Guice v. State

Citations

• 60 Miss. 714

Syllabus

<p>1. Criminal Law. Homicide. Overtact. Evidence of previous threats. Case in judgment.</p> <p>W. and B. were indicted for killing H. The evidence established these facts: H. was riding in an open wagon through a streetin the town of N., when W. and B. stepped out of a store and fired on him from the rear or side of the wagon. They followed the wagon, and continued to lire upon him, but their shots were ineffectual till one of them ran up and placing his pistol over the side of the wagon fired a shot into H.’s body. He then jumped from the wagon and fell to the ground, and when he attempted to rise W. and B. again felled him by pistol shots and stabs with their bowie-knives; from which he quickly expired. H. was unarmed and made no resistance or struggle, except a feeble effort to escape. One of the defendants testified that he and his co-defendant, who is his brother, were standing in the door of a store when they observed H. sitting in the wagon with his hands resting in his lap; but when H. saw them he put one of his hands to his back or hip, as if to draw a pistol, and then he and his brother opened fire, believing that Hewas about to shoot them. After having given this testimony the defendants offered evidence of previous difficulties between themselves and H. extending through many months, in all of which H. was the aggressor; of two attempts made by him to assassinate them; and of repeated threats to kill them, continued down to a short time before his death. The court refused to admit this evidence. Held, that the killing took place when the accused were in neither actual nor apparent danger, and after all apprehensions excited by the act of the deceased in putting his hand to'his hip (if such apprehensions ever existed or such act ever took place) must have been dissipated; and as no precedent threats or difficulties would have constituted any defence in such circumstances, the evidence proffered was properly excluded.</p> <p>2. Same. Judge presiding out of