Canterbury v. State

Mayes, J., delivered the opinion of the court. There are nineteen assignments of error in this case, but few of them are pressed seriously. We have carefully considered them all, and concur that none of them is well taken, except that our Brother Caliioon maintains that the first instruction for the state is erroneous, and that the modification of the twelfth instruction for the defense is erroneous, and that the second instruction for the state is erroneous. With the exceptions indicated in the dissent of our brother, we all concur that no one of the other assignments of error is well taken. Concerning the contention that the indictment should charge the specific weapon with which the assault and battery was committed, and that it is not sufficient to charge that it was committed with a deadly weapon, we merely observe, first, that we have examined carefully all the authorities cited by the learned counsel for appellants, and find that they do not sustain the contention; and, second, that any fair reading of this testimony, taken as a whole, shows that the knives used were pocketknives. See 1 Wharton’s Criminal Law, p. 602; Hull v. State, 79 Ala., 32; 1 Bishop on Criminal Procedure, sec. 488; Porter v. State, 57 Miss., 300. The case made by the facts in this record is briefly as follows: Sam ILarrison had been operated upon for appendicitis and was in an enfeebled condition. A brother of Harrison had killed a brother of the Canterbury boys. So far as this record is concerned, it does not appear that Sam Harrison had any connection with that killing. This difficulty occurred on Sunday at a church meeting. Harrison and Luckey were under a tree, some little distance away, preparing to eat dinner. Abel Canterbury during the morning had been grimacing at Harrison and frowning at him wherever he chanced to see him. Abel and Crosby walked up to where Harrison and Luckey were sitting, and Crosby exchanged greetings with Harrison and Luckey. Harrison did not speak to Abel Canterbury, but Abel Canterbury insisted that he had done so. Harrison kept — 296 — insisting that he had not spoken to him, and. that he did not want to have any trouble with him. Abel Canterbury pulled off his coat and said he was the best man on the grounds. Old man Canterbury got in between them, and tried to keep them apart; but Abel kept coming closer and closer, and finally he and Harrison got together. Harrison struck Abel Canterbury over old man Canterbury’s shoulder, according to the testimony of the defense, and old man Canterbury struck Harrison in the back. Both of these blows, apparently, seem to have been with knives. Abel Canterbury rushed off and snatched a knife from some one on the grounds, and turned and made for Harrison, who, having cut old man Canterbury, undertook to run away. This is the first stage of the difficulty. It is obvious that the difficulty was brought on by Abel Canterbury, and that Harrison was in no manner to blame for its commencement. After Harrison fled, all three of the Canterburys pursued him with knives in their hands, Harrison retaining his knife. Old man Canterbury was so badly wounded that he stopped, the two appellants still pursuing Harrison with drawn knives. They chased him for about fifty yards. At the corner of the schoolhouse Bud Canterbury and Harrison exchanged licks, Bud Canterbury stabbing him in the shoulder, and Harrison cutting his collar. Harrison kept up his flight around the house, and finally stumbled and fell to the ground, and both' the appellants fell on, him. They both got on him and stabbed him many times, or, as one witness expresses it, “for all they were worth.” In this condition, Harrison lying on the ground and both the appellants sitting on him, stabbing him, Abel Canterbury’s sister got hold of his arm, trying to stop the trouble. He jerked himself free of her, when a Mr. Curry came up and with a stick which he had in his hand prevented Abel Canterbury from further stabbing, by interposing his stick between the blow and the body. Whereupon Abel Canterbury threatened him by saying that if he did not stop interfering with him he would cut him, and it was only upon the — 297 — arrival of several other men, who took charge of Abel Canterbury, that he could be pulled off the prostrate man. Bud Canterbury, also, had to be taken off by force by several parties. This is this case, as plainly made' out by. the testimony for the state in this record. It is further to be observed that the district attorney, with commendable fairness, put on the stand nearly all the eyewitnesses who saw the whole transaction. The witnesses for the defense are composed partly of relatives of the appellants, but mostly of those who did not see the entire difficulty, but mainly what took place at the wagon between John Canterbury (the old gentleman), Abel Canterbury, and Harrison. The motive impelling Abel Canterbury seems to have been the difficulty between Harrison’s brother and his brother. On this ease it is impossible to doubt that the defendants intended to kill and murder. The contention that these two appellants did not intend to kill and murder Harrison, when the testimony shows that they chased him for fifty yards with drawn knives, falling upon him when he had fallen to the ground in k helpless condition; stabbing him with their knives, and stopping only after the most strenuous effort; threatening those who sought to draw them off — but were acting in self-defense and had the right to pursue a man fleeing for his life in order to save their own lives, is one, to put it mildly, that utterly fails to commend itself to our minds. Was it necessary to the preservation of the lives of these two appellants, or to save them froin any great bodily harpa, that they should chase a man in full flight for fifty yards, and then pounce upon him while he was down and helpless ? It is impossible for us to conceive how any serious contention can be made that these two appellants could, in any imaginable way, have been in danger from Harrison, while he was in full flight, of death or great bodily harm. On this ktate of the case the court gave instruction number one for the state, set out in the dissenting opinion, which we think states the case precisely as it ought to have — 298 — been stated, announcing the law applicable to the facts with absolute correctness. The testimony abundantly shows that ITarrison had abandoned the difficulty and was fleeing for his life, and was then pursued by the appellants, fallen upon, and stabbed whilst he was on the ground, when neither of the defendants could have been in the slightest danger of death or great bodily harm at his hands. The twelfth instruction for the defendant is as follows: “The jury are instructed, for the defendants, as a matter of law, that if they believed, and had reasonable cause to believe, that Sam ITarrison had sought them out for the purpose of killing them, or of doing them great bodily harm, and that Sam Harrison was prepared therefor with deadly weapons, and that Sam Harrison made demonstrations manifesting an intention to commence an attack, then the defendants or defendant so threatened were not required