Molphus v. State

87 So. 113, 124 Miss. 584

• Court: Mississippi Supreme Court
• Decided: October 15, 1920
• Docket: No. 21375
• Status: Published

Opinion

Ethridge, J.,

delivered the opinion of the court.

Pet Molphus was indicted, tried, and convicted for the murder of Bobert Owen, and sentenced to the penitentiary for his natural life, and appeals from such judgment and .assigns for error the following: Eirst, the court erred in refusing each and every one of appellant’s instructions found in the record marked refused; second, the court erred in granting each and every instruction received by the state, and especially instruction No. 6 by the state; third, the court erred- in excluding the evidence offered by the appellant on objection by the state, and especially when the appellant offered to show overtures for peace made by him to the deceased. The killing took place on the gallery of Land’s store about ten miles east of Philadelphia, Miss., in Neshoba county, and was witnessed by two eyewitnesses from the beginning, and by another from the first shot.

In. front of this store was situated mail boxes on a rural route at which both Molphus and Owen received their mail and mailed letters and packages.' According to the state’s witnesses the deceased was' sitting at the corner of the store at the intersection of the south and east galleries. He had a letter in his right hafid and was looking downward., and Molphus approached from the rear end of the east gallery to within a few feet of where Owen was sitting saw his position, and began to fire without the utterance of a word and at a time when the deceased was making no demonstration toward him- on looking at him. Six shots were fired, all taking effect, one striking the head below the left ear and ranging downward into the neck, one entering the left shoulder and ranging doAvn, one about midway of the upper arm, and one about the elbow, and one in the left side. Owen never made any demonstration, according to the state’s witnesses, and never uttered a word except to cry out, “Oh! Oh!” or some similar utterance. When Molphus finished shooting he walked off of the gallery, crossed the road, and called back to Jones, a state’s witness, to phone for the sheriff, that he would give up, and returned to his home through the pasture of Mrs. Ford. Jones had some one to phone the sheriff and then went to a neighbor’s, leaving Owen undisturbed as he fell. When the neighbors came in they straightened Mr. Ow-en out, searched his person, and found a pocketknife in his pocket, a watch, twenty-five cents, and a box addressed to the state laboratory at Jackson, Miss. The letter was still in his right hand.

Molphus testified in his own behalf, and testified to previous difficulties with the deceased and that threats had been communicated to him made by the deceased, and states that when he walked up on the gallery and got near Owen, Owen started to rise and threw his right hand toward his hip pocket, and that he (Molphus) thereupon fired upon Mr. Owen as long as the pistol would shoot to save his own life. He introduced several witnesses to prove the threats made by Mr. Owen, against him and communicated to him, ranging as far back as January, 1918, the shooting taking place in June, 1918, said threats continuing up to about two weeks before the killing. Some of these witnesses testifying to threats made by Mr. Owen against Molphus were contradicted by members of Ford’s family as to their presence at the place, Ford’s home, where the alleged threats were made. They also testified to some other threats not made at Ford’s residence and at which only the witnesses and Owen were present. Molphus also offered to prove that he had made overtures to Mr. Owen for a settlement of their differences on a peaceable basis, having sent a committee of neighbors to induce Mr. Owen, if possible, to drop their ill feeling and to live as neighbors, and, if he would not agree to that, to make a proposition of having a committee of neighbors to value the property of Molphus and of Owen, and that he (Molphus) would either sell or buy on such valuations, giving Mr. Owen the option first to buy or sell at such valuations.

The evidence offered in the absence of the jury shows one or more committees approached Mr. Owen with such propositions, which he rejected. Evidence of threats made by Mr. Owen at such times against Molphus was admitted by the court, but the court excluded the overtures of peace made by the committee, to which exception was taken.

Taking up the first assignment of error: The appellant first says that the court erred in refusing instruction No. 3 asked for by the appellant and refused by the court, which reads as follows:

“The court instructs the jury for the defendant that the jury should accept as an established fact that Mr. Owen threatened the life of the defendant, and that the defendant was advised of threats made by Mr. Owen.”

