Opinion
No. 31188.
May 28, 1934.
1. DEATH.
Instructions that if either of two deceased persons was engaged in murderous attack upon officers, or if officers were in danger from either person, or if there were any overt murderous act towards officers by either of persons, officers were justified in killing either or both, held error under evidence.
2. TRIAL.
In action for wrongful killing by deputy sheriffs, instruction that if one of deceased persons commanded brother to kill officer this was equivalent to overt, continuous, physical act of concerted attack by both, held error as singling out evidence.
3. DEATH.
Necessity, or reasonable belief of necessity, is test of justification of killing in attempted arrest, and mere words do not create any such necessity as to the person using the words.
4. TRIAL.
In action for wrongful killing by deputy sheriffs, instruction directing finding for defendants, unless plaintiffs, by preponderance of evidence, established case in manner and form as charged in declaration, held error, especially where declaration contained averments which were not proved, or attempted to be proved, but which jury might have thought material.
APPEAL from Circuit Court of Marshall County.
Lester G. Fant, Sr. and Jr., of Holly Springs, for appellant.
The plaintiffs were entitled to a peremptory instruction.
The Board of Mississippi Levee Commissioners v. Montgomery, 145 Miss. 578, 110 So. 845; Carrere v. Johnson, 115 So. 196.
The danger must be present, urgent and immediate. It cannot be a past danger, or a danger which may be thought to arise at some future time.
McGehee v. State, 138 Miss. 822, 104 So. 150; Acers v. U.S., 164 U.S. 388, 41 L.Ed. 481; R.C.L., Perm. Supp. 3419; Ransom v. State, 115 So. 208.
The present, urgent danger must be danger of death or great bodily harm. The facts in this case show conclusively that no such danger existed.
Hall v. State, 1 So. 351; Hill v. State, 94 Miss. 391, 49 So. 145; McGehee v. State, 138 Miss. 822; Evans v. State, 44 Miss. 762; Kendrick v. State, 44 Miss. 436; 13 R.C.L. 816.
The right of self-defense may be exercised only against the person threatening death or bodily injury; it does not extend to the killing of an innocent third person.
30 C.J. 75, pars. 253 and 254; State of Mississippi to the Use of Johnston et al. v. Cunningham, 107 Miss. 140, 65 So. 115, 51 L.R.A. (N.S.) 1179; Brown v. Weaver, 76 Miss. 7, 23 So. 388; Kelly v. State, 156 Miss. 535, 126 So. 194.
The verdict was against the overwhelming weight of the evidence.
M. O.R.R. Co. v. Bennett, 127 Miss. 413, 90 So. 113; Columbus G. Ry. v. Buford, 116 So. 817.
The court charged the jury for the defendants that if either Lloyd Gurley or Glenn Gurley made a murderous assault upon either of the officers then the killing of Loyd Gurley was justified in law, and the verdict must be for the defendants. Such a patent error of so grave a nature immediately requires reversal of the judgment.
30 C.J. 75, pars. 253 and 254; 13 R.C.L. 816.
Accused is not justified in killing one of such persons where he does not entertain a belief that he is in danger of serious bodily injury or loss of life at the hands of such person.
30 C.J. 75, par. 254; Norris v. State, 42 Tex. Cr., 61 S.W. 493; 13 C.J. 816, par. 121; Evans v. State, 44 Miss. 762; Parker v. State, 55 Miss. 414, 420.
One instruction tells the jury that if there was any dangerous attack made upon an officer that officers are so protected by the law that they may then shoot and shoot to kill, regardless of whether the man they shoot is the attacker or not. The language of the court was "that officers Overton and Tucker acted from such motives in their own or each other's self defense to a dangerous attack, real or apparent, then it is your sworn duty to find for the defendants." The court committed the fatal error of omitting to say that the dangerous attack must be from the person killed.
Hall v. State, 1 So. 351; Hill v. State, 94 Miss. 391; Kendrick v. State, 55 Miss. 436, 447.
Fred B. Smith, of Ripley, for appellees.
