Williams v. State

• Decision Date: 14 July 1919
• Docket Number: 20676
• Citation: 84 So. 8,122 Miss. 151
• Court: Mississippi Supreme Court
• Parties: WILLIAMS v. STATE

84 So. 8

122 Miss. 151

WILLIAMS v. STATE

No. 20676

Supreme Court of Mississippi

July 14, 1919

1 HOMICIDE. Self-defense a question for the jury.

On a trial for homicide, evidence held to make a question for the jury as to impending danger at the time of the killing.

2. CRIMINAL LAW. Reference by prosecuting attorney to mobs and mob law in trial of negro held, improper.

On the trial of a negro for killing a white man, it was improper for the prosecuting attorney in his argument to remark that it was to the credit of the good citizen of A. that they permitted defendant to have a fair trial in court rather than take their vengeance at the hands of an angry mob.

3 HOMICIDE. Killing of deputy sheriff in resisting unlawful act constituted manslaughter.

Under Code 1906, section 1237 (Hemingway's Code, Section 967) making every person unnecessarily killing another, while resisting an attempt by such other person to commit any felony or do any unlawful act, guilty of manslaughter, where deputy sheriffs, after arresting a negro, instead of taking him to jail or proceeding to charge him with a violation of the law, whipped him to make him tell what he had done with a pistol, and, while proceeding with him to the place where he said the pistol was one of them was shot and killed by him, the offense was manslaughter as a matter of law, as their unlawful acts were still continuing at the time of the killing.

4 HOMICIDE. Killing in resisting unlawful act not murder, though malicious.

Code 1906, section 1237 (Hemingway's Code, section 967), making an unnecessary killing while resisting an attempt to commit a felony or do an unlawful act manslaughter, necessarily implies an intentional killing, and malice not pre-existing does not render the killing murder.

SYKES, J. AND SMITH, C. F., dissenting.

HON. H. H. ELMORE, Judge.

APPEAL from circuit court, Washington County, HON. H. H. ELMORE, Judge.

Anthony Williams was convicted of murder, and he appeals. Reversed and remanded on suggestion of error.

Affirmed.

A. H. Turnage, for appellant.

We contend that the defendant is either guilty of manslaughter or he is guilty of nothing. If he shot and killed the deceased in self-defense then he is guilty of nothing. If he shot the deceased while his blood was hot and before he had had time to cool because of the whipping he had been submitted to, then he is guilty of manslaughter. If he shot and killed the deceased in the purview of section 1237, Code 1906, then he is guilty of manslaughter.

Section 1237, Code 1906, reads: "Every person who shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any unlawful act, or after such attempt shall have failed, shall be guilty of manslaughter."

Here deceased, and both these two negro witnesses Lucius Blevin and Mat Williams, and also Mr. Tommie Williams, the principal state's witness, had, just prior to the killing been inflicting upon the defendant a "horse whipping," having at the time pistols in their possession, and certainly with the intent of intimidating the defendant and to prevent him from defending himself. There can be no doubt of this, and certainly no reasonable court can question it.

Section 1044, Code, 1906, reads: "If any person assault and beat another, with a cow-hide, whip, or stick, having at the time a pistol, or any other deadly weapon in his possession, with intent to intimidate the person assaulted, and prevent him from defending himself he shall, on conviction, be imprisoned in the penitentiary not longer than ten years."

This last section then makes it manifest that the deceased and his confederates had been, just a few minutes prior to the killing, committing a felony, and from all physical facts and indications were about to commit it again. See Long v. State, 52 Miss. 23, where the court used this language: ". . . If it occurred after the lapse of any considerable time, it would seem impossible to divest it of the element of malice. Thus construed the statute amounts to this: If I see another engaged in the commission of an offense against the criminal laws and I resist the accomplishment, and in such resistance slay the person so engaged, my crime will be manslaughter and not murder, even though the act of killing was unnecessary to defeat his act; and the same result will follow where the killing ensues instantly after the abandonment by him of his attempt. Because I am engaged, or had just been engaged, in resisting the doing, by him, of an unlawful act, the law will, to some extent, throw the mantle of charity over the necessary slaughter committed by me, by reducing my offense from murder to manslaughter. It amounts to a legal imputation of heat of blood for my benefit, whether in point of fact the jury should believe that there was such or not."

