Fore v. State

Woods, C. J., delivered the opinion of the court. The first instruction given for the state is fatally erroneous. It assumes that the appellant was armed with a concealed weapon which he had provided to shoot Matthews with on the [737] first opportunity, and thereby took the determination of these most important facts from the jury. It is erroneous, also, in omitting altogether Matthews’ reply to appellant’s direction to his wagon driver to ‘ ‘ go ahead, ’ ’ and in making appellant follow up this direction to the wagon driver by the inquiry, addressed to Matthews, what he had to do with it. The full statement of the facts disclosed by the state’s witnesses shows that when the appellant told his driver to “go ahead, ’ ’ Matthews squared himself in his buggy, just like he had driven up, and told the negro driver to hold on; that he was going to have the oxen, and then the appellant asked Matthews what he had to do with it. The instruction is erroneous, also, in that it is a charge upon the weight of evidence. What significance and value attached to Matthews’ action in throwing his hand behind him, immediately upon denouncing the appellant as a damned liar, was for the consideration of the jury, and not the court. The instruction is erroneous, furthermore, because it cut the appellant off from the right of self-defense, without first requiring the jury to find that the appellant was the aggressor, and brought on the difficulty in which Matthews lost his life. The fifth instruction given for the state was erroneous in assuming that the appellant was £ 1 armed with a deadly weapon which he had provided and intended to use in a difficulty with Matthews by shooting him with it. ’ ’ The rule of law on this subject is plain and well known. In the case of Prine v. State, 73 Miss., it was said: “He [the slayer] must have been the originator of the difficulty; he must have entered it armed, and he must have so brought it on and’ entered into it intending to use his pistol, and overcome his adversary, if necessary, in the course of the encounter. ’ ’ The fourth and sixth instructions refused the appellant were substantially correct. We assume that they were refused because there was no witness who swore that Matthews, in a loud and angry tone of voice, called appellant a damned liar, and be [738] cause no witness swore that Matthews threw his hand behind him in a menacing and threatening manner. But these objections are to words merely. The jury should have been permitted to say whether Matthews spoke angrily, and whether his act of throwing his hand behind him, under all the facts disclosed, was threatening. These charges substantially, and, in their essential parts, correctly, announced the law applicable to the appellant’s theory of the case. The. photographs, and all the evidence touching them, should have been excluded. They were not simply reproductions of the scene of the homicide. They were photographic representations of tableaux vivants carefully arranged by the chief Witness for the state, whereby his version of the tragical occurrence should be brought vividly before the mind’s eye of the jury, and be impressed upon the jury as the view of the actual occurrence, and not as the mere statement of the facts of that occurrence as detailed by this witness. Their effect, if not their purpose, was, by photographic processes, to strengthen and bring out in striking and captivating fashion the version of the difficulty as given the jury in this witness’ evidence. We repeat, the pictures were not photographic representations of the scene of the lamentable tragedy; they were artistic reproductions of situations carefully planned by the state’s chief witness. Their only effect was to graven upon the jury’s memory the account of the homicide given by the witness — an account at variance with that of at least two eyewitnesses of the -homicide. That they were hurtful to the prisoner cannot be doubted. Indeed, with the average jury, these dumb witnesses, created by the joint efforts of the state’s leading witness and the photographic artist, might go far to secure a verdict for the party offering them. Reversed and remanded.