Wood v. State

• Decision Date: 16 May 1887
• Citation: 2 So. 247,64 Miss. 761
• Court: Mississippi Supreme Court
• Parties: WELLINGTON WOOD v. THE STATE

2 So. 247

64 Miss. 761

WELLINGTON WOOD v. THE STATE

Supreme Court of Mississippi

May 16, 1887

April 1887

APPEAL from the Circuit Court of Oktibbeha County HON. W. M. ROGERS Judge.

Wellington Wood was indicted for assault and battery with intent to kill and murder Socratus Scott, called "Crate Scott." The evidence for the State tended to show that Wellington his brother (Lee Wood), and others went to the house of "Crate" and Joe Scott and began a friendly conversation with them which shortly turned in reference to certain hogs; that during the progress of the conversation Wellington Wood charged the Scotts with marking in their own mark certain hogs belonging to him; that "Crate" Scott thereupon called Wellington Wood a "damn liar" and struck at him across the fence, the former being inside and the latter outside of the yard; that Wood retreated a few steps, drew his revolver, and fired without effect; that Scott seized a piece of board about three feet long, one- half inch thick, and three inches wide, got over the fence or through the gate, and knocked the pistol out of Wood's hand; that thereupon Lee Wood rushed up and began to beat "Crate" Scott over the head with a stick and while Scott was defending himself against Lee Wood's attack, Wellington Wood rushed up and stabbed Scott in the back with a knife, inflicting a dangerous wound.

The evidence for the defendant tended to show that he and his party had started out in search of a lost pony belonging to defendant; that one set were to go one way, and the other another, and both to meet in front of Scott's house, it being the natural and most convenient meeting-place; that defendant and his companion reached the meeting-place first and while waiting for the other searchers, who were then in sight, began to talk to the Scotts about the pony, when the conversation turned to the subject of certain hogs, when defendant charged the Scotts with marking his hogs, and that thereupon Joe Scott called him a "damn liar" and "Crate" Scott called him a "God damned liar" and struck at him, and that defendant (Wood) staggered back a few feet, drew his pistol as if to shoot, when one of his party called out to him: "You have done wrong; give me that pistol, " and that defendant raised his pistol about fifty degrees from the horizon and it went off accidentally while in that position; that defendant then dropped his loaded pistol and thereupon "Crate" Scott struck him with the board; that defendant staggered back as if dazed, when his brother came to his rescue, and that defendant did not go near "Crate" Scott after that, and that defendant cut Scott while the latter was striking him over the head with the board.

During the examination of Joe Scott, a witness for the State, he stated that he and his brother had not "marked" any of defendant's hogs. On cross-examination the witness was asked, "Did not you and your brother, 'Crate' Scott, at one time just previous to the difficulty, mark one of Wood's hogs in your mark, and didn't you afterward admit it?" The counsel for the State objected to the question, the court sustained the objection, and the defendant excepted.

The court refused the following instructions asked by the defendant:

"1. Self-preservation and the right of self-defense is a law of nature, and if the jury believe from the evidence that the defendant, Wellington Wood, in inflicting the injury upon the plaintiff, was acting in necessary self-defense then they will find the defendant 'not guilty.'"

"4. The law is that no words spoken by Wood to Scott, as claimed by some of the witnesses (if the jury believe from the evidence that such words were spoken), justified 'Crate' Scott or any one either in giving Wood the 'damn lie, ' the 'God damn lie, ' or the 'lie, ' nor would any mere words spoken by Wood to Scott (if the jury believe from the evidence that such words were spoken), justify Crate Scott or any one in striking Wellington Wood, because the law does not allow a man thus to become the avenger of his real or fancied wrongs."

"12. In penal jurisprudence there can be no middle ground; the party must be absolutely and unconditionally guilty or not guilty, and the jury, in passing upon the guilt or innocence of the defendant, before they can legally convict, should be just as well satisfied of the defendant's guilt as if he were on trial for murder."