We do not think that the court was required to instruct the jury that they must accept the evidence of the witness as to the threats as being true. These witnesses, with one exception, were contradicted as to some of the threats, and the defendant invoked the principle of law in his instruction that, if the jury believed from the evideuce that any witness had willfully and corruptly sworn falsely as to any material matter, the jury were authorized to disregard the testimony of such witness or witnesses. The credibility of the evidence is for the jury, and this principle of law invoked by the defendant operates as to his own witnesses as well as to the witnesses of the state. There is a direct conflict between these witnesses and other witnesses for the state as to other matters in issue, and the jury may have believed that such witnesses were testifying falsely, and, if they did so believe from the evidence and from the manner and appearance of the witnesses, they were authorized to disbelieve their statements.

It is next complained that the court erred in refusing instruction No. 2 for the appellant, which reads as follows :

“The court instructs the jury for the defendant that the defendant had a right to carry a pistol to protect himself from loss of life or great bodily harm at the hands of Mr. Owen, providing the jury believe that the defendant reasonably believed that there was danger of such threats" being executed.”

The court gave the defendant the following instruction:

“The court charges the jury at the request of the defendant that under the law a man is justifiable in carrying a concealed weapon if his life has been threatened and he has a good and sufficient reason to apprehend a serious attack from an enemy, and if you believe from the testimony in this case that Molphus’ life had been threatened and he had reason to apprehend a serious attack, then he was justified in carrying a pistol.”

This instruction received by the defendant was certainly all he could ask. The defendant was not on trial for carrying a concealed weapon, and the court was not required to instruct as to his right to carry a weapon. The court was here dealing with the use of the weapon and the lawfulness of the use, and not with the lawfulness of its being carried. So we think there was not error in refusing the instruction No. 2 above set out which was refused by the court.

It' is next complained that the court erred in refusing the appellant the following instruction:

“The court instructs the jury for the defendant that when a man threatens the life of another he puts himself in a position where he Avhose life has been threatened has the right to kill him upon the first appearance of danger, providing the party threatened reasonably believe at the time of the killing that there Avas imminent danger of his losing his life at the hands of him who has threatened him, and in deciding AArhether the party threatened so reasonably believed the jury should consider the fact that his life had been threatened.”

It is not true that a party has a right to kill another on the first appearance of danger. The rule is that to defend on alleged threats and apprehension on threats there must be a demonstration by the party making the threat which would induce a reasonable man to believe that there was danger of such threat being immediately executed.

It is urged here that the appellant need not wait until his adversary was on equal terms before he commenced firing; and while it is true that he need not wait until his adversary is on equal terms before firing, yet it is true that his adversary must make some demonstration or overt act upon which a reasonable belief of danger might be predicated. The instruction does not sufficiently state this hypothesis, and the instructions for the defendant given by the court fully informed the jury of his right to act upon the apparent danger, and also their right to consider the threat made, if they believed that such threat was made.

On the second assignment of error it is insisted, first, that the court erred in granting instruction No. 6 given to the state, which reads as follows:

“The court charges the. jury for the state that mere threats alone will not justify one person in taking the life of another; even though the jury believe from the evidence that deceased threatened the life of the defendant, Pet Molphus, and that the threats were communicated to him, this alone would not justify the defendant in taking the life of deceased, unless you further believe from the evidence that at the time defendant shot the deceased he, the deceased, was making some overt act toward the. defendant.”

It is contended here that the words “overt act” as known in the criminal law is some demonstration or open act done in pursuance of a criminal design, and it is insisted that the act in itself may have been innocent and yet the defendant may have rightly apprehended danger because of the threat.

In Hood v. State, 27 So. 643, the appellant was refused an instruction which was in the following language:

“That the design, real or apparent, to kill the defendant or to do him some great personal injury, and the danger, real or apparent, of the execution of such design by the deceased to cause the killing, must be manifested by some overt act, conduct, or behavior of the deceased at the time of the killing, indicating to the defendant, Hood, situated as he was, such design and danger; but what show such design, real or apparent, or such danger, real or apparent, are not matters of law for the court to decide, but are matters of fact, determined by the jury according to all the evidence in the case. No exact definition of an ‘overt act’’ can be given. It may be a motion, a gesture, conduct, or demonstration, or anything else which evidences reasonably a present design to take the life of the defendant or to do him great bodily harm. Trifles light as air when viewed alone may become fraught with deadly meaning when viewed in connection with all the preceding facts disclosed, and with all the evidence in the case.”

