Huffstickler v. State

93 So. 1, 129 Miss. 769

• Court: Mississippi Supreme Court
• Decided: September 15, 1922
• Docket: No. 22601
• Status: Published

Opinion

Sykes, P. J.,

delivered the opinion of the court.

The appellant was convicted of carrying a concealed weapon, namely, a pistol, from which conviction this appeal was prosecuted.

The testimony showed that on a public street in the city of New Albany he pulled a pistol from his pocket and shot a man, wounding him. He admitted carrying concealed the pistol, but defended upon the ground:

“That he Avas threatened, and had good and sufficient reason to apprehend a serious attack from an enemy, and that he did so apprehend.” Section 1105, Code of 1906 (section 831, Hemingway’s Code).

The defendant testified about a previous difficulty Avith the principal Avitnes's for the state, and to the fact that different people had told him that this witness stated he intended to kill appellant. Among others, he stated a person by the name of Archer told him. When asked Avhat Archer told him, he stated in effect that Archer said that Lcavís told him of hearing this Avitness threaten his life: This ansAver Avas objected to as hearsay, the objection sustained, and the defendant excepted. The defendant also testified that a -witness by tfie name of Goodman communicated a similar threat to him. Goodman was placed upon the stand, and testified that he never heard this principal state witness make a threat, but was told by others of the threat. His testimony was then objected to as hearsay, and the objection sustained and the testimony excluded. The exclusion of this testimony is one of the errors assigned for a reversal of the cause.

The, defense in this cause was in effect that threats made against his life by this state witness had been communicated to the defendant, and that he in good faith believed this witness intended to kill him, or, in other words, that his life was in danger, or he was in danger of great bodily harm, at the hands of this witness, and for this reason in good faith carried the pistol. In the case of Hurst v. State, 101 Miss. 402, 58 So. 206, this court, in passing upon this exact question, held that:

“It is not necessary for the party to prove, either that he himself heard, or that the party who informed him heard, the other party make the threats. The only thing necessary is that the party indicted was informed, and so believed, that he had been threatened, and That he had good and sufficient reason to apprehend a serious attack from the party making the threats, and that he did so apprehend.' . . . The proof of the threat is made out by showing that the party on trial, and who is charged with carrying a deadly weapon, -was informed, and sincerely and honestly believed, that the threat had been made. Mere idle rumors are not sufficient; but, when the information is brought home to the party charged that he has been threatened, this as to him is proof of the threats.”

The exclusion of this testimony was reversible error.

It is further insisted by the appellant that one of the instructions for the state, to the effect that the burden of proving the defense under this statute was upon the defendant, was erroneous. This was not error, because the statute expressly makes this an affirmative defense, and states that:

“The burden of proving either of these defenses [enumerated under the statute] shall be on the accused/’ (Italics mine.)

Reversed and remanded.