Subparagraphs (e) and (f) of section 988 of volume 1 of the Mississippi Code of 1930, defining justifiable homicide, are as follows:
(e) "When committed by any person in resisting any attempt unlawfully to kill said person or to commit any felony upon him, or upon or in any dwelling house where any person shall be; (f) When committed in the lawful defense of one's own person or any other human being where there shall be reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and there shall be imminent danger of such design being accomplished."
If Tucker was attacked by both the Gurleys, then he had a right to defend himself against either or both.
30 Cyc. 75.
Not only have the authorities held that a person has a right, under circumstances making it reasonably apparent that he is in danger of death or great bodily harm at the hands of more than one person, to take the life of either or both of his assailants but they also hold that if he is in a combat with one assailant and another person intercedes as a peacemaker, under such circumstances as reasonably leads the person assailed to believe that he is in danger at the hands of his assailant and the peacemaker, then the killing of the peacemaker is not unlawful.
Johnson v. State, 125 Tenn. 420, Ann. Cas. 1913C, page 263.
An officer charged with the execution of the law, or other public duties, is bound to carry out and perform them, and cannot be required or permitted to retire or retreat when assaulted or opposed, and leave the would-be law breaker to work his will; he must stand and meet force with force, and, if he kills in the necessary performance of his duty, the homicide is justifiable.
13 R.C.L. 826 and 827.
Smith Smith, of Holly Springs, for appellees.
If any inference favorable to the defendants can be logically drawn from the evidence establishing their defense then it was the province of the jury to decide what inference should be drawn and it was warranted in returning a verdict for the defendants.
Haynes-Walker Lbr. Co. v. Hankins, 141 Miss. 55, 105 So. 858.
The rule in giving a peremptory instruction is that, conceding all the facts to be true which the testimony tends to establish, and drawing all inferences favorable to the other party which may be drawn logically from the testimony, there is no defense made, or nothing to be submitted to the jury.
Gulf, etc., R. Co. v. Prine, 118 Miss. 90, 79 So. 62; New Orleans, etc., R. Co. v. Penton, 135 Miss. 571, 100 So. 521; Lowe v. Mobile, etc., R. Co., 116 So. 601; New Orleans, etc., R. Co. v. Jackson, 140 Miss. 375, 105 So. 770; Yates v. Houston, 141 Miss. 881, 106 So. 110.
It is a principle very generally accepted that an officer having the right to arrest offender, may use such force as is necessary to exact his purpose, and to a great extent, he is made the judge of the decree of force that may be properly exerted.
State v. Dunning, 98 S.E. 530.
The conduct of the deceased and his brother in this case constituted a much greater and more serious and imminent menace to the life of the officer on that occasion than if they had merely resisted arrest, for the whole evidence shows that the men were guilty of a deadly and unprovoked assault upon Deputy Tucker, during which the avowal was then and there made by Lloyd Gurley that it was his purpose to kill him, but if the conduct of the Gurleys on that occasion only amounted to a resistance to arrest and they then adopted the violent and deadly means and force shown by the records to have been employed by them to effect their release, then the officer had a right to use such force as necessary even to injuring or killing them.
3 A.L.R. 1175; U.S. v. Jailer, 2 Abb. (U.S.) 268, Fed. Cas. No. 15,463; North Carolina v. Gosnell, 74 Fed. 734; Re Laing, 127 Fed. 213; Birt v. State, 156 Ala. 29, 46 So. 858; Holland v. State, 162 Ala. 5, 50 So. 215; Tarwater v. State, 75 So. 816; Bowman v. Com., 96 Ky. 8, 27 S.W. 215; State v. Fuller, 96 Mo. 666, 9 Am. St. (1897), 142 Mo. 418, 44 S.W. 329; State v. Garrett, 60 N.C. (1 Winst. L.) 144, 84 Am. Dec. 359; Com. v. Max, 8 Phila. 422; Robertson v. Territory, 13 Ariz. 10, 108 P. 217; Fosters' Crown Law, 270; Johnson v. State, 125 Tenn. 420, 143 S.W. 1134, Ann. Cas. 1913C 261.
Where there is a conspiracy and an attack by one conspirator, accused has the right to kill him before all the conspirators have joined in the attack.
Welborn v. State, 78 Tex. Cr. 45, 179 S.W. 1179; 30 C.J. 76, par. 256.
