Woods v. State

• Decision Date: 07 November 1938
• Docket Number: 33312
• Citation: 183 So. 508,183 Miss. 135,184 So. 311
• Court: Mississippi Supreme Court
• Parties: WOODS v. STATE

183 So. 508

184 So. 311, 183 Miss. 135

WOODS v. STATE

No. 33312

Supreme Court of Mississippi

November 7, 1938

(Division B.)

1. CRIMINAL LAW.

Where special venire was drawn without request by attorneys appointed to defend defendant for further time to confer with defendant, and where a disinterested policeman was available at trial who, to defendant's attorneys' knowledge was able to testify relative to fresh wound of defendant overruling defendant's application for a continuance when case came on for trial because of absence of doctor who treated wound and who, unknown to defendant's attorneys had moved to another town, was not an abuse of trial court's discretion.

2. CRIMINAL LAW.

To deny defendant a continuance after special veniremen have appeared in court, where no intervening circumstances or events have transpired between date of drawing the venire and date of trial, is not an abuse of discretion, especially where the special venire was drawn upon application of defendant.

3 HOMICIDE.

An instruction which deprives defendant of plea of self-defense should never be given except where proof on behalf of state clearly shows that defendant, armed with deadly weapon for purpose, becomes aggressor in difficulty in regard to which plea is invoked.

4 HOMICIDE.

An instruction, that, if jury believed beyond reasonable doubt that defendant made up her mind to maliciously kill deceased and that, armed with knife for such purpose, defendant followed deceased to deceased's home and attacked and killed deceased without abandoning such purpose, defendant was not entitled to set up any act of deceased either before or at time of killing as defense to such killing, properly instructed jury as to elements state was required to establish before defendant would be deprived of her plea of self-defense.

5. HOMICIDE.

Evidence warranted instruction that, if jury believed beyond a reasonable doubt that defendant made up her mind to maliciously kill deceased, and, armed with knife for such purpose followed deceased to deceased's home and attacked and killed him without abandoning such purpose, defendant was not entitled to set up any act of deceased by way of defense to such killing.

ON SUGGESTION OF ERROR. (Nov. 7, 1938.)

1. HOMICIDE. A person who provokes a difficulty, armed in advance intending if necessary to use his weapons to overcome his aggressor, deprives himself of the right of self-defense. 2. HOMICIDE. A defendant who was accustomed to carry knife which was used in killing and who, while armed with knife, followed and apprehended the deceased and provoked difficulty with him, being the aggressor and intending all the while to use the knife, if necessary, to overcome him, was deprived of right of self-defense. 3. HOMICIDE. An instruction that if jury believed beyond a reasonable doubt that defendant made up her mind to maliciously kill deceased and that, armed with knife for such purpose, defendant followed deceased to deceased's home and attacked and killed deceased without abandoning such purpose, defendant was not entitled to set up any act of deceased, either before or at time of killing, as defense to such killing was not reversible error, under evidence. 4. CRIMINAL LAW. On suggestion of error on which it was urged that former opinion was in conflict with prior opinion of court, the Supreme Court would re-examine record in relation to points not theretofore argued as error in one of instructions complained of as well as those previously emphasized in brief, where counsel representing appellant on brief did not appear for her in trial court and no motion for new trial was made in trial court.

Division B

October 10, 1938

APPEAL from the circuit court of Adams county HON, R. E. BENNETT, Judge.

Lucille Woods was convicted of manslaughter, and she appeals. Affirmed.

On suggestion of error. Suggestion of error overruled.

Affirmed. Suggestion of error overruled.

Engle & Laub, of Natchez, for appellant.

All persons accused of crime should be allowed a reasonable time in which to prepare for their defense, when they are brought before the courts to answer the charges preferred against them.

Coker v. State, 89 So. 222, 82 Fla. 5.

In Moore v. State, 52 So. 971, 59 Fla. 23, it was held that not Only the accused but also his counsel are entitled to a reasonable time in which to prepare for trial after the accusation is made and what is a reasonable time is to be determined from all the facts in the case

Section 26 of the Mississippi Constitution contemplates a fair and impartial trial of a defendant and a fair and impartial trial contemplates reasonable time to investigate, prepare and present a defense.

Christie v. State, 114 So. 450, 94 Fla. 469.

