Waldrop v. State

54 So. 66, 98 Miss. 567

• Court: Mississippi Supreme Court
• Decided: October 15, 1910
• Status: Published

Opinions

Mates, C. J-,

delivered the opinion of tbe court.

Eugene Waldrop -was indicted in tbe circuit court of Copiah county for tbe killing of one Lee Crawford some time during tbe year 1910. Tbe indictment was only for manslaughter, and tbe trials resulted in tbe conviction of Waldrop, who was given a five-year sentence intbe penitentiary, and appeals.

A lengthy statement of tbe facts is unnecessary, since tbe questions raised chiefly arise out of alleged error-in tbe instructions. It appears tbat Lee Crawford, deceased, gave a dance at bis home one Saturday night, towbicb a large crowd came, including Eugene Waldrop,, tbe appellant, and bis brother, Charley. During the evening Charley Waldrop became involved in some altercation, or dispute, either at Crawford’s gate, or in tbe road near tbe gate, and at tbe time Charley Waldrop was, in tbe dispute it seems tbat Crawford was there, or went there to quiet the disturbance. About the same time, appellant, having heard about the disturbance, left Chawford’s house and went out to where the trouble seemed to'be brewing, and after reaching there remarked that no two were “going to jump on Charley.” At the time appellant made this remark, according to some of the testimony, it seems that he also used an oath, whereupon Lee Crawford, deceased, remonstrated with him, and appellant cursed Crawford for a son of a bitch. When appellant did this, Crawford struck him, and knocked him down, and commenced to beat him. While this was .going on, appellant stabbed Crawford eight or nine times, killing him in a very short while. The testimony for the defense differs little from that of the state. Suffice it to say that the defendant’s witnesses testified that Crawford first cursed Waldrop. However this may be, the jury heard all the testimony and were fully "warranted in finding the verdict they did.

It further appears from the record that deceased was a much larger and stronger man'than appellant; that deceased weighed about one hundred and eighty or one hundred and ninety pounds, and was a man of unusual strength, whereas appellant was weakly and. weighed from one hundred and thirty-five to one hundred and fifty pounds. The reason for this statement will appear when we come to consider the instructions. It is not amiss to state here that the court granted sixteen instructions for the appellant, and an inspection of the instructions conclusively shows that the appellant received the benefit of every possible legal phase of the case. Crawford was slain at his own home, while trying to quell a disturbance occurring at a dance given by him in his home; and he was unarmed so far as this record discloses. He was killed while using his fists in resenting •one of the grossest insults one can offer another. This was the state’s testimony, and this was what the jury Relieved from that testimony. Under the facts of this case, viewed in the light of the very full announcement of the law given in the instructions for appellant, the error which should reverse this case should he a substantial one, causing real and not imaginary prejudice to the rights of appellant.

The first error assigned by counsel for appellant,, .which we shall notice, is the refusal of the court to grant six instructions asked for on the part of appellant. In connection with this assignment of error, all instructions given for appellant must be considered. One of the instructions refused was a peremptory instruction to-' find for defendant, and that this instruction should have been refused is so apparent, we shall not discuss- it at all. The principle which controls us in the consideration of the instructions in this case which were refused by the court is to be found in the case of Mabry v. State, 71 Miss. 716, 14 South. 267, wherein this court has said: “Where the court in any-case has given the first six, eight, or ten instructions asked by a party, and- refused any more, we will not consider errors assigned as to such refused instructions, unless- it shall appear that the jury were not furnished a sufficient guide for their proper determination of the case. The courts have just as much right to limit instructions to a proper number as they have to limit argument within proper bounds, and it should be done, with proper caution to avoid injustice, and they will be sustained in this course by this court by its refusal to consider errors predicated of the refusal of the trial courts to grant an unnecessary and unreasonable number of instructions, whereby jurors are confused often, and judges entrapped into error after being wearied with attention to the many instructions preceding, and much valuable time is wasted by counsel and judges in disposing of the case.”

