Walton v. State.

• Decision Date: 16 January 1928
• Docket Number: 26790
• Citation: 115 So. 215,149 Miss. 406
• Court: Mississippi Supreme Court
• Parties: WALTON v. STATE. [*]

115 So. 215

149 Miss. 406

WALTON v. STATE. ^[*]

No. 26790

Supreme Court of Mississippi

January 16, 1928

Suggestion of Error Overruled Feb. 6, 1928.

Appeal from circuit court of Lauderdale county. HON. J. D. FATHEREE Judge.

Marion Walton was convicted of homicide, and he appeals. Affirmed.

See also, 112 So. 790.

Judgment affirmed.

Aubert C. Dunn and Chas. B. Cameron, for appellant.

The court instructed the jury for the state; "that if the defendant and Eugene Huggins agreed between themselves to rob the store of McCarty and if the defendant and Huggins attempted to carry out such agreement, while the defendant was present for the purpose of aiding him, if any such there was, then the deceased had a right to arrest both or either of them without a warrant and in effecting such arrest, if any there was, he had a right to use every reasonable means that any reasonable person situated as he was would have used under like circumstances." At the threshold of this instruction we find patent error, for the reason that this instruction did not confine the jury to the evidence, in its deliberations, but simply undertook to announce an abstract proposition of law. In addition to this, the instruction did not even require the jury to believe these facts, or the existence of these facts from the evidence beyond a reasonable doubt. It is elementary that the facts constituting crime must be believed by the jury from the evidence beyond a reasonable doubt. The most serious aspect of this instruction, however, and a more glaring error according to my construction of the same is, the assumption on part of the court in the instruction of the existence of an agreement between Eugene Huggins and this appellant to rob the store of Mr. McCarty; and the further assumption of an agreement between Huggins and the appellant to carry out the agreement while the appellant was present for the purpose of aiding him. There is no testimony in the record authorizing the granting of this instruction, in which the question of conspiracy was thereby submitted to the jury.

The second instruction is also a statement of an abstract proposition, and did not confine the jury to believing the existence of those facts from the evidence, nor did it confine the jury to believe such facts from the evidence beyond a reasonable doubt. In addition to this criticism, this instruction also charged the jury that if Eugene Huggins stole as much as twenty-five dollars from the cash drawer of the deceased that a felony was committed. This phase of the instruction was certain error, for the reason that this appellant in the absence of any proof of conspiracy was not held accountable for any of the criminal acts of the man Huggins.

The learned attorney-general says that while these instructions for the state may have been error, that they have been cured by instructions granted for the appellant. We are wholly unable to see where these errors were cured by any instructions granted the appellant, but respectfully call the court's attention to the fact that no instruction of the defendant's undertakes to cure, nor in fact does it cure the action of the court in granting the two above-mentioned instructions for the state.

The instruction defining self-defense should have been granted, and the refusal of same was error.

J. A. Lauderdale, Assistant-Attorney General for the state.

Instructions numbered one and two, granted at the request of the state, instructed the jury with reference to the law as to the right of McCarty to arrest the appellant. These instructions are correct propositions of law and were supported by the testimony in this case. The facts and circumstances occurring at the time of the murder were certainly sufficient to cause Mr. McCarty to reasonably believe that a felony was being committed, and that both Huggins and Walton were implicated therein. Even though these instructions are erroneous, appellant cannot complain because he requested and was granted instructions announcing the same propositions of law.

These instructions for the state and for the defendant were far more favorable to the defendant than the law, for, even though it be conceded that McCarty arrested Walton without any excuse or justification or without any legal right to do so, this of itself would not have justified Walton in killing McCarty. In other words, a person does not have the right to resist an illegal arrest to the extent of taking the like of the arresting party. Wilkinson v. The State, 143 Miss. 324.

There is no testimony in this record supporting the theory that Walton killed McCarty in self-defense. The court had already granted several instructions on self-defense, and even thought the testimony did support the theory of self-defense, it would not have been error for the court to have refused this instruction after granting several on the same theory.

Argued orally by Chas. B. Cameron, for appellant, and J. A Lauderdale, for the...