Echols v. State

McLain, C. Will Henry Echols, tbe appellant, was convicted of murder in tbe circuit court of Tate county and sentenced to the penitentiary for life. Prom this judgment be appeals to this court. Tbe record discloses that be was a negro man, about sixty year.s old, and bad a family consisting of a wife — 691 — and twelve children. He was a thrifty, honest, and peaceable citizen, possessing the confidence and respect of all. His good character was abundantly testified to by his white neighbors, as well as those.of his own race. No finer example of honorable and worthy citizenship could have been shown or selected from his race. Pointelle Echols, commonly called Shoat Echols, was a cousin to appellant, and had lived at his house for the past seven ■or eight years. He was about thirty-eight years old and unmarried. About six weeks prior to the killing of Shoat hy appellant, he (appellant) requested Shoat to leave his home and seek quarters elsewhere, for the reason he was of the opinipn that Shoat had assisted one of his young daughters to elope and marry without his consent. On the night preceding the morning of this fatal difficulty, appellant’s wife informed him that she had just discovered that their sixteen year old daughter, Etta, was pregnant. His daughter informed her father, when he asked her about it, that Shoat had accomplished her ruin, and stated to him that the reason she had not disclosed it to him and her mother before was that Shoat told her, if she told it, he would kill her, and that if appellant, her father, said anything about it to him, he would kill him. On the trial this statement was excluded from the jury. Early next morning appellant, armed with a Winchester rifle, went at once to Henry Ward’s house (where-deceased lived), some two hundred or three hundred yards distant from appellant’s house. He claims that the object of his mission was to demand an explanation of the conduct of deceased, and to see what reparation he proposed to make for his treatment of his daughter. On his arrival at Ward’s home, he was told that deceased was not in, as he was out squirrel hunting.. Appellant retired, but returned a few hours afterwards, and was then informed that deceased was there. He asked for him to come out to see him,' and the state’s witnesses — 692 — all say that deceased sent him word that he did not like to come out on a man with a gun. Appellant responded by saying that he meant no harm by carrying his gun, and that he did not intend to hurt him. Appellant started in the house, and did walk into the hall,of the house, and as he got opposite or near to the door of the room in which deceased was, he (deceased) stepped out of the door unarmed to see appellant, and at that moment appellant instantly fired upon deceased with a Winchester rifle, but failed to hit him. Thereupon deceased grabbed the barrel of the gun, and each began to scuffle for it. While in this deadly struggle for the gun, appellant pulls a pistol from his pocket, still holding onto the gun, and fires two or three shots into the body of deceased. At that moment, deceased released his hold upon the gun, and staggered back, and fell from the hall or porch on the ground, apparently dead. Thereupon appellant raised his rifle and fired two shots into the body of the deceased as it lay on the ground. From the beginning-to the end of this death struggle, not a word was uttered by either combatant. Appellant’s version of the affair was in substance this: That, when he asked for deceased, Henry Ward replied that “Shoat says he won’t come out on a man with a gun;” that he then started in the house, consisting of two rooms and two sheds. The two large rooms were separated by a hall about seven feet wide. As he entered the hall, he did not know in which room deceased was, and that he directed his attention towards the east room, when suddenly the door of the west room was thrown open, and the first he saw of the deceased was when he grabbed appellant’s rifle, and the deadly struggle for the weapon began. The record shows that both were about equal- in strength, and it is claimed that Will Henry had been afflicted with rheumatism for several months, and had just recently discarded his crutches. He claims that the gun was discharged in the scuffle, the ball passing — 693 — through the door ranging downward through the floor. Appellant claims that they continued to struggle, each seeking possession of the gun, and that the gun was for the second time discharged, and that this shot struck Pointelle. He states about this time both fell from the porch, and that deceased released his grip on the gun, •and then turned around, and then again advanced upon appellant with hands outstretched as if to seize him or the gun. Appellant claims that he then fired upon deceased and he fell dead. He further alleges that there were three shots fired, and that he did not fire into the body of deceased as it lay upon the ground. He bitterly denies having a .pistol in his possession during the difficulty. Appellant further testified that his daughter had • told him a short time prior to the shooting that “Shoat told her he would kill her if she said anything about it, and if I said anything to him about it he would kill me, too.” Mose Faulkner testified that deceased said to him, in the presence of his wife, if he (Will Henry) ever fooled with him, “I am going to kill him.” Annie Faulkner testified that three, or four days before Christmas Pointelle said to her: “If Will Henry ever fooled with bim, he was going to kill him.” All of these statements were excluded by the court upon the objection of the state, and 'over the protest of defendant. The foregoing is a brief abstract, of the facts as con- • tained in the record. Appellant complains that the court committed error in refusing instruction No. 1. There is a slight error in this instruction; but upon an inspection of instruction No. 15, given the defendant, we are of the opinion that the principle of law sought to be invoked by instruction No. 1 was fairly stated in this instruction No. 15, given the defendant, which says: “That if the jury believe from the evidence that the defendant went to the house of Harry Ward to see Pointelle Echols about his daughter, and carried with him his Winchester rifle, and that — 694 — he started into the room