Wicker v. State
Decision Date | 13 July 1914 |
Docket Number | 17444. |
Citation | 65 So. 885,107 Miss. 690 |
Court | Mississippi Supreme Court |
Parties | WICKER v. STATE |
For former opinion, see 65 So. 514.
APPEAL from the circuit court of Smith county. HON. W. H. HUGHES Judge.
R. O Wicker was convicted of assault and battery and appeals.
The facts are fully stated in the opinion of the court.
Judgment reversed, and cause remanded.
T. J Wills, for appellant.
Insulting words, no matter how violent and menacing they may be, do not constitute an assault at common law. "Mere words or menaces do not, of themselves, constitute an assault, and consequently mere threatening language and abuse, however violent in its character, unaccompanied by any overt act of hostility, is no legal provocation for assault and battery." 2 Am. & Eng. Ency. of Law (2d Ed.), page 957 and notes cited thereunder. In May's Criminal Law (3d Ed.), page 204, the rule is thus laid down: It is not "violence begun to be executed." Consequently, mere words can never constitute a justification for an attack on the person using them.
Insulting words at common law do not constitute an assault, and a person attacked as a result of an insult given has the right of self-defense. And under the common-law rule, appellant having used insulting words towards the prosecuting witness, Wardell, had the right to strike back in self-defense, and would not have been guilty of the crime of assault and battery if no more force was used than was necessary to repel the attack made upon him, and the record in this case shows that appellant used no more force than was necessary to ward off the attack made upon him by Wardell.
The law in this state with reference to assault and battery is the same as that enunciated by the common law. See Smith v. State, 39 Miss. 521. It is true that section 1501 of the Code of 1906, permits the giving in of evidence of insulting words used by a person as an excuse and justification for an assault and battery and leaves it with the jury to say whether the insult was sufficient to justify the assault and battery, but this section does not change the common law as to what constitutes an assault and battery, but only mitigates the offense when committed in the heat of passion aroused by the use of insulting words.
That insulting words do not constitute an assault, even under section 1510 of the Code, is shown by the very full and sound reasoning in the case of Evans v. State, 44 Miss. 762, where SIMRALL, justice, in rendering the opinion on page 773, says: "Be that as it may, there is no principal of criminal law better settled, none more necessary to the peace of society, and the safety of human life, than that threats, however deliberately made, do not justify an insult and battery, much less the taking the life of the party making them." And this opinion was rendered at a time when article 366 of the Code 1857, page 731, was in force, and is identically in its language with section 1501 of the Code of 1906.
We submit to the court, that insulting words do not constitute an assault and battery, and do not take from the person, giving the insult, the right of self-defense and especially when no more force is used than is necessary to repel the attack.
The instruction given by the state did not correctly state the law; the three instructions asked by the defendant and refused correctly stated this principle of law and it was an error for the court to refuse to so instruct the jury.
Frank Johnston, for appellee.
The question involved in the case is, whether this insulting epithet was an excuse or justification for the blow that Wardell struck Wicker. The trial judge instructed the jury in effect, that if the defendant provoked the difficulty with an insult, although Wicker struck the first blow they should find the defendant guilty.
The instruction for the defendant holds the contrary of this doctrine--that no insulting words would justify an assault and battery and if Wicker struck the first blow, that Wardell had a right to strike back.
Section 1501 of the Code of 1906 is as follows: In trials for assault and battery, or for assault, the defendant may give in evidence, in excuse or justification, any insulting words used by the person on whom the assault or assault and battery was committed, at the time of the commission thereof, towards the defendant, and the jury may consider and determine whether such words were or were not a sufficient excuse for or justification of the offense committed."
The statute clearly provides that the defendant may give in evidence an excuse or...
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