We will first consider the instructions given for appellant which in our judgment embody the same principles sought to be- announced in the refused instruction's. Thus," instructions Nos. 1, 2, and 16, given for appellant, embrace the same idea that is embodied in instructions Nos. 1, 2, and 3, refused. Instruction No. 1, given for appellant, tells the jury that if they believe from the evidence that the deceased was an able-bodied, strong, and powerful man, weighing one hundred and eighty pounds or more, and that he became involved in a difficulty with the defendant, who was not his equal physically, and if they further believe from the evidence that the deceased knocked the defendant upon the ground, and while upon him the defendant reasonably believed. that his life or limb was in danger, then he had a right to stab and kill deceased, even though the jury may believe from the evidence that at the time defendant was not in either real or actual danger of life or limb at the hands of the deceased, and though the jury may further believe that deceased was absolutely unarmed. Instruction No. 2, given for the appellant, tells the jury that, in determining-whether or not defendant acted in necessary self-defense, they have the right to consider the relative size and strength of the deceased and the defendant, and if they believe from the evidence, or have a reasonable doubt from the evidence or want of evidence, that defendant killed deceased in necessary self-defense, then they .should acquit regardless of every other’ fact. By the sixteenth instruction, given for appellant, the jury are told that, in determining the guilt or innocence of the defendant, it is their sworn duty to take into consideration the relative size, of deceased and defendant, and if they believe from the evidence, or have a reasonable doubt arising out of the evidence, or want of evidence, that deceased was a much larger or stronger man than defendant, and at the time the fatal blow was struck deceased had defendant on the ground and was on top of him, and the defendant then and there reasonably believed he was in danger of losing his life or suffering great bodily harm, it is the duty of the jury to acquit.

Thus, in three instructions given for the appellant the jury are told that, in arriving at their conclusion a.s to whether or not the appellant acted in self-defense, they may take into consideration the difference in size, weight, and strength of the combatants, and they are told that, taking this into consideration, if they believe from the evidence that the appellant had reasonable g’round to fear great bodily harm on account of this difference in size and strength appellant had a right to stab and kill deceased, even though the jury believe from the evidence, as ,a matter of fact, that appellant was not in real or actual danger, and though they may further believe that, at the time appellant killed deceased, deceased was unarmed. These instructions state the law applicable to this feature of the case as broadly as it •ought to be stated, and it is impossible for language to place before the jury the fact that they had a right to take into their consideration the difference in the size and strength of these two combatants in a more striking way than was done.

The refused instructions on this line are instructions Nos. one, two, and three. These refused instructions merely repeat in a little different phraseology the law .given in the instructions above referred to, and should have been refused. Thus, instruction No. one, refused, tells the jury that if they believe from the evidence the deceased was a much larger and stronger man than defendant, so much so that the defendant was wholly and absolutely incapable of coping with him in physical combat, and was liable- to receive serious and great bodily injury,at the hands of deceased while engaged in such combat, then the defendant was justifiable in using a deadly weapon to defend himself from an unjustifiable and deadly attack from deceased, even though deceased was wholly unarmed and defendant was in no danger from deceased, except such as might be inflicted with his hands and feet. The second instruction, refused, tells the jury if the evidence shows deceased was physically ■capable of inflicting great and serious harm with his feet or hands, and defendant had reason to believe and did believe, at the time he stabbed deceased, that he was in danger of such harm at his hands, and thereupon cut •and killed deceased to protect himself from such harm, then it is immaterial whether deceased was armed or not at the time of the killing. The third refused instruction tells the jury if they believe from the evidence, or want of evidence, or have a reasonable doubt from the ■evidence, or want of evidence, that deceased was a larger and stronger man than the defendant, and that deceased weighed one hundred and seventy-five pounds or more, defendant being a smaller and weaker man, and weighing only one hundred and forty pounds or less, and that because of this the defendant was no physical match for deceased, and that the moment the fatal blow was struck by defendant he reasonably believed his life was in danger at the hands of deceased, or that he was about to suffer great bodily harm, the homicide was justifiable, •even though the jury may believe deceased was unarmed.