It appears that all these parties had walked about three hundred or four hundred yards from the place where the whipping had been inflicted to where the killing occurred. This must have required not more than ten minutes, or that is to say the killing occurred within ten or fifteen minutes from the time defendant had been whipped by deceased and his confederates. Had sufficient time passed for the blood to cool? We most respectfully urge that the blood was even hotter at the time of the killing than it was during the infliction of the whipping. 21 Cyc., page 736; McDonald v. State, 29 So. 171; Smith v. State, 58 Miss. 867; Preston v. State, 25 Miss. 383, 1 S. & M. 381.

The court should have given a more definite, explicit and full instruction on the crime of manslaughter, defining the crime, telling the punishment, and exactly what constituted it. See May v. State, 42 So. 164, and Johnson v. State, 23 So. 579. In this last case the court said: "A more unsatisfactory case on the testimony was, perhaps, never presented to an appellate tribunal There was not a charge given on either side as to manslaughter, and yet, on the proof, we think there might have been, properly a verdict of manslaughter. We do not mean to say that a verdict of murder would be improper, on the testimony, if there had been no error of law. But since a verdict of manslaughter might also be upheld, it was, in the distressingly conflicting state of the evidence, to the last degree important that no error of law should have been committed. It is true that instruction No. 4 given for the defendant attempted to be an instruction on manslaughter, but that instruction by itself alone, is too narrow, for it did not define manslaughter, and did not tell what the punishment could be, and was therefore deficient in failing to properly define it. Instruction No. 5 given for the state shut the jury up to find a verdict either for murder or for nothing. If the state argues that we cannot complain of the failure of the court to give an instruction on manslaughter when we did not ask for it, we refer your attention to May v. State, supra.

The court should not have given instruction No. 1 for the state at all, but if such an instruction had been proper, it should have been modified by carrying with it a clause on manslaughter. There was absolutely no evidence to support instruction No. 1 for the state. By it the court simply told the jury to find the defendant guilty as charged in the indictment, if it believed him to be guilty. He could have been guilty and still not guilty as charged. See Johnson v. State, supra. The evidence here so manifestly fails to support a verdict of murder that the court should have been very particular in giving an explicit instruction on manslaughter for that is certainly the very worst verdict the evidence will sustain.

And finally we come to the argument of the county attorney when he used the following language: "Be it said to the eternal credit of the good citizens of Arcola that they have permitted this defendant to have a fair trial here in a court of justice rather than taking their vengeance at the hands of an angry mob."

This language was admitted by the said attorney as having been used by him. (See his testimony, pages 67 to 71 of the transcript.) On the motion for new trial we insisted that he prolonged his argument on this line for several minutes, but we were promptly met by a stout denial from the said attorney, and his position being backed by the trial court we will, of course have to say that we were wrong. But it seems strange that this sentence would have been dropped, as by chance, right in the midst of an argument. If it were dropped in such a manner what were the jury to infer from it? Mr. Toombs is reputed to be an able prosecutor, a fair lawyer in every way, and none can vouch stronger for his reputation being accurate than we can. But we do respectfully submit that to have dropped it in the midst of an argument to which it had no reference whatever strikes us as somewhat peculiar. There is no doubt that it struck the jury in a similar way. There certainly can be no doubt that it made some impression on the jury, just what, how can we even surmise. There is but little question that some member, at least, of the jury heard it, especially after the defendant had called the court's attention to it and had requested the court to stop that line of argument and the court saying it did not consider such remarks improper. Then what impression did all that make on the jury? Who can tell? I submit that it did make an impression, and that to say the very least of it, that impression was not for the good of the defendant. If it made an unfavorable impression, or if there is a reasonable doubt that it did make an unfavorable impression, then that doubt should be resolved in favor of this defendant and he should be granted another trial,...