where Pointelle was on a peaceful mission, and that Pointelle, when he was in no danger at the hands of defendant, real or apparent, sprang out and grabbed the rifle, and that said Pointelle attempted to wrench the rifle from defendant, and that defendant reasonably believed that he was in danger of suffering death or great bodily harm at the hands of' the deceased, and drew his pistol and shot deceased while they were struggling over the rifle, and that Pointelle fell dead from the pistol shots, and after he was dead defendant shot him twice with his rifle, then the jury will find defendant not guilty.” We will make this further observation. While it is. true no man has any right to take the law into his own hands to avenge supposed or real grievances inflicted upon him or any member of his family, yet appellant did not violate this wise principle of law, if he, after learn-, ing of the deplorable condition of his daughter, inflicted upon her by the deceased, speedily sought deceased for an explanation and for a peaceful adjustment of the matter; and in seeking this end he had the further right, with the lights before him, to arm himself, not with the intention to' provoke a difficulty, but to protect himself, if necessary, in self-defense. The vital question was whether the interview was sought with the deliberate purpose of provoking a difficulty, or was the interview sought in a friendly spirit to adjust the matter in some amicable way. If appellant, in attempting to adjust this matter, approached the deceased in the spirit as above indicated, and deceased, without any provocation on defendant’s part, attacked appellant, by suddenly seizing his rifle, when appellant was not attempting to use same, and deceased attempted to wrench same from him, and he, appellant, reasonably believed that he was in real or apparent danger of his life or great bodily harm at the hands of deceased, killed him, he cannot be held, under such circumstances, guilty of murder. The Court of — 695 — Criminal Appeals of Texas, in two well-considered cases, has maintained this principle. Shannon v. State, 35 Tex. Cr. R. 2, 28 S. W. 687, 60 Am. St. Rep. 17; Melton v. State, 47 Tex. Cr. R. 451, 83 S. W. 823. See, also, Patterson v. State, 75 Miss. 670, 23 South. 647. Appellant further complains that the court erred in excluding the threats testified to in this case, and also of the refusal of instruction No. 2, which is as follows: “In determining who was the aggressor in the fatal difficulty, and in determining whether deceased intended to use the rifle against defendant if he had secured the same, if they believed he attempted to secure same at the time of the fatal shots, they may take into consideration, together with all the evidence in the case, any threats which the evidence shows were made against defendant, whether such threats were communicated to him or not. And in passing on the conduct of defendant, as to whether or not he reasonably apprehended an attack from deceased with a deadly or dangerous weapon at the time of the fatal shots, the jury will or may take into consideration, together with all the other evidence, any threats which the evidence shows were communicated • to the defendant, which were made by deceased against him.” In the light of the facts of this case, the court erred in excluding the threats. After the exclusion of the threats, the refusal of this instruction was correct. But if the threats had been admitted, as they should have been, the refusal of the instruction would have been error. This court has held, time and again, that uncommunicated threats are admissible when there is a conflict in the testimony who was'the aggressor, where they throw light on the significance of the acts of the deceased. Sinclair v. State, 87 Miss. 330, 39 South. 522, 2 L. R. A. (N. S.) 553, 112 Am. St. Rep. 446; Johnson v. State, 54 Miss. 430. Prom the record in this cause, it is manifest there was a conflict in the testimony as to whether defendant or deceased was the aggressor at the — 696 — time deceased was killed. These uneommunicated threats were admissible. Some of the authorities, throwing light upon this point in a more or less degree, are Johnson v. State, 66 Miss. 192, 5 South. 95; Wiggins v. Utah, 93 U. S. 465, 23 L. Ed. 941; Allison v. U. S., 160 U. S. 203, 16 Sup. Ct. 252, 40 L. Ed. 395. It is contended by the prosecution that all these threats were conditional, and were not admissible. The alleged threats were: “If he speaks to me about it, I will kill him, too.” “If he tackles me about it, I will kill him.” “If he fools with me, I will kill him.” Bear in mind that at the time these threats were made the wrong of the girl had been committed, but the appellant was in ignorance of this; but the deceased knew it too well for his own comfort, and doubtless his guilty conscience often whispered to him, “And be sure your sin will find you out.” Indeed, the deceased knew all the time that, when “swelling nature” unfolded this wrong, as it must, that the father would say “something to him about it.” He at once sought the perpetrator of the deed, with intent, according to his testimony, to adjust the unfortunate affair in some amicable way, perhaps hoping that the wrongdoer might make reparation by marrying the girl he had wronged. Be this as it may, he had a right “to speak to him about it” in the spirit and on the lines heretofore indicated. On the morning of the fatal difficulty appellant did then and there attempt “to speak to him about it.” The condition of the alleged threats of deceased had materialized, and, if appellant’s testimony is true, deceased did then and there attempt to make good his threats by an immediate attack upon him. These threats were admissible, to throw light on the significance of the acts of the deceased, and to further aid the jury in determining who was the aggressor. It was the exclusive province of the jury to say, with this testimony in and this instruction given, what credit, if — 697 — any, they would give to the defendant’s evidence and to his theory of the case. For the error in excluding the threats, we think this, case should he reversed and remanded. jReversed and remanded. Per Curiam. The above opinion is adopted as the opinion of the court; and, for the reasons therein indicated by the commissioner, the case is reversed and remanded.