Pulpus v. State



82 Miss. 548; 34 So. 2; 1903 Miss. LEXIS 132

March, 1903, Decided


COUNSEL: T. J. Buchanan, for appellant.







CALHOON, J., delivered the opinion of the court.

The defendant and Alex Pulpus and Arthur Orr were jointly indicted for the murder of George Anderson. At the next term, Isaiah Gillespie was separately indicted for this same offense. We have only to do with the case of Austin Pulpus, who was separately tried. This defendant and George Ander? son, on the day preceding the homicide, were engaged as laborers in ditching, when some difficulty occurred between them, and Anderson struck him on the head with a spade, inflicting a bad scalp wound. After the blow Anderson threatened to kill Austin Pulpus. Only these two were engaged in this trouble. Austin Pulpus went to a doctor and had his head shaved and wound sewed up, and there is no evidence to show a conspiracy between Austin Pulpus, Alexander Pulpus, Arthur Orr, Isaiah Gillespie, Jesse Wilson, and Fee Wilson to perpetrate the homicide, but the evidence of conspiracy, if there be any such, is exceedingly unsatisfactory. On the night of the day when the blow with the spade was inflicted on the defendant, he armed himself with his father’s pistol, as he says, for the purpose of being in condition to defend himself if Anderson undertook to carry out his threat.

All of the persons mentioned, including defendant, were at Joseph Randle’s house on the next morning, which was the day on which the homicide was committed. The most of them had rabbit sticks, and say they hunted rabbits as they came through the fields. George Anderson was at work there, and the defense showed by testimony that they saw him and spoke to him. All these parties ditched for Joseph Randle on the afternoon when the first difficulty occurred, and it is said, on the part of the defense, that they wanted Joseph Randle to go down to the ditch to see about measuring up the work, and so Randle and Isaiah Gillespie went on the road, and the others through the fields. The measuring was done at the ditch, and Randle was the first to leave the ditch, going home. Soon after, Austin Pulpus, on account of his head paining him, started home, and with him went Alexan-der Pulpus, Arthur Orr, and Fee Wilson. All started home by the road which went by Randle’s house, but Wilson stopped, before the point where the road passed Randle’s house, at another house to get a drink of water. Orr and Alexander Pulpus, going in advance of Austin, had passed George Anderson when Austin came up.

A witness was permitted to state, over objection, that, in answer to his question to Fee Wilson whether they were going to report Anderson for the blow with the spade, he said, “No,” they were “going to get him.” This was in the absence of defendant or any of the party, and this was error.

There was nothing to show that the presence of the party was other than accidental. On the ap-pearance at Joseph Randle’s house, when the killing occurred, the state offered evidence, somewhat conflicting, to the effect that Austin went up to Anderson and asked him if he was done with the row, to which Anderson answered, “Yes,” and that Austin then threw a club stick at him twice, and that then Anderson threw a frow at Austin, when Austin shot him twice, first in the knee, and then in the back. Another witness for the state testifies that Austin first threw a stick, and next a brick, at Anderson, and then Anderson threw a frow at him, and that both parties were standing up when the shooting was done.

The testimony for the defense is to the effect that Austin, as he passed Anderson, who was working at a crib with the frow, was hailed by Anderson, who said he wanted to settle that little “ruckus,” when Austin said he thought it was settled, to which Anderson replied, “I meant to kill you, and, God damn you, I am going to kill you,” when defendant turned to go away, and Anderson threw the frow, striking him in the back and knocking him down, and that, while he was down, An-derson advanced on him with an axe raised to strike, and Austin, while down, and while Anderson was so advancing, shot him twice. There seems no doubt that Austin was struck in the back with the frow, and there is no doubt either that both the pistol balls ranged upwards, one striking just above the kneecap and going up into the groin, and the other striking at the base of the spinal vertebrae and going up inside of the body.

There is conflict in the evidence as to the location of the axe and frow and the hats of the men immediately after the killing. It is perfectly plain that the wounds from the pistol could not have been inflicted by the man who used the pistol if he had been standing up.

Under this presentation of facts, the court gave the following instruction at the instance of the state: “The court instructs the jury that, if they believe from the evidence in this case, beyond a rea-sonable doubt, that Austin Pulpus was hunting George Anderson to kill him, armed with a deadly weapon provided for that purpose, and that, when he found Anderson, he provoked a difficulty with Anderson, or was the aggressor in the difficulty in which he killed Anderson, then he is guilty of murder, even though he killed Anderson in self-defense, and the jury should so find.” We think, on the evidence in this record, the granting of this instruction was fatal error. Lofton v. State, 79 Miss. 723, 31 So. 420, and the other citations in the briefs for appellant. It must be quite an overwhelming case for the state on the facts to keep this instruction from being reversible error. It wholly excludes any consideration of the doctrine of locus penitentiae, even where, as here, there is evidence of an abandonment of the conflict. It is not strictly correct as written. One may provide himself with a deadly weapon and hunt another, with design to kill him with it, and provoke and be the aggressor in the encounter in which he kills the other, and still, in the progress of the difficulty should not be denied the right of self-defense, if the killing be not pursuant to the original purpose to kill. If he abandons the conflict, and is fleeing from it in good faith, and not for vantage, he may defend him-self from threatened death or great bodily harm. Lofton v. State, 79 Miss. 723, 31 So. 420.

We think it was error to permit the state to show that Arthur Orr, who was jointly indicted with appellant, and was under bond for appearance, was out of the state, and not present pursuant to his bond. People v. Stanley, 47 Cal. 113, 17 Am. Rep., 401, and the other citations of counsel’s brief.

Reversed and remanded.

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