We are not to be understood as indorsing these refused instructions; but we simply say that, if correct, they merely duplicate the principle already announced, and ought on that account to have been refused. It is readily seen that every principle contended for in the refused instructions was announced in the instructions given for appellant. The instructions are to be considered as a whole. Reed v. Y. & M. V. R. Co., 94 Miss. 639, 47 South. 670; Lewis v. State, 93 Miss. 697, 47 South. 467.

The giving of instructions Nos. eleven and thirteen made the refusal of instructions Nos. four and five proper. The principles sought to be announced by refused instructions four and- five are fully covered by instructions Nos. eleven and thirteen given for appellant. Thus, instruction No. eleven, given for appellant, tells the jury that one has .the same right to hill another,, and is justified by the law in so doing, when it reasonably appears that the attacking party is about to disfigure' such person’s face by breaking his nose, or putting out his eye, or breaking his bones, just as much so as if the attacking person appeared to be about to kill such person. The instruction further tells the jury that a man is as much justified by the law in protecting any part of his body from serious harm as he is in protecting his. life, and that if it appeared to defendant reasonably at the time that deceased was about to break his nose, or gouge out his eyes, then the defendant had a right to' kill him, and the jury must acquit.

Instruction thirteen, given for appellant, tells the jury that if at the moment defendant stabbed deceased it reasonably appeared to him that deceased was about to choke him to death, and defendant so believed, then defendant had a right to kill deceased and the jury should acquit. Instructions four and five, refused, practically embody the same idea, and should have been refused.

It is next insisted that the coart erred in giving instruction No. one for the state, which is as follows, viz.: “The court instructs the jury, for the state, that you are the sole and only judges of the credibility of witnesses in the case, and you may disbelieve any witness in the case, provided you believe from the testimony that such witness has not sworn truthfully. In determining whether you will believe or disbelieve any witness, you may take into consideration the interest, if any, the witness may have in the trial of the case, .together with all the facts and circumstances in the case.” Counsel for appellant contended, that this instruction is fatally erroneous for two reasons, the first of which we shall 'now notice. Counsel, contended that under this instruction the jury are given the right to arbitrarily reject the testimony of any witness. It is argued, further, that this instruction is fatally erroneous, .because it is aimed at the appellant, who is the only interested witness. As a matter of fact, appellant was not the only interested witness in the case. The whole trouble started over an altercation which his brother Charley had gotten into, and Charley Waldrop, among others, was a witness in the case. Counsel for appellant rely on the following authorities, which we shall take up and discuss. It is our judgment that the authorities relied on have no application to the case now before the court. Riley v. State, 75 Miss. 352, 22 South. 890; Ry. Co. v. Tate, 70 Miss. 348, 12 South. 333, and Myrick v. Wells, 52 Miss. 149, are relied on.

In the case of Riley v. State, 75 Miss. 352, 22 South. 890, the instruction condemned was quite different from the instruction in this case. In the Eiley case the court told the jury that “you are the sole judges of the weight of the testimony and the credibility of the witnesses, and you may, if you think proper to do so, disregard the testimony of any witness, if for any reason you may believe such testimony untrue;” and the court said, “the charge was too broad. By it the jury was authorized to disregard the testimony of any witness, if for any reason the jury believed it to be untrue. By the terms of the instruction the jury was authorized to disregard the testimony of any witness, if for any reason, even though undisclosed on the trial and not connected with the evidence laid before them, and not growing out of the manner of the witness on the stand or his interest in the result of the trial, or because of successful contradiction or impeachment, the jury believed the testimony untrue. This is not the law, never has been, and, it is to be hoped, never will be. If the instruction be taken at its face value, and held to mean what its terms declare, then the jury was warranted in discrediting and disregarding the evidence of the defendant, if for any reasons, known to themselves privately and personally, they believed his testimony to be untrue. This would be to try a defendant, not on the sworn evidence, but on the secret knowledge of some facts in possession of the jury which might induce the jury not to believe his testimony. It may be thought that the instruction meant only that for any reasons appearing in the evidence, or springing out of it, or suggested by it. It is possible that is what was meant by the court below; but that is not what it says, and in this particular case it may have misled the jury.”