A person who is being forcibly and rapidly attacked cannot be required to retain the presence of mind, calmness, and composure necessary to weigh with nicety the question whether some other means short of taking life will answer the purpose, especially where deceased has previously attacked accused with a deadly weapon and without provocation and has threatened to take the life of accused.
30 C.J., page 67, and page 70, par. 242, and page 79, par. 259; Long v. State, 52 Miss. 23; 3 A.L.R. 1172; Wheat v. Com., 118 S.W. 264, 265.
There was no error in the court's instructions to the jury.
Hitt v. Terry, 92 Miss. 671, 46 So. 829; Crow v. Burgin, 38 So. 625; Hattiesburg v. Beverly, 123 Miss. 759, 86 So. 590.
If all instructions taken together constitute a correct statement of the law applicable to the proof, although one may have been incorrect, the error is harmless.
Hattiesburg v. Beverly, 123 Miss. 759, 86 So. 590.
Argued orally by Lester G. Fant, Sr., and Lester G. Fant, Jr., for appellant, and by L.A. Smith, Jr., for appellees.
Seven young men of the immediate community had gone to an abandoned house some time after nightfall during Christmas week for the purpose of engaging in a game of dice. A negro had accompanied them to keep up a fire. In about an hour four deputy sheriffs crashed into the room, and presenting their arms demanded in a menacing manner that all present put up their hands, which being done a search of their persons was conducted. In the course of events thereafter shortly ensuing, two of the young men, brothers named Gurley, were killed by the deputies, and it is for the death of one of them, Lloyd Gurley, that this action was instituted for the recovery of damages.
On the trial the jury returned a verdict for the defendants, and on this appeal, the first contention of plaintiffs is that they should have had a peremptory instruction, and if not, then the verdict should have been set aside as against the overwhelming weight of the evidence. Twelve eyewitnesses to the homicide testified, and there is not only contradiction among most of them, but in some respects these contradictions amount almost to confusion. Looking at the printed pages of the record — and in which we are, of course, at a disadvantage as compared with the jury who saw these witnesses and could note many items of a more or less convincing nature which cannot be reflected by a written transcript — we are much impressed that the killing of Lloyd Gurley was unnecessary both in reality and as a matter of reasonable appearances at the time. This is not a case where ofcers were engaged in the arrest of desperate and dangerous criminals of a vicious type wherein the officers must be allowed largely to pursue their own methods, but is a case merely of neighborhood youths, none of whom were more than casual misdemeanants. And we are impressed, too, that the main thread of the story as related by the plaintiffs' witnesses comes nearer into harmony with the undisputed physical facts than does the version maintained by the witnesses for the defendants.
As an instance of the above, we may refer to the fact that the undisputed evidence establishes that Lloyd Gurley had a severe scalp wound. Plaintiffs' witnesses say that this was caused by Deputy Tucker, who, they say, struck Lloyd Gurley on the head with a pistol. Defendants' witnesses deny this, but make no sort of suggestion, reasonable or otherwise, as to who else than Tucker did it or could have done it; nevertheless the wound was there. As we see it, from this record, the fact just mentioned, and its relation to that particular part of the series of occurrences which is of a vital nature in the correct determination of the controlling issue, is of great probative importance; and there were at least two other extremely significant items of undisputed physical facts which it seems to us can better be harmonized with the version as given by plaintiffs' witnesses. However, after a prolonged consideration of this record we have concluded that the evidence, all taken together, is of such a nature that a peremptory instruction would not have been proper; and since the case is to be remanded for a new trial, for reasons now to be stated, it is unnecessary to consider whether the motion for a new trial should have been sustained on the assigned ground that the verdict was against the weight of the evidence.
