealing with this question are without merit. Several eyewitnesses testified that Wadford drew a pistol from his back pocket, pointed it at Coghlan and shot Coghlan in the head, killing him, at a time when Wadford was not in imminent danger, real or apparent, of suffering death or great bodily harm at the hands of Coghlan.

In Redwine v. State, 149 Miss. 741, 115 So. 889 (1928), the rule was stated:

In determining the propriety of the action of the trial court in refusing to direct a verdict of not guilty in this case, the evidence tending to prove appellant's guilt must be considered most favorably for the state. Putting it differently, every material fact proven, either directly or by reasonable inference, tending to show appellant's guilt, must be taken as true. (Emphasis added).

See also Glass v. State, 278 So.2d 384 (Miss.1973).

It is undisputed that at the time he was killed by Wadford, Coghlan was unarmed. In the statement of facts in Wadford's brief it is said, "The defendant, Wadford, contended that the shooting was accidental." Wadford's testimony at his trial makes it clear that this was a correct statement of Wadford's defense.

The homicide took place immediately outside the door of "Club 43".

Wadford, testifying as a witness in his own behalf, gave his version of the homicide, in the course of which he undertook to describe in detail the facts and circumstances.

According to Wadford's testimony, as he and his wife and his wife's sister walked out of the club door, Coghlan, who was standing outside with one or two others, addressed a vulgar sex proposition to the women. Wadford told Coghlan to "watch his damn mouth." After the Wadford party had exited the club, it was decided that Wadford would go back in and tell "Junior" that they were leaving so that the latter would not be worried about them. The women preceded Wadford into the club and the "boys" (one of whom was Coghlan) again made the indecent proposal. Wadford reminded them that he had told them to "watch their mouth" and that the women were his wife and sister-in-law. Wadford said he told "them that if they wanted to fight that it would be fine with him." At that point, Coghlan told Wadford that he, Coghlan, would whip his "damn ass" and Wadford said that he had responded that Coghlan would not. According to Wadford, Coghlan said he had "something" that would take care of Wadford and Wadford "backed up." Wadford then left, went to his truck and armed himself with a pistol. He put the pistol in his back pocket.

Wadford said he did this for his protection and because the women were in the club and would have to pass Coghlan and the others when they came out. Having obtained his pistol, Wadford returned and "that's when they started and had a hold of me. I pulled the gun to shoot in the air but the gun didn't make it all the way up and shot him in the eye. I did not intend to kill the boy." Wadford said that at no time during the evening did he have any intention at all of killing Greg Coghlan. He said that, when he drew the pistol, "some of them had their hands on me and there was kind of a scuffle." Greg was rushing in as he, Wadford, was bringing up the gun to shoot in the air. Wadford continued, "I got my hand into my back pocket and pulled it (the pistol) out to shoot it in the air and the gun went off." He said that he had the intention of shooting up in the air and scaring "them" off; that when he pulled the gun Coghlan was coming in front of him and the others were to the sides. He said that the gun didn't made it up into the air because "they" had my arm. "I had my finger on the trigger and it (his arm) hit the man that I had been talking to." Wadford said that it had been he who had suggested the fight after Coghlan had made the remark to the two women.

After giving the above testimony in support of his defense of "accident", Wadford concluded his testimony on cross-examination as follows:

I pulled that gun and shot him in self-defense under the statement that he said he had something to take care of me, and that was in my mind, protecting myself at the time.

Q. But you never saw a thing?

A. Never saw a thing?

Q. Never saw a weapon of any kind?

A. No, sir.

This leads to Wadford's final assignment of error. Wadford contends that the trial court's action in refusing to grant a certain instruction requested by Wadford, that would have allowed the jury to find the homicide justified as having been committed in necessary self defense, was error.

Wadford's testimony was directed specifically and in detail to establishing that the shooting had been unintentional and accidental. It is asserted in his brief that his defense was accidental slaying. This cannot be reconciled with a view that Wadford's act in shooting Coghlan had been purposeful and done because there was a reasonable apprehension on Wadford's part that it was necessary to do so in order to protect himself from grave bodily injury or death at Coghlan's hands, the danger thereof being imminent and impending, and that shooting Coghlan had been necessary to prevent it.

Wadford said that when he drew his gun, he had his finger on the trigger intending to shoot in the air. At the time, he said, Coghlan was two or three feet away from him, coming toward him. When Wadford failed to get the gun up and "the gun went off" Wadford's own testimony not only wholly failed to support the theory that he acted in necessary self defense but negates it in detail. Consequently, he was not entitled to an instruction submitting the theory of self defense to the jury. An instruction should not be given to a jury submitting a theory which is not supported by the evidence.

Wadford's requested instruction, which would have submitted to the jury a theory of self defense falls squarely within the rule stated in Pittman v. State, 297 So.2d 888, 893 (Miss.1974). "Instructions should be given only if they are applicable to the facts developed in the case being tried."

Wadford's concluding statement on cross examination that he had "shot him in self defense", while in itself incapable of creating a factual issue for the jury, made it necessary and proper for the state to request an instruction which was granted, setting out the circumstances which must be established by evidence to justify a homicide on the ground of self defense. This is not to suggest that, where a defendant is, on facts in evidence, entitled to a self defense instruction, the State may preempt the subject and cut him off by obtaining an instruction of its own setting forth the essential elements of that defense. The argument is now made that the State's instruction should not have been given because it was "abstract". It does not use the names of the parties. However, it is undisputed that there was only one "slayer", Wadford, and only one "deceased", Coghlan, and no apprehension of confusion could reasonably have been entertained on that account.

As pointed out previously, in the opening portion of the brief filed on behalf of Wadford, it was asserted that Wadford's defense was that the shooting had been accidental. In addition to Wadford's own testimony, other witnesses testified that Wadford had told them that he had intended to shoot in the air and had no intention of shooting Coghlan and that the homicide had been an accident.

The instruction requested by Wadford, which the trial judge declined to grant, was as follows:

The Court instructs the jury that the Defendant, Tillman Wadford, asserts that the killing of Greg Coghlan was a justifiable homicide because the Defendant's act which caused the death of Greg Coghlan was committed by Tillman Wadford in the lawful defense of his own person where there was reasonable ground to apprehend a great personal injury and there was eminent danger of such design being accomplished. The killing of a human being is justified if the Defendant was acting in self defense because he had reasonable grounds to fear that Greg Coghlan would attempt to kill the Defendant or cause great bodily harm to the Defendant and that there was eminent danger of the injury occuring. If you find that a homicide is justifiable, it is not necessary that you believe that Tillman Wadford had no ill will or malice toward Greg Coghlan. (Emphasis added).

It is conceivable that there may be cases in which the defenses of accident and self defense are compatible and may be asserted together. However, in this case the facts related by Wadford are irreconcilably inconsistent with any view that Wadford had intentionally shot Coghlan at a time when he, Wadford, had any reasonable ground to apprehend grave personal injury or death at the hands of Coghlan.

The first sentence of the requested instruction is clearly misleading. This would have made it appear to the jury that the court was informing the jury that Wadford had testified (asserted) that Wadford's act in killing Coghlan had been committed by Wadford in the lawful defense of his own person at a time when there was reasonable ground to apprehend imminent danger of death or great personal injury at Coghlan's hands. This would have been incorrect as Wadford had not so testified. Moreover, while it begins by including in the fears to be apprehended by Wadford the fear of "d...