Williamson v. State

• Decision Date: 05 November 1917
• Citation: 76 So. 637,115 Miss. 716
• Court: Mississippi Supreme Court
• Parties: WILLIAMSON ET AL v. STATE

76 So. 637

115 Miss. 716

WILLIAMSON ET AL v. STATE

Supreme Court of Mississippi

November 5, 1917

October 1917

Division A

APPEAL from the circuit court of Sunflower county, HON. W. H HUGHES, Judge.

Ode and Cooper Williamson were convicted of murder and appeal.

Appellants Ode and Cooper Williamson, were indicted jointly with Mrs Cola Nichols, for the murder of one Walter Nichols, the father-in-law of Mrs. Cola Nichols, who had separated from her husband, David Nichols, some months prior to the killing. A severance was obtained, and appellants were tried separately from Mrs. Nichols, and from a conviction of murder and life sentence in the penitentiary, they appeal. The record shows that the appellants went to the home of the deceased, where deceased was killed by Ode Williamson. There was a conflict in the evidence as to who provoked the difficulty. Among other instructions given at the request of the state was instruction No. 4, which is as follows:

"The court instructs the jury for the state, that the law in this case is, that a person cannot arm himself with a deadly weapon, with the intention of using it to overcome his adversary, if necessary, and so armed, go upon the premises of another and provoke a difficulty with him, and in such difficulty slay his adversary with such deadly weapon, and then be heard to say that he acted in self-defense."

Reversed and remanded.

Bee King, A. M. Edwards and A. W. McRaney, for appellants.

We especially call the attention of the court to instruction No 4, which reads as follows: "The court instructs the jury for the state, that the law in this state is that a person cannot arm himself with a deadly weapon with the intention of using it to overcome his adversary, if necessary, and so armed, go upon the premises of another and provoke a difficulty with him and in such difficulty slay his adversary with such deadly weapon and then be heard to say that he acted in self-defense." This is virtually a peremptory instruction and takes from the defendant in the case the right of self-defense, and was highly prejudicial to the defendants and the law as announced in this instruction is not applicable in any measure to the facts in this case, because there is no evidence showing that defendants went upon the premises of the deceased for the purpose of provoking a difficulty, or that they provoked a difficulty after they reached said premises, but all the evidence in the case both for the state and for the defendants shows that defendants left the premises or attempted to leave said premises immediately after discovering the deceased was at home and that whatever their intentions might have been and whatever their purpose in the beginning might have been whether good or evil, that they abandoned their purpose upon meeting the deceased and fled. Certainly it cannot be the law that because they were upon the premises of deceased, they would be denied the right of self-defense after the abandonment of their purpose, however evil it might have been. This theory of the law is condemned by this court in the case of Jones v. State, 84 Miss. 196, in which the following language is used: "It is well settled that one may wrongfully provoke a difficulty and yet if afterwards at any moment during its progress, he in good faith abandons the conflict and is subsequently murderously assaulted by the deceased and is forced to slay in self-defense, he is not estopped from pleading self-defense in justification of his acts. Smith v. State, 75 Miss. 553, 23 So. 260; Patterson v. State, 75 Miss. 675, 23...