Spivey v. State , 58 Miss. 858 ( 1881 )

Campbell, J.,

delivered the opinion of the court.

Because the homicide is shown to have occurred in the Second Court District of Panola County, and therefore the Circuit Court of the First District did not have cognizance of the case, the judgment will be reversed ; but, with a view to another trial, it is proper to pass on other questions presented by the record.

The fact that the record here does not contain a copy of the indictment is not cause for reversal, as decided on the motion in this case on a former day.

The testimony that John Spivey, in the presence of the accused, called to his brother, saying, “ Bun here ; pa has killed Capt. Bailey,” was properly admitted. The note sent by Bailey to the accused in the forenoon of the day of the killing had such relation to the subsequent conduct of Bailey with, respect to the accused as to make it proper evidence. It serves to show the state of Bailey’s feelings, and to explain the inquiry which he addressed to the accused, near one o’clock that day, about not meeting him.

The accused was entitled to exhibit Bailey before the jury just as he confronted him when he shot him. His defence was that he killed Bailey because of a reasonable apprehension, excited by the hostile demonstration of Bailey, and honestly entertained by the accused, that he was at the time in imminent peril of some great bodily harm then about to be done him by Bailey, to avert which he shot him. His evidence tends to support this view of the killing. The jury was to determine as to the reasonableness of the apprehension of the accused, situated and circumstanced as he was at the time, knowing what' he knew of Bailey, and his feelings and disposition towards him, and seeing what he saw at the time in the action of Bailey, and interpreting it by the aid of his knowledge of his disposition towards him. The accused sent Bailey a note in the morning of the day of the killing, informing him that if his mules were found again in his (accused) wife’s field, the accused would shoot them. Bailey replied that he considered that a “banter,” and invited the accused to meet him after dinner, at a place named, with his “ good shot-gun ; we will try them.” About one o’clock Bailey was at the house of the accused, and asked him why he had not met- him as proposed. Angry words followed, and Bailey sent to his house for his gun, which was soon brought; but nothing further occurred, and Bailey and his companions went to the cotton-field to work, and about sunset returned to the front of the house of the accused, when Bailey dismounted from the mule he was riding, and started into the house of the accused, and was shot. The theory of the defence was that Bailey was so infuriated by the note sent him by the accused, threatening to shoot his mules, that he thought of bloodshed and vengeance on accused, and proposed a meeting to try their guns on each other, and at one o’clock sought a quarrel; and that when, at sunset, Bailey, attended by his friends, stationed conveniently to render needed aid, undertook to go into the house of the accused, it was to finish the quarrel begun in the forenoon and renewed at one o’clock, and intended by Bailey to be concluded by great bodily harm to the accused. The note of Bailey to the accused, and that of the accused to Bailey, were pertinent to the inquiry involved in the issue. The accused was entitled to show how Bailey was affected by his.note to him, as indicated by his reply to it and his subsequent conduct. The note may be regarded as the beginning of the difficulty, which ended in the death of one of the parties to the correspondence, and it is valuable as illustrating the commencement of the hostilities, which terminated the same day in the death of Bailey. The notes, the quarrel at one o’clock, and the occurrences at sunset, may justly be regarded as parts of a whole, successive acts of the tragedy, and proper to present the actors before the jury as thej? were with respect to each other at the time of the killing. It is because there is evidence to be considered by the jury of hostile conduct by Bailey, apparently threatening great personal injury to the accused at the time of the killing, that it is proper to admit the written correspondence which began the trouble between the parties on that day.

The court did not err in rejecting evidence that Bailey was an “ overbearing, turbulent, and impetuous man.” That was irrelevant. If he was overbearing in disposition, quarrelsome, and impetuous, it does not. follow that he was given to violence, and dangerous. The principle on which it is admissible, in case of apparent danger to the accused from some overt act of the deceased indicating a present purpose to do him some great bodily harm, to show the character of the deceased is, that as the jury are to judge the conduct of the accused, circumstanced as he was at the time of the act for which he is on trial, they should be informed as to the sort of person alleged to have done the overt act, apparently threatening, which is claimed to have had such import as to have justified the accused in acting upon it as he did. There is great difference among men. Some are revengeful, vindictive, brutal, violent, and dangerous. Some regard not the laws of God or men. They do not value human life, and would not shrink from taking it on slight provocation. They are quick to take offence, and ready to inflict great bodily harm, regardless of consequences. They habitually carry deadly weapons concealed on their persons, and are ready to use them on very slight grounds. One who is the object of a hostile demonstration by such a person, apparently indicative of a present purpose to do him some great bodily harm, may justly apprehend danger from slighter circumstances than in case of a different sort of man would be sufficient to cause such apprehension. The value of a thing said or done depends on who says or does' it, in a large degree. A disposition to violence, ferocity of temper, or recklessness of human life, with animosity to the accused on the part of the assailant, are well calculated to quicken the apprehension of the assailed, and make pregnant with meaning an act which might signify little if done by another. Hence it is admissible to show the peculiar character of the deceased as a quarrelsome, vindictive, and dangerous person, when he was the assailant and the defence is that the homicide was justifiable because of the reasonable apprehension of great bodily harm by the accused from the deceased, as indicated by some overt act on his part apparently threatening immediate danger of such harm being inflicted. If the accused offered evidence to show the character of Bailey to have been such as to justify a reasonable apprehension from what he did immediately preceding his being killed, it was admissible; but, as we have stated, it was not material that; Bailey was an “overbearing, turbulent, and impetuous man,” for that did not heighten the danger the accused was in, nor serve to excite his apprehension from the acts of Bailey, who, though “overbearing, turbulent, and impetuous,” may not have been violent, dangerous, or regardless of humdn iife. He may not have been ferocious, revengeful, vindictive, or given to violence. The inquiry should be limited to such features of character as have a tendency to throw light on- the alleged apprehension of the accused by reason of that character, or as may illustrate the conduct of the deceased when shown to be an assailant. One may not be killed because he is disposed to violence towards men, but if such an one is an assailant, it may mean more to the person attacked than if another was the assailant. It must first appear that there was an attack, and then the accused, who was the object of it, may show whatever will throw light on the question whether he had just ground to believe that the attack was felonious and dangerous.

The fifth instruction for the State does not fairly present the principle intended to be announced. It is calculated to mislead, by conveying a meaning not intended, and not correct. It is true that in acting on one’s apprehensions of danger, and slaying his assailant, he acts at his peril, — that is, he takes the risk of what a jury will determine as to the propriety of his action, — but this instruction fails to tell the jury what peril is meant, and it is highly probable that it conveyed an idea which unduly abridged the right of self-defence from apparent danger.

The thirteenth instruction for the State is clearly wrong, and is directly in the face of a decision of this court on the precise question. Finley v. Hunt, 56 Miss. 221.

■ We find no error in the refusal by the court of the eighth, eleYenth,- twelfth, and thirteenth instructions asked by the accused. The evidence suggests no doubt as to who did the shooting which killed Bailey, and it was therefore proper to refuse the eighth instruction. The others were unnecessary, and objectionable in other respects.

Judgment reversed and new trial awarded.