We respectfully submit that there was error in Instruction No. 2 given the State. This instruction omits the element that the deceased, Son Tyler, at the time of the killing was not then and there an aggressor in the fight or, in others words, leaves out the element that the defendant, Lucille Woods, would not hare been justified even though she killed in self-defense.

The right of self-defense is always present. The right of self-defense is never taken away from any defendant.

Blalock v. State, 31 So. 105, 79 Miss. 517; Hartfield v. State, 170 So. 531, 176 Miss. 776; Coleman v. State, 176 So. 714, 179 Miss. 661.

The law is that she must have armed herself for the purpose of provoking the difficulty and overcoming opposition if necessary. If the purpose to overcome opposition arose after the arming, the right of self-defense is not cut off. The instruction nowhere clarifies or carries this thought and in that regard the instruction was capable of no legitimate use although it was usable to befuddle the jury in argument.

Thomas v. State, 61 Miss. 60; Long v. State, 52 Miss. 23; Allen v. State, 66 Miss. 385, 6 So. 242; Helm v. State, 67 Miss. 562, 7 So. 487; Ross v. State, 158 Miss. 827, 131 So. 367.

A great deal of what we have had to say in reference to the second instruction is applicable to the third instruction obtained by the state.

The instruction no where contains the language "intent" or "specific intent," which is the term employed in instructions covering crime.

It is essential to the existence of "malice aforethought" not only that there shall have been a design or intention to effect the death of the person killed, but that the killing shall have been without justification.

Ellis v. State, 66 So. 323, 108 Miss. 62.

Engle & Laub, of Natchez, for appellant on Suggestion of Error.

The opinion in this case as rendered is at variance with the principles of law as enunciated by this court through Division "A" on September 12, 1938, in the case of Vance v. State, No. 33, 130, and reported in 183 So. 280, the official report of which case in the advance sheets has come out since the rendition of the opinion in the instant case of Lucille Woods v. State.

In the Vance case the instruction was as follows: "The court instructs the jury for the state that the law tolerates no excuse and accepts no justification for the shooting of one individual by another upon a plea of self defense, unless it be reasonably necessary so to do in order to save the defendant from great bodily harm or to save the life of the individual who fires the shot, at the very time the fatal shot was fired; and in this case if you believe from the evidence beyond a reasonable doubt that the defendant, J. C. Vance, wilfully, unlawfully, feloniously and of his malice aforethought shot and killed E. C. Harrington at a time when he, the said J. C. Vance was not in any immediate danger, real or apparent, of losing his life or of suffering great bodily harm at the hands of the said E. C. Harrington, then the defendant, J. C. Vance, is guilty as charged and it is the sworn duty of the jury to so find. The court further instructs the jury for the State that the malice aforethought necessary to constitute murder in this case need to have existed for only an instant before the fatal shot was fired."

Now compare the Vance instruction with Instruction No. 2 in the instant case and Your Honors will see that both instructions tell the jury the same thing in practically the same words. But what has our Supreme Court in Division "A" to say in the Vance case about such an instruction as being prejudicial to the rights of a defendant. It says, through Mr. Justice McGOWEN, as appears under head note under Point 4 of the decision the following: "Under all the evidence as to what occurred in the store during the difficulty, the phrase 'at the very time the fatal shot was fired' circumscribed the right of self-defense within too narrow limits, and has been in principle heretofore disapproved by this court. Fortenberry v. State, 55 Miss. 403; Ellerbee v. State, 79 Miss. 10, 30 So. 57; Bang v. State, 60 Miss. 571; Dyson v. State, 26 Miss. 362; Case v. State, 17 So. 379. It was harmful in this case."

When appellant's brief was written in this instant case the Vance v. State case, supra, was unknown to the writer of this brief, yet the records in the two cases and the briefs point out great similarity in certain conditions between the two cases. Certainly in the Vane case the appellant, by his utterance of the epithet which he uttered, precipitated a quarrel with the deceased and the facts make the appellant in that case just as much, or more, of an aggressor than do the facts, as demonstrated by the record and the brief make the appellant in the instant case.

In the Vance case, 183 So. 280, the court under the facts in that case condemned Instruction No. 1 for the State which was in the following words:

"The court instructs the jury for the State that if you believe...