And the court in passing upon the case held that this instruction Avas proper. It will be seen from this instruction that the language:

“No exact definition of an ‘overt act’ can be given. It may' be a motion, a gesture, conduct, or demonstration, or anything else which evidences reasonably a present design to take the life of the defendant or to do him great bodily harm. Trifles light as air when viewed alone may become fraught with deadly meaning when viewed in connection with all the preceding facts disclosed, and with-all the evidence in the case” — indicates that the words “overt act” as used in this instruction do not indicate that the overt act must be for a criminal purpose.

In the case of State v. Williams, 46 La. Ann. 709, 15 So. 82, it is said:

“The mere fact of going to the place where the accused lived and seeking an explanation from him does not in itself constitute such an act of hostility as would justify the talcing of human life. In order to constitute the overt act or hostile demonstration that would justify the taking of human life, there must be some demonstration made by deceased against accused as to impress upon the latter that he was in imminent danger of his life, or some great bodily harm.

“In some instances the extent of the overt act which would induce the accused to! act in his self-defense is measured by the character of the deceased for a violent, quarrelsome, dangerous, and turbulent disposition,! notorious in the community or known to the accused.”

In Wlords and Phrases (O. S.) vol. 6, p. 5128, we find the following definition of the words “overt act”:

“The overt act of the deceased justifying another person in the exercise of the right of self-defense is á hostile demonstration of a character to create a belief in such person that he was about to lose his life or suffer great bodily harm at the hands of the deceased; and this belief could have been entertained honestly by accused, though deceased did not strike, or come within striking distance of him. State v. Frontenot, 23 So. 634, 635, 50 La. 537, 69 Am. St. Rep. 455.”

TYe do not think the jury were misled hy this instruction as to the appellant’s right to act upon the demonstration considered in the light of the evidence as to threats. The instructions in the case given on behalf of the defendant, we think, informed the jury fully as to the extent of his right under the law, and there 'is no reversible error in the instruction.

The third assignment of error is the one principally relied upon by the appellant for a reversal. It is earnestly insisted that the overtures of peace made by the appellant to Mr. Owen should have been admitted to the jury. There is some authority to the effect that this may be considered in determining the question of malice as bearing on the state of mind of the defendant at the time, but the rule is that such overtures or efforts of peace are not admissible unless it is so intimately connected with the killing as to indicate the state of the defendant’s mind at the time of the homicide. It must either be a part of the res gestae or so closely related to the time of the killing as to make it practically a part of the transaction. The rule stated in Enc. of Evidence, vol 6, pp. 763, 764, is as follows:

“The defendant’s previous expressions of his fear of the deceased and his desire to avoid a difficulty with him are not admissible in his behalf, unless part of the res-gestae. Such expressions have, however, been held admissible as declarations. of mental condition when made such short time previous as to indicate the state of the defendant’s mind at the time of the homicide.

“Generally the defendant’s previous efforts to induce a third person to effect a reconciliation between himself and the deceased, or an amicable settlement of their difficulties, are not admissible in his behalf, but this is largely dependent upon the facts of the particular case.”

In' the case before us the efforts .of peace were made several months before the killing occurred, and, in our opinion, are too remote to have any bearing on the mental attitude of the defendant at the time of the killing. Indeed it may have been that when the overtures were rejected that the defendant formed the design to kill the deceased. The evidence does not show any effort at reconciliation at or near the time of the killing so as to bring the evidence within the rule contended for by the appellant. It seems from the authorities that a majority of the courts that have passed upon the question hold that it is not admissible at all, being in the nature of a self-serving act or declaration. But the Texas court has declared the doctrine that such evidence is admissible if near enough the time of the difficulty to made it appear a part of the difficulty. We do not hold that cases may not exist where such evidence would be' received, but we hold in the present case that the overtures towards peace were too remote from the time of the killing to make it admissible..

It follows from what we have.said that the judgment of the lower court will be affirmed.

Affirmed.