Brabston v. State

Citations

• 68 Miss. 208

Syllabus

<p>1. Criminal Law. Justifiable homicide. Code 1880, § 2878. Instruction.</p> <p>On a murder trial it appeared that during an election Lanier placed his hand on the shoulder of deceased, who was a candidate, and said: “ We will seud you up Salt river.” Deceased pushed Lanier down and drew a pistol, and as he arose, unarmed, fired at him. The shooting at once became general, culminating in a duel mainly between deceased and accused, and lasting until both fell, the former killed, and the latter wounded. Accused claims that the homicide was justifiable, under § 2878, code 1880, being necessary to prevent the felonious killing of La-nier. Held, error to instruct for the state that the homicide was not justifiable, unless the accused shot, not of malice, but because it was necessary to save the life of Lanier, feloniously assaulted by deceased, and that Lanier had given no provocation for such assault, but was engaged in lawful business. Such instruction does not define what constitutes a felonious assault, but assumes that what is relied on as a provocation justified the attack made upon Lanier by deceased.</p> <p>2. Same. Homicide in defense of another. CWe 1880, § 2878. Instruction.</p> <p>Under such circumstances it was likewise erroneous to charge for the state that if the accused, actuated by hatred for the deceased, shot at him when in no danger to his own life or limb, or if, by the use of a deadly weapon, he brought on the duel, his killing of deceased would be murder. This ignores the fact that the deceased began the combat with a third person, who was unarmed, and asserts justification of the assault by the deceased on such person merely because of the latter’s conduct and the language above quoted.</p> <p>3. Same. Instruction in the language of the statute.</p> <p>It is error in such case to refuse an instruction asked by the accused to the effect that if deceased was making a deadly assault upon another, and if accused had reasonable ground to apprehend tha