to retreat; but they had the right, under the law, to stand and defend themselves, and to pursue and if in so doing it was necessary, or upon reasonable grounds Sam Harrison until they had secured themselves from danger, it appeared to he necessary, to commit an assault and battery with intent to kill Sam Harrison, their acts are excusable upon the grounds of self-defense, and if the jury so believe from the evidence they must find the defendants not guilty.” This instruction was modified by the court, but not read to the jury. The first observation to be made about this instruction, which was given with the simple modification of striking out the words “and to pursue Sam Harrison,” is that, as asked, it was manifestly erroneous on the case made. There was not a scintilla of evidence in the case to show that “Sam Harrison had sought them out for the purpose of killing them, or of doing them great bodily harm,” or that Sam Harrison “made demonstrations manifesting an intention to commence an attack. Abel Canterbury began the difficulty beyond any controversy, Harrison seeking to avoid trouble, and the instruction as given was manifestly erroneous, for the reason that there was no evidence to — 299 — sustain it. Being erroneous as asked, for the reason that there was no testimony to support the instruction, the modification did not cure the error, and the instruction as modified should have been refused by the court. This being the case, no error could be predicated on this instruction, because the court modified it and the defendant did not use it, because the instruction was wrong as asked and as modified, and the failure to use an erroneous instruction can never constitute reversible error. We repeat that no evidence can be found in the record to support this charge, and that the only error the court committed was against the state in granting to the defendant, even as modified, an instruction wholly unwarranted by the testimony. The only demonstration Harrison made after the trouble at the wagon was to flee for his life, and if at that time the appellants had stopped, as they ought to have done, being themselves in no manner of danger, there might have been something in their contention that what they did up to that time was done in the heat of passion. Our dissenting brother earnestly contends that it was the duty of the court to give a charge to the jury that they might find a verdict less than a verdict of assault and battery with intent to kill and murder^ and that there was evidence tending to show that what was done was all done in the heat of passion. We cannot agree with him in this view of the case made by the evidence. As stated, these appellants chased this man fifty yards, fell upon him, and stabbed him when he was down and helpless. It seems to us to be utterly unreasonable to contend that this was in the mere heat of passion, and the jury have so found. As to the insistence that it is the duty of the court to give a charge to the jury that they might find a less verdict than a verdict of assault and battery with intent to kill and murder, the conclusive answer is that in this state the law has absolutely taken from the judge the right to give any charge to the jury in any state of case, unless that charge is requested by the parties to the litigation in writing. The circuit judge is — 300 — helpless in the matter. The citation from p. 212, vol. 11, Ency. of Pleading and Practice, is good law in those states in which judges are permitted to charge the jury what the law is, as in the English practice and the federal practice; but it has no application in this state under our peculiar statute about instructions.. The law in our state on this subject is set down in terms too plain to be misunderstood. . In the case of Archer v. Sinclair, 49 Miss., 343, Simrall, J., delivering the opinion of the court, said: “The parties have a right to indicate, by written requests, the points upon which they respectfully desire the jury to be informed as to the law. Under our system it would not be proper for the court to instruct sua sponteIt seems perfectly clear, from the course the trial took, that the defense fought this case out below on the issue of self-defense, 'purposely declining to ask instructions suggesting that the defendants might be guilty of something less than that charged; and the state also fought it out on the issue that the appellants were guilty as charged, or not guilty at all. The appellants cannot be permitted to experiment with the courts in this fashion. They will not be allowed intentionally to decline to ask charges presenting to the jury the theory that they might be guilty of an attempt, to kill and slay, growing out of the heat of passion, and not of an attempt to kill and murder, seeking to obtain a clear acquittal on the ground of self-defense in the court below, and then for the first time in this court complain that- the court did not of its own motion give a charge about a lesser offense, which charge they themselves studiously avoided asking. Nothing in the world was easier than for the appellants to have asked such a charge. They did not do it, and the court was by the law prohibited from giving any instructions for the defense except those which they asked in writing. The court cannot be blamed, therefore, for the absence of such a charge in this record, since the appellants, who alone could have asked it, declined to do so. The only error we deem it necessary to advert to is the as — 301 — signment that the second charge is erroneous, because it told the jury in the alternative that, if they believe beyond a reasonable doubt that appellants made an assault simply, they might nevertheless be convicted of assault and battery, the indictment charging assault and battery. Viewed as a mere abstract proposition, it undoubtedly is an incorrect statement of the law to say that, where an indictment charges an assault and battery, the jury may convict of assault and battery, although they only believe from the evidence the defendant to be guilty of an assault. But the indictment here charges assault and battery both. The evidence overwhelmingly shows both assault and battery to have been committed by both these appellants, and the error amounts to nothing — could have had no possible influence on the verdict. Nobody contends, except the two appellants themselves, that they did not stab Harrison on the ground after chasing him. It is true both appellants swear positively that neither saw the other stab Harrison while lying on the ground. It is further true — a most astonishing statement — that each swears that he did not see the other on Harrison. On the whole case, it seems to us, after the most patient consideration, -that the learned circuit judge charged the law with great accuracy, except in charging far too favorably for the defense in the twelfth instruction; that the district, attorney acted with great fairness in putting on the stand all eyewitnesses who saw the whole difficulty; that the verdict is.right, and that no other result could possibly be reached on any reasonable view on another trial; and that the judgment should be, and hereby is AFFIRMED. '