"13. It should ever be borne in mind that no man can be asserted to be legally guilty of an offense unless his guilt shall have been established according to the forms of law and the principles of law. In no case should a disregard of the law itself or its established forms be tolerated from any considerations of difficulty in the conviction of offenders."

"15. Any person may lawfully slay another when such slaying is done in the lawful defense of such person or any other human being, when there shall be reasonable ground to apprehend a design on the part of the person killed to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished, and killing of a human being is excusable when done by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation."

"22. A man assaulted with a weapon or other means likely to produce great bodily harm or personal injury is not bound to wait until his antagonist is on equal terms with him, but may rightfully use the advantage he has, and in so doing is not guilty of an unlawful assault."

"23. If the defendant, even though he provoked the attack, has withdrawn from the conflict and makes no further effort to injure the opponent, his right of self-defense is not taken away, notwithstanding previous violence on his part."

The district attorney, in opening the argument for the State, said: "With the fact of marking the hogs, gentlemen, you have nothing to do, except that you know that Joe Scott stated on the stand that there was not a word of truth in the charge about marking the hogs." In his closing argument he said: "Here is a poor fellow who, as the doctor tells you, has for two long, weary years been unfit for manual labor." The court here interrupted him and said that the matter of defendant's unfitness for manual labor was excluded, and the jury were not to regard it. Thereupon the district attorney said: "Yes, but the doctor says his lung is collapsed, and this jury knows from that he is unfit for manual labor." To all of these remarks of the district attorney the defendant excepted.

While the counsel for the defendant was speaking the circuit court gave certain additional instructions for the State, at the request of the district attorney, and also modified the sixteenth instruction of defendant, as set out in the opinion of this court. To this action of the court the defendant excepted.

The jury found the defendant guilty, and from the judgment of the court he appealed.

Judgment affirmed.

Nash & Alexander, for the appellant.

1. The indictment was defective, and the motion to quash and the motion in arrest of judgment ought to have been sustained. It is not sufficient to use the word "feloniously" after the statement of the intent. It should precede it and characterize the assault. The assault is the act upon which the whole charge is predicated. While the intent is that which may raise a simple assault to an offense of a higher grade, yet the assault is in both degrees the gravamen of the offense, the act but for which there could be no crime. It is, therefore, necessary for the assault to be charged to be felonious.

The third assignment of errors is well taken. It was competent to ask Jo. Scott on cross-examination as to the marking of the hogs.

It was competent as an original question, and certainly competent after he had been asked by the State if they had marked the hogs and had said that they had not.

The testimony, if originally incompetent, was made competent by the examination of the State's witness, Jo. Scott. He was asked if he and his brother had marked any of defendant's hogs, and his answer was, "We have not marked any of Wood's hogs."

The State went voluntarily into this question to show, if possible, a motive on the part of Wood, and it was proper to do so, as was held by this court at the October term, 1886, in a case where the court said that such an inquiry was proper to show a motive, and it was further proper to go into the details to show the extent of the motive. Certainly after this question and its answer it was just and legal for defendant to rebut this testimony. It was competent to free himself from the imputation of being a willful calumniator, and also competent under the general rule of evidence, i. e., that a witness can be cross- examined as to any matter testified about by him in order to test his accuracy and veracity.

A defendant has the right to cross-examine even upon immaterial matters when brought out by the adverse party. 1 Wharton Evidence 529.

In any view a witness may be cross-examined as to his examination-in- chief in all its bearings. Ib. 530.

2. We now notice the instructions asked by defendant and refused.

The first charge announces the plain, simple principle of self-defense, and we are at a great loss to know why the learned judge refused it.

We suppose the court thought it error to call this right a law of nature. The court, in the case of Long v. State, 52 Miss. 38, says that this is a truism and as an abstract charge might properly be given. Certainly when prefixed to the main and leading charge of this defendant this truism would not vitiate it. The error in refusing this charge was not cured in any other. There are other charges defining self-defense and how and under what circumstances acts...