Windham v. State
| Decision Date | 16 March 1908 |
| Citation | 45 So. 861,91 Miss. 845 |
| Court | Mississippi Supreme Court |
| Parties | ANSELM WINDHAM v. STATE OF MISSISSIPPI |
October 1907
FROM the circuit court of Smith county, HON. ROBERT L. BULLARD Judge.
Windham appellant, was indicted and tried for the murder of Saloney Ainsworth; was convicted of manslaughter, and sentenced to the penitentiary for a term of six years and appealed to the supreme court.
The opinion of the court states the facts.
The second instruction for the state, referred to in the opinion was as follows:
The seventh and eighth instructions for the defendant passed upon by the court are sufficiently stated in the opinion.
Reversed and remanded.
W. H. Hughes, for appellant.
The granting of the second instruction for the state was error. It had been shown clearly in evidence that the deceased and his father had conspired to take the life of appellant, and the conspiracy was known to appellant shortly before the difficulty. The instruction was to the effect that although the jury should find that the father was the aggressor in the difficulty leading to the death of the son, and should find that appellant would have been justifiable in killing the father at the time of the homicide, yet this would not justify appellant in taking the life of the deceased, unless appellant was in immediate danger, actual or apparent, of loss of life or great bodily harm at the hands of the deceased. When the deceased was killed, the appellant was actually fighting for his life with one of the conspirators, the father, and did not see the danger threatening him from the son, until appellant's own father cried to him that Saloney was coming upon him with a knife. It was then that the appellant turned and fired, almost instantaneously. Certainly the appellant was legally justifiable, under these circumstances, in shooting Saloney Ainsworth, whether the danger threatening him at the time from Saloney Ainsworth was or was not apparent. That which is "apparent" is "visible to the eye," and this second instruction for the state should not have been given.
It was also error in the court below to permit the learned district attorney, in his closing argument to the jury, to state that the jury should remember that if they should find appellant guilty of manslaughter the judge could, in his discretion, punish him, either by fine and jail sentence or by a term in the penitentiary. Ellerbe v. State, 79 Miss. 10; s.c., 30 So. 57.
May, Flowers & Whitfield, on the same side.
It is apparent that this is a very close case on the facts, and it is doubtful, under the conflicting evidence, whether appellant or some one else shot the deceased. It is also apparent that Coon Ainsworth, the father of the deceased, commenced the difficulty, and that close friends and adherents of the deceased were present at the time, to the obvious prejudice of appellant. In the midst of the difficulty between appellant and the father of deceased, and while so many shots were being fired by different parties as to sound like a canebrake burning or pop-corn bursting, appellant's father cried out to him that Saloney Ainsworth was coming upon him from the rear with an open knife; whereupon the appellant, turning slightly, hastily shot under or over his left arm directly behind him. But the proof is not clear that appellant's shot was the one, out of the many flying through the air, which killed appellant.
To convict a person whose innocence is even more apparent than his guilt, under the proven facts, would be to do away with the fixed rules of law that to sustain conviction the defendant must be shown to be guilty beyond reasonable doubt, and that it is better that ninety and nine guilty men should escape just punishment than that one innocent man should be unjustly punished.
But, even if the proof showed that the appellant killed the deceased, the killing was justifiable as being done in self-defense. Coon Ainsworth and Saloney Ainsworth were manifestly seeking an opportunity to do great bodily harm to appellant, for some time before the immediate difficulty. Father and son had acted in concert all the way through the different events leading up to the homicide. Accordingly, a threat or an overt act at this last stage of proceedings, in the midst of the excitement, coming from the father of deceased was practically the same as a threat on the part of the deceased. If the appellant would have been justifiable in killing Coon Ainsworth at the time he was in the altercation with him, it must follow that he was justifiable in killing the son, Saloney Ainsworth, inasmuch as the father and son were jointly engaged in the attack upon appellant, even though the father made the first overt act in the attack. This being true the second instruction granted for the state was erroneous.
It is clearly evident, from uncontradicted testimony, that appellant had reasonable grounds to apprehend danger, in view of the threats made against him by the father and son jointly and severally, and the second instruction for the state is erroneous in that it takes from the jury the right to consider whether the actions of the father and the son toward appellant were so closely allied as to be one and the same.
It was error for the court below to allow the district attorney to argue to the jury the degrees of punishment that might, under different findings, be imposed upon the appellant. Ellerbe v. State, 79 Miss. 10; s.c., 30 So. 57; Brown v. State, 72 Miss. 997; s.c., 17 So. 278.
It was also error to refuse the seventh instruction for the defendant. This instruction told the jury that, in passing upon the appellant's action at the time of the difficulty, they should not hold him to the same cool and correct judgment which they themselves were able to form after hearing the evidence, but that they should put themselves in the appellant's place, as it were, and then judge of his acts by the facts and circumstances...
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