Walker v. State , 146 Miss. 510 ( 1927 )

^* Corpus Juris-Cyc References: Homicide, 30CJ, p. 20, n. 3, 8; p. 355, n. 70. Appellant was indicted and convicted in the circuit court of Pike county of the crime of assault and battery with intent to kill and murder, and sentenced to pay a fine of five hundred dollars and ninety days' imprisonment. From that judgment, she prosecutes this appeal.

Appellant and Hillary Garner, both negro women, lived in the town of Magnolia. At the time of the alleged crime, appellant was conducting a restaurant and cold drink stand in the negro quarters of the town. On July 4, 1926, Hillary Garner, together with a male friend of hers, Clifton Griffin, went into appellant's restaurant for the purpose of buying cold drinks. Appellant and Hillary Garner got into an angry altercation, resulting in appellant ordering Hillary Garner to leave the restaurant, which the latter proceeded to do. After Hillary Garner got outside the door of the restaurant, the appellant came out of the restaurant with a pistol in her hand and shot three times at Hillary Garner, hitting her twice in the legs. Appellant testified that she shot at Hillary Garner's legs in self-defense and for the further purpose of getting rid of her by frightening her away, and that appellant did not intend to kill her. The physical facts seem to bear out, to the same extent, appellant's testimony that she did not shoot with intent to kill. Appellant testified, further, that when she shot Hillary Garner, the latter, with a knife in her hand, was advancing on appellant in a threatening manner. The state's testimony tended to show that appellant did not shoot in self-defense; that Hillary Garner, with a knife in her hand, was not advancing on appellant; but that, at the time appellant shot, she was in no danger of death or great bodily harm at the hands of Hillary Garner. The evidence was, therefore, such as would have justified the jury in a verdict of either guilty or not guilty. Among the instructions given for the state was the following:

"The court instructs the jury for the state that malice may be inferred by the use of a deadly weapon."

The giving of this instruction for the state is assigned and argued on behalf of appellant, as error, on two grounds: First, that the instruction should have contained the word "deliberate" between the word "the" and the phrase, "use of a deadly weapon;" and, second, that even if so amended, the instruction was inapplicable to the facts of the case and was misleading to the jury. We will consider these questions in the order stated.

We think appellant's criticism of the instruction because the word "deliberate" was left out of it is well founded. Under the law, malice may not be inferred from the mere use of a deadly weapon. In order for the use of a deadly weapon to carry with it the inference of malice, its use must be deliberate. It is true that only a short space of time is necessary for deliberation; nevertheless, deliberation must exist. Malice is an essential of the crime of assault and battery with intent to kill and murder, and cannot exist without deliberation. For illustration, if A commits an assault and battery upon B, with a deadly weapon, under facts and circumstances which would make A only guilty of manslaughter, if death results, at most, A is only guilty of an assault and battery, where death does not result.

We are also of opinion that the second ground of objection to the instruction is well taken. It is true that the word "deliberate," inserted in the instruction between the word "the" and the phrase, "use of a deadly weapon," would cause the instruction to embody a correct principle of law, nevertheless, it would be a principle having no application to the facts of this particular case. This is a case where all the facts and circumstances attending the shooting were developed by the evidence. There was, therefore, no room for an instruction informing the jury that malice might be inferred from a deliberate use of a deadly weapon. In Lamar v. State,63 Miss. 265, in discussing a similar instruction, the court said:

"It is true that the law presumes malice from the deliberate use of a deadly weapon; it is not true that this presumption should control in determining the verdict in cases in which all presumptions are swallowed up by a full disclosure of all the facts surrounding and attending the killing. Instructions of this character are not erroneous, for the presumption does exist as stated, but it exists as a part of the whole case and not as a dominating factor controlling all the facts disclosed, as it is the tendency of such instructions to suggest."

It will be noted that the court said in that case that the law presumes malice from the deliberate use of a deadly weapon, but that it was not true that this presumption should control the jury in a case "in which all presumptions are swallowed up by a full disclosure of all the facts surrounding and attending the killing." In the present case, there was a full disclosure of all facts and circumstances surrounding the shooting. The jury should have been left to determine from those facts and circumstances, alone, the question of malice. The state was not entitled to have its case strengthened by an instruction that the law presumed malice by the deliberate use of a deadly weapon. The appellant was contending that, at most, she was only guilty of an assault and battery; that the shooting was the result of an angry altercation between herself and the woman shot; and that the shooting was therefore done in the heat of passion, without malice. On the other hand, the state was contending that the evidence showed that appellant did the shooting, not in the heat of passion and without malice, but with the deliberate design to effect the death of the person shot at. In considering their verdict, the jury would have been justified in reasoning about it thus:

"It is true that we are not convinced, by the evidence alone, beyond any reasonable doubt, that appellant did the shooting with malice — the deliberate design to effect the death of the woman shot; still, the court tells us that we may infer malice from the deliberate use of a deadly weapon. Therefore, taking that presumption in connection with the evidence, we conclude that the appellant is guilty."

Reversed and remanded.