Waller v. State

• Decision Date: 18 November 1907
• Citation: 91 Miss. 557,44 So. 825
• Court: Mississippi Supreme Court
• Parties: WILLIAM WALLER v. STATE OF MISSISSIPPI

44 So. 825

91 Miss. 557

WILLIAM WALLER v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

November 18, 1907

October 1907

FROM the circuit court of, first district, Yallobusha county, HON SAMUEL C. COOK, Judge.

Waller appellant, was indicted and tried for the murder of one Jerry Roseman, convicted of manslaughter, sentenced to the penitentiary for five years, and appealed to the supreme court.

He sought a reversal of the conviction principally because of alleged error in two instructions granted for the state. The opinion of the court states the facts. The two instructions complained of and criticised in the opinion of the court are as follows:

"1. The court instructs the jury for the state that manslaughter is the killing of a human being with a deadly weapon without malice, in the heat of passion and not in necessary self-defense. No mere blows with the hand or fist will justify a person in slaying his assailant with a deadly weapon. In order that a person may slay another and escape the condemnation of the law, he must have been in real or apparent danger of receiving at the hands of his assailant some great bodily harm with a deadly weapon at the time he struck the fatal blow."

"2. The court instructs the jury for the state that the law permits a man to resist force with force, but the law does not tolerate the use of a deadly weapon, unless the person using the same be in real or apparent danger of great bodily harm or the loss of his life as a result of the attack of his adversary armed with a deadly weapon, and if the jury believe from the evidence in this case beyond a reasonable doubt that the defendant killed the deceased with a deadly weapon in the heat of passion, while smarting under a blow, and when his life was in no real or apparent danger of suffering real bodily harm at the hands of the deceased armed with a deadly weapon, then you will find him guilty of manslaughter."

Reversed and remanded.

Stone &amp Stone, for appellant.

There were only two instructions asked by the state, and both were granted. Each of the two instructions was erroneous. These instructions each stated, in effect, that the appellant, Waller, in order to claim self-defense, must have been in real or apparent danger of receiving at the hands of his assailant, some great bodily harm with a deadly weapon, at the time he struck the fatal blow. No such limitations as contained in these instructions, can be found in any of the decisions of this state defining the crimes of murder, manslaughter, or even assault with intent to kill and murder. Lamar v. State, 63 Miss. 265; Fore v. State, 75 Miss. 727; Prine v. State, 73 Miss. 838. Code 1906, § 1236, paragraph (f), states that a homicide is justifiable "when committed in the lawful defense of one's own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or do some great personal injury, and there shall be imminent danger of such design being accomplished."

In passing upon the action of the accused, in a murder case, the jury should not try him by the light of after developed events, nor hold him to the same cool and correct judgment that they on the trial are able to form. They should judge of his acts from the circumstances by which he was surrounded at the time of the homicide. Dyson v. State, 26 Miss. 362; Bang v. State, 60 Miss. 71; Cotton v. State, 31 Miss. 504; Fortenberry v. State, 55 Miss. 403; Kendricks v. State, 55 Miss. 436.

In order to justify a killing as being in self-defense, it is not true that there must have been used against the slayer a deadly weapon. It is sufficient, if the slayer was confronted at the time of the homicide with such means of force as to lead to the reasonable conclusion that the slayer was in danger of great bodily harm. In the case of Saffold v State, 76 Miss. 258; 24 So. 304, this court held that it was not competent to charge the jury that an ordinary pocketknife was not a deadly weapon, but held that the jury should settle the question from the character of the knife, and the manner of its use in the...