Wood v. State

• Decision Date: 19 January 1903
• Court: Mississippi Supreme Court
• Parties: GEORGE W. WOOD v. STATE OF MISSISSIPPI

33 So. 285

81 Miss. 408

GEORGE W. WOOD v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

January 19, 1903

FROM the circuit court of Lincoln county. HON. ROBERT POWELL Judge.

Wood appellant, was convicted in the circuit court of Lincoln county of the murder of one William Netherland. He was sentenced to the penitentiary for life, and appealed to the supreme court.

The testimony showed that appellant and his brother were proprietors of a traveling Punch and Judy show, and were giving an entertainment on Pearch creek, in Lincoln county January 14, 1902, the day of the homicide. The evidence for the state was to the effect that Wood came out of the tent and said something to some boys who were on a wagon near the tent, among them being one Albert Lambert, and having some angry words with Lambert, struck him and knocked him off the wagon. Lambert, arising, jerked a picket off a fence, and Wood ran back into the tent, raised the curtain, and said "I will stop some of the damned sons of bitches," and fired twice, one of the shots striking Netherland in the back near the shoulder blade, from the effect of which he died soon after. The evidence for the defense was to the effect that there was an opening in the tent near the top, and several boys got on a wagon to look into the show, when the mother of Wood came out and remonstrated with them, telling them to pay their fare and come inside, like gentlemen, and they would get value for their money; that one of them insulted her, just as defendant came out of the tent, whereupon one of the crowd applied a vile epithet to him. Wood asked who it was that had so spoken, when Albert Lambert said he was the man. Defendant then went to Lambert, and knocked him off the wagon. Lambert arising, got a picket off a fence and started toward defendant; and several of the others, Lambert's companions, had knives, and all pursued defendant, who ran back into the tent; just then Netherland raised the curtain of the tent, and was entering it, when he was shot by defendant. The opinion of the court contains a further statement of the facts.

Reversed and remanded.

A. C. McNair and G. G. Lyell, for appellant.

The fourth instruction given the state is inapplicable to the case and therefore erroneous.

The instruction as an abstract principle of law is correct, but it is not only inapplicable to the facts of this case, but is misleading. In the case of Strickland v. State, recently decided by this court, this court held that an instruction based on facts not altogether dissimilar to the facts of this case, in almost the same words as is this instruction was inapplicable and that it was error in the trial court to give it. 32 So. Rep., pp. 921; S. C., ante, p. 134. The instant case falls squarely within the principle of that case. The vice of the ninth instruction for the state is that it restricts the right of the defendant to act to the mere fact of Netherland's going under the tent, and shuts off from the jury the acts of Lambert and others on the outside of the tent immediately preceding the entry of Netherland and the shooting. It, too, fails to state that Wood had the right to shoot if the danger was apparent to him, and conveys the idea that the danger must have been actual in order to justify the shooting. The instruction was misleading and should not have been given.

William Williams, assistant attorney-general, for appellee.

Counsel for the appellant admits that the fourth instruction as an abstract principle of law is correct, but contends that it is inapplicable to the facts of this case, and cites Strickland's case, decided at this term, in support of this contention. The facts in this case are not similar to the facts in Strickland's case, as will be seen by a comparison of the two cases.

The facts, as disclosed by the record, show that appellant, after having some little altercation with one Lambert on the outside of a show tent, went across the yard, got a pistol went into the show tent and when the deceased, who had in no way disturbed or molested appellant, started into the tent holding his little child by the hand, appellant fired and killed deceased without knowing who deceased was, or without any word having been said to him by deceased or without deceased having made any demonstration whatever toward appellant. In other words appellant...