Holly v. State

Citations

• 55 Miss. 424

Syllabus

<p>X. Criminal Law. Overt act. Previous threats, when incompetent.</p> <p>■When a party with a deadly weapon assaults another, who has done no act and made no motion, gesture, or other demonstration indicating any present .violent purpose toward the assailant, proof offered by the latter of'violence threatened against him by the party assailed will not be admitted. This is true, though the threats extended through several days, and down to the morning of the day in the evening of which the attack was made, and though the party assailed was turbulent and dangerous when drunk, it appearing he was sober at the time in question.</p> <p>2. Samb. No exact definition of overt act possible.</p> <p>No exact definition of an overt act can be given. The term embraces anything which evinces a present design to make an assault; acts which seem but trifles when viewed alone, when considered with preceding facts, may become fraught with deadly meaning.</p> <p>3. Same. When court should decide there is no overt act.</p> <p>In a case where all conjecture that there may have’ been an overt act on the part of the party assailed is negatived by the testimony, and there is no pretense of any demonstration by him, but that there was none is established by undisputed testimony, it is the duty of the court to exclude evidence of previous threats of violence made by such party towards the assailant. But, in doing so, the court should proceed with caution in deciding that nothing was done by the party assailed which could reasonably have been construed into an overt act; and if the evidence on the subject be conflicting, or the court be in doubt, the proof of threats should be admitted, so that the jury may resolve the doubts in the light of the threats.</p> <p>4. Same. Threats. When proof of inadmissible.</p> <p>Where a man is sitting quietly talking to his friends, and is fired on after he has informed his assailant that he is unarmed, proof of his previous threats against the assailant is