The instruction here merely tells the jury that they may disbelieve any witness, provided they believe from the testimony, that such witness has not sworn truthfully. Surely this is good law. Surely this instruction announces only the sworn duty imposed by law on the jury. The Riley case, supra, impliedly indorses this very instruction. The case of Railway v. Tate, 70 Miss. 348, 12 South. 338, has no application. In that case the court merely held that where the testimony of the only witness for defendant is uncontradicted, and not improbable or unreasonable, it is error to give an instruction that, if any witness has knowingly testified falsely in a material matter, the jury may disbelieve the witness. No witness in this case was the sole and uncontradicted witness in the case, and the instruction in the above case was a different instruction from the one now under review. The case of Myrick v. Wells, 52 Miss. 149, is without any pertinency to any question involved in this case, so far as we can discover, and we therefore see no purpose to be accomplished by a discussion of it.

It is next insisted that the first instruction given for the state is also totally erroneous, because a misapplication of the falsus in uno, falsus in' omnibus doctrine; that the instruction fails to put in the qualifying words that such witness “willfully,” or “knowingly,” or “corruptly” swore falsely; and the cases of Bell v. State, 90 Miss. 104, 43 South. 84; Railway Co. v. McCoy, 85 Miss. 391, 37 South. 706; Railroad Co. v. Hedrick, 62 Miss. 28; White v. State, 52 Miss. 216; Finley v. Hunt, 56 Miss. 221, and Gaines v. State, 48 South. 182, are relied upon to sustain this contention. None of these authorities have any application to this instruction. The instruction does not attempt to announce the falsus in uno doctrine. It is a totally different instruction. In all of the above cases the instructions told the jury that, if they believed from the evidence that any witness had sworn falsely as to any material fact in the case, then the jury had a right on this account to disregard the whole of such witness’ testimony. The court has consistently held that where this rule was invoked the instruction must tell the jury that, in order to disregard the whole of the witness’ testimony for the false swearing as to any material fact, the jury must believe that it was willfully, or knowingly, or corruptly done. But the first instruction given for the state is not that kind of an instruction. It tells the jury that they are the sole judges of the credibility of the witnesses, and that they might disbelieve any witness, provided they believe from the testimony that such witness has not sworn truthfully. This is certainly the duty of the jury. While this instruction is not reversible error, yet, as said by Mr. Wig-more, in his masterly work on Evidence: ‘ ‘ The propriety, from a judicial standpoint, of giving such an instruction, is questionable.”

The only other assignment of error, which we care to discuss is that which takes exception to the action of the court in granting the fourth instruction for the state. That instruction is as follows, viz.: ‘ ‘ The court instructs the jury, for the state, that the great bodily harm sufficient to justify killing in this case does not mean mere bruises inflicted by hands and fists.” Counsel for appellant urge that the giving of this instruction is fatal error and must cause a reversal, citing the case of Hill v. State, 94 Miss. 391, 49 South. 145, as authority. This instruction was not denounced by the Hill case, supra, and as an abstract proposition of law is undeniable. The state rested its prosecution on the faith of this being the law, and, if it is not, then let the man whose avoirdupois happens to be a little greater than that of his proposed antagonist beware of resenting any kind of indignity or insult, lest he be shot or stabbed to death by his weaker antagonist, who may go free under the law because of disparity in size, though the weaker one provoke the difficulty, and it is only the purpose of the stronger one to use his hands and fists in a moderate degree. No such law has yet been declared in this state. This instruction was given in the Hill case, but was not disapproved by this court, nor was the case reversed on that account. After giving the above instruction, the court refused instructions for defendant embodying the principles declared by instructions one, two, and sixteen in this case, and it was on that account that the Hill case was reversed. The Hill case was again before the court in 52 South. 630, but in neither instance did this court disapprove the instruction now under review. See, also, George v. State, 145 Ala. 41, 40 South. 961, 117 Am. St. Rep. 17.

The other questions raised by appellant we deem' unnecessary to discuss, and the case is affirmed.

Affirmed.