Moriarty v. State

Arnold, J., delivered the opinion of the court. On the facts of record we find no error in the instructions given to the jury for the State, and we commend the discretion and the just conception of official duty which combinedall the law necessary for the prosecution in the case in four brief and simple instructions. If it be conceded that Powell was not a competent juror under § 3072 of the code, the appellant has no cause of complaint on this account after he accepted and enjoyed the bounty of an additional peremptory challenge tendered to him by the State. The objection of the district attorney to the testimony of the witness Pepper on cross-examination was well taken. If the character of the deceased as a dangerous man had been material it could have been proven only by evidence of general reputation. For reasons quite as obvious the belief or conjecture of the witness that the deceased always went armed was also inadmissible. No error was committed in excluding from the jury the testimony offered by the appellant as to antecedent threats made by the deceased, or as to previous difficulties between him and the deceased, or as to the character of the deceased and his habit of going armed and being skilled in the use of deadly weapons. Such testimony was inadmissible unless it was shown that at the time of the killing something was being done by the deceased which, interpreted by the light of such testimony, afforded the accused reasonable ground to apprehend a design on the part of the deceased to take his life or do him some great personal injury, and to believe that there was imminent danger of such design being accomplished. Wesley v. [662] The State, 37 Miss. 346 ; Holly v. The State, 55 Miss. 424 ; Kendrick v. The State, Ib. 436 ; Scott v. The State, 56 Miss. 287 ; Spivey v. The State, 58 Miss. 858. The action of the appellant after he fired the first shot cannot be reconciled with any rule of law upon which such evidence is rendered admissible. At the second shot his unarmed and unresisting victim had turned and was fleeing from him and had gone twenty or twenty-five feet. But, without reference to this consideration, was the excluded testimony competent when referred to the circumstances which attended the firing of the first shot ? We think not. The deceased had uttered not a word, and had made no demonstration, hostile or otherwise, directed toward the appellant. If the deceased threw his hand to his hip-pocket, as alleged, and the act imported any significance to any one, it was to Pepper, with whom he “ was engaged in somewhat angry conversation,” and not to the appellant, to whom he had not spoken. The appellant was doubly armed,, with a double-barrel shotgun across his lap and a pistol in his pocket or about his person, within a few feet and in full view of the deceased. His position with reference to the deceased was such as to deter him from violence, at least toward the appellant, and to enable the appellant to meet and successfully resist any movement manifested against himself. Assuming that the facts sought to be proved existed and were known, it may be confidently affirmed that a reasonable man so situated would have no just ground to believe, from what was done by the deceased, that it was necessary for him to kill in order to save his own life or to protect himself from great bodily harm. Affirmed.