We have stated so much of the case as above in order to disclose the necessity that no material error of law should be permitted in the instructions. It was the theory of the defense that the two Gurley brothers had made a deadly and concerted attack upon Deputy Tucker, and that Lloyd Gurley was holding on to Tucker, seeking to pinion his arms, while Glenn Gurley was endeavoring to shoot Tucker with a pistol over which Glenn Gurley and Tucker were struggling, and that in this dangerous and precarious situation, Deputy Overton shot and killed Lloyd Gurley in order to save Tucker from death or great bodily harm. Lloyd Gurley was entirely unarmed, as the deputies knew or reasonably ought to have known; and the story of plaintiffs' witnesses was that Lloyd Gurley did not have hold of Deputy Tucker, had not had hold of him, had made no attack upon Tucker, and that as a matter of fact Tucker was beating Lloyd Gurley over the head with a pistol, or had knocked him away with a blow on the head with a pistol, when Lloyd Gurley was shot by Overton; and that neither Tucker nor Overton nor any other person was in danger on account of anything being done by Lloyd Gurley at the time he was shot. The jury could well have believed, under all the evidence, that at the time Lloyd Gurley was shot Glenn Gurley was engaged in an attack on Tucker, but that Lloyd Gurley was not then, and had not been, so engaged.
In this situation, the court gave, at the request of defendants, not one but three instructions which told the jury that if either of the Gurleys were engaged in a murderous attack upon the officers, or if the officers were in danger at the hands of either of the Gurleys, or if there were any overt murderous act towards the officers by either of the Gurleys, then the officers were justified in killing either or both of them. This is not the law as applied to the situation being adjudicated, and appellees so admit. They contend that the three instructions complained of are not fairly subject to the stated construction; but upon a repeated reading of them we are unable to see how the construction mentioned can be reasonably avoided.
And instruction No. 11 is also erroneous, and in this: The testimony for the defendants is that while Glenn Gurley was seeking to shoot Tucker, his brother Lloyd Gurley called on him to kill Tucker. This was disputed by plaintiffs' witnesses. The said instruction told the jury, as was the ultimate effect of the language therein used, and as may have been understood by the jury, that this command by Lloyd Gurley to his brother to kill could be viewed as the equivalent of an overt, continuous, physical act of concerted attack by Lloyd Gurley as well as by Glenn Gurley; but if the jury may not have so understood the instruction, there is to be said of it, at least, that it is so drawn that the alleged declaration or command by Lloyd Gurley is in effect singled out, or particularized, in such a manner as to advance it into undue prominence as a part of the related facts, 64 Corpus Juris, 682-690, and that it amounts to a charge upon the effect of a certain piece of evidence in matter of relative weight or in probative value, when this belongs here to the jury. If Glenn Gurley had unjustifiably killed the deputy, and Lloyd Gurley were being prosecuted therefor under a joint indictment with Glenn Gurley, the calling upon his brother by Lloyd Gurley to kill would have been sufficient, if proved, to convict Lloyd Gurley; but it does not follow that Lloyd Gurley could have been justifiably killed simply because of that declaration or command. If so, then an unarmed person who, one hundred feet away, calls to another to kill, may himself be killed under the plea of self-defense, and this of course is not the law. Necessity, or the reasonable belief of necessity, is the test which is to be applied in that state of case, and mere words can hardly be conceived of as creating any such necessity as to the person using the words.
The following instruction was granted at the request of defendants: "The court instructs the jury for the defendants that unless you believe from a preponderance of all the evidence in this case that the plaintiffs have established their case in the manner and form as charged in the declaration, then it is the sworn duty of the jury to return into court the following verdict: We the jury find for the defendants." This instruction has been repeatedly condemned by this court. We need not repeat what was said of it in Yazoo M.V.R.R. Co. v. Cornelius, 131 Miss. 37, 47, 95 So. 90; but add only that the declaration in this case contained many averments, and at length, by way of recital and inducement, several of which were not proved or attempted to be proved, and yet the jury in seeking to obey this instruction may have thought them material. The only way to avoid harmful error in the giving of this instruction in a case such as we have here before us is to assume that the jury knew better and didn't follow the instruction, and every substantially erroneous instruction could be held harmless on the same assumption. We would not reverse for the latter instruction alone, and this because of the fourth instruction obtained by plaintiffs, but reference is made to the matter that the error may be avoided in any subsequent trial.
We believe the above will sufficiently indicate a proper course to be taken with the instructions on a new trial. Because of the extreme improbability that any change had taken place, we think it would have been better to receive the evidence as to the signs on the joist of broken glass; and because of the extreme improbability that the liquor fines had anything to do with the final conduct of the officers, that testimony was properly rejected.
Reversed and remanded.