Higgins v. State

83 So. 245, 120 Miss. 823

Opinion

Ethbidge, J.,

delivered the opinion of the court.

Hines Higgins was indicted for murder of one Yirgil Hales, and was convicted of manslaughter, and from said conviction appeals.

Three errors have been assigned by the appellant as reasons for reversal: First. In permitting counsel for the state to interrogate the appellants wife on cross-examination as to whether she testified in the preliminary trial and why she did not testify at the preliminary trial as she did on the trial on the merits. “Second. That the. court erred in its refusal to grant instruction No. 7, reading as follows:

“The court instructs the jury for the defendant that in passing upon the guilt or innocence of the defendant, the jury should not try him by the light of after-developed events, nor hold him to the same cool and correct judgment which you are able to form sitting in. the jury -box ás you are, but you should put yourselves in his place and 'judge of his acts by the facts' and circumstances by which he was surrounded at the time of the difficulty.’ ’

Third. That the court erred in giving the instruction for the state to the effect that the jury might find the defendant guilty of manslaughter.

It appears that the defendant and the deceased had married sisters, and that some little time before the difficulty which resulted in the killing some one had entered, or attempted to enter a room of a lady in the community, and the deceased charged- that the defendant was the one who did this. On the morning in question prior to the killing, a short while, the foreman over the appellant and the deceased came to .where they were working, and inquired whether they were going into camp to draw their pay, it being a pay day. Hales remarked that he was not. Higgins remarked that he was going in, and the deceased jokingly said.

“If you are going I will go in ahead of you and tell all the ladies to lock the doors and bar the windows; that ‘Old Red’ is coming- to town.”

Appellant asked deceased not to joke ■ him on that subject any further, and, according to the state’s witness Hales, said, “All right; if you won’t joke me, I won’t joke you;” and that Higgins said, “Let’s joke one another, but not about that;” and Hales said, “Every damn word I have said is true, and if you don’t like it, you don’t have to take it; somebody has got to do away with you, and it may as well be me as any one. ’ ’ According to the state’s witnesses there was nothing further said for some ten minutes, when the appellant struck the deceased on the side of the head with the spade, remarking, “Now, damn you, talk,” and left the place where they were working, going a few steps in a walk and then running.

The deceased was taken to the camp by the foreman in an auto, and the foreman said as he was going into the camp that he saw the' appellant, and that he had changed his clothes and was going away from home, or in a direction away from home. The state’s witness said at the time Higgins struck the fatal blow that Hales was not doing anything to him, hut was shoveling dirt, and the witness testified that the shovel nsed by the deceased, in his work was lying inside the pit, with loose dirt in the shovel.

According to the appellant’s story, when Hales said that what he said was true, and appellant need not take it if he did not like it, that somebody would have to put him out of the way, etc., the deceased raised his shovel to strike the appellant, and that the appellant struck in self-defense. It was also in evidence that Hales had previously joked the appellant about the matter in question, and had been advised not to further joke about the matter by mutual friends. It was also in evidence that at the time just preceding the difficulty, in the conversation above referred to, the deceased" said:

“I took my gun to kill a man, but he had his child in his arms and another one around his knees, and I just did not have the heart to do it. ”

The wife of the appellant testified in his behalf, and testified that a few days before the difficulty the deceased came to her house and asked her if she had heard the report about the appellant trying to enter a lady’s room, and she replied she knew nothing about it, and, he proceeded to tell her about it and made some improper advances towards her, and that she told him she was going to tell her husband, and he said, “If you do, it will be the last time you ever will. ’ ’ or words to that effect, and she did tell her husband about his conduct; that on the night before the killing she stepped out to get a drink of water at her home, and saw some one standing by the window, with a gun in his hand; that it was a starlight night, but she recognized the person as the deceased; that her husband was inside the house with the baby in his arms and another child playing around hini; that she told her husband that she saw some.one at the window; and that they got a light and went,to see who it was, and could'find no one.

The assignment of error that it was reversible error to permit the state to ask the wife if she testified at the preliminary trial, and to make argument commenting on such faiure, cannot be considered because it does not appear in the record that such things took place.

On the facts in evidence we think it was proper to submit .the hypothesis of manslaughter to the jury and there was no error in the instructions on that subject. This is not a case of assassination where the only question to determine is whether the defendant is the guilty person, but under the circumstances as detailed by the witnesses the jury were authorized to find a verdict of manslaughter.'

As to the refusal of instruction No. 7, above set out, asked by the defendant, we think there is no reversible error, because the law upon the subject was fully and fairly given, taking the instructions as a whole. In cases depending for defense on the appearance of danger, where none actually exists in fact, but where the defendant must judge by appearances, the instruction would be proper, and it might be reversible error to refuse to give it, but we do not think it reversible in the present case.

The judgment is accordingly affirmed.

Affirmed.