
    Riley v. State.
    May 4, 1953
    No. 38729
    30 Adv. S. 18
    64 So. 2d 572
    
      
      Crawley & Broolcs, for appellant.
    
      J. T. Patterson, Assistant Attorney General, for ap-pellee.
   Kyle, J.

The appellant, Matthew Riley, who was also known as “Jake Riley”, was indicted, tried and convicted in the circuit court of Attala County on a charge of committing an assault and battery upon the person of G-ip Evans, with a deadly weapon, to-wit, a pistol, by unlawfully, willfully, intentionally and feloniously pointing and aiming the pistol at and toward Gip Evans, and while so doing shooting and wounding the said Gip Evans, not in his necessary self defense, and not in the lawful discharge of official duty. The court sentenced the appellant to imprisonment in the state penitentiary for a t$rm of four years, and from that judgment the appellant prosecutes this appeal.

btThe record shows that the shooting occurred while a cMp game was in progress at Cap Stingley’s house about 7;}|50 p. m., March 1,1952. At the time the trouble started Gip i>Evans was seated on his hunkers against the wall only a few feet from the place on the floor where the game Wds ’being played. Bud Allen was shooting the dice mid the appellant, Matthew Riley, was fading him, each betting a nickel. According to Gip Evans’ testimony, the appellant claimed that Gip owed him a nickel. Gip sdid, that he did not owe the appellant a nickel. Gip’s account of what happened then is as follows: “Q. Tell the-¡jury what happened. A. He said I owed him a nickel.;; Q. Who said that? A. Matthew. Q. All right. A.: And I says, ‘No, I don’t owe you any nickel,’ and he sa$s, ‘Yes, you do,’ and I says, ‘All right, if you say I osaé-, you.1 a nickel I will pay you, ’ and I handed him a nickel ;> and I thought that was all there was to it; and kh .’gets up .and I wasn’t paying any attention to him. I fj.gur¡e:d.wé)íwas all through, and I looked up and K. W. had him by the hand, and I says, ‘I better get up’; and thh guh went off, and I started getting up, and everybody, was ispimmbling to get out of there, and I didn’t see the gun no more. I heard a shot and I felt something hit me. lie had shot me, and everybody left, and there wasn’t nobody there but me.”

‘"’iF^v'e .otAfer'iwitnesses testified for the State. All of &leniy except* ly. W. Stingley, gave substantially the same account of the shdótin^1 as'that given; by.Gipipand Sting-ley’s testimony dif|er.edí']£Edmíl]iieite's4imdñ^ of? the other witnesses in onlyia-ifewCdetailSusyThe witnesses;’testified that when the ap^ellaíft‘drew><íhisngun¡ to fire;:the-first time, K. W. Stin^ley grabbed > his; i arm.¡;:andthe: bullet went up through ■the--¡top;»e£>théShbuhie..istIt:waá aththat time that the other iihehihersi'of ¡'the party:-scurried fro'm the room; and whémthe seeond'shht was fired.¡there-were no other witnesses left.imthe.Td'omv ssif}- \$VV'Stingley testh fied that, when the trouble-startedpGip advanced toward the appellant, and the-appellant .told.hinido/stop twice, and that the appellant ’.pulled)- Ms.eguhewhenbddp"kept coming toward him. But- that.part o#’ K. VA’s testimony was contradicted by the festimonytof (the other witnessed.

Gip admitted that hé hdd*t)eéói5drihMhg,: ;ahd; the'testh mony of the other witnesses. showed! that : the"appellant had also been drinking, and that both were “pretty'full;’*’ Gip also admitted that 'hbduid’b' pair1 of’ iron knucks in his pocket. But no witness’ ¡testified that !Gip drew :the knucks from his pocket, Mf‘!thát’he 'ever * attempted <to use them. No witness, o'tfcéN tháÁ IS; :W. 'Stihgley; testified that Gip made any rüdvbhi'éht-towkrd the1’appellant at any time that might hait'e he'én hdnstfued as! a hostile movement. A 11’w '■ -'wv ; 1.. . ■ e wi

After the shooting the ap^eMht'cdrried Gip to Búrhht for medical treatment. The á'ó'ctdr0#ó’uM'fháb the- bullet had entered Gip’s chest nedr the -’heart;-Atid' Gip'’ yi'ás removed later to the yetér'ansu-‘Hb<spitál1;in Jackson, where an operation was peff&rnted:Gip'’remained‘in the Veterans Hospital 87 day^' *<’

The appellant offered no testimony on his own behalf, and he did not testify himself. , , ,

The appellant’s attorneys afrg^potVfi ©PÍifttS; on, tips appeal: (1) That the court s¡hos$4vo&?$eíjgxapitefl1 peremptory instruction requeste^^j0|hg def enfant, -apd (2) that the court erred in refuspig i¡a[gjanf,¡th,ree..,lpjt^fir instructions requested by the defppda^r ...

As to the first point argued by the appellant’s at- _ torneys, we think that the testimony was sufficient to prove the charge alleged in the indictment, and that there was no error in the court’s refusal to grant the peremptory instruction requested by the defendant.

We also think that the other instructions mentioned above were properly refused. The first of these instructions dealt with the element of reasonable doubt. The court had already granted two instructions, which clearly informed the jury that the burden of proof rested upon the State to prove the defendant’s guilt beyond every reasonable doubt. And the instruction which the court refused to grant was properly refused for the reason that the instruction was uncertain in its meaning, and if granted, , would have had a tendency to confuse the jury rather than help the jury in arriving at a proper verdict.

In the second instruction which the court refused to grant, the court was requested to instruct the jury “that if, after hearing all of the evidence in this casé, there is a ‘probability’ that the shooting in this case was an accident and that the defendant had no criminal intent at the time of the shooting to harm the said Grip Evans, then in that event it will be your duty to find the defendant not guilty.” This instruction was likewise properly refused, for the reason that there was no proof in the record to support the theory that the shooting was an accident. The appellant, as we have stated, offered no witness on his own behalf; and the testimony of the State witnesses showed clearly that the shooting was not accidental.

The last instruction which the defendant requested and the court refused to grant presented only the abstract question as to whether the defendant, “at the time •of the actual shooting, from all the evidence produced, was acting as a reasonable man would have been calculated to act under like circumstances.” The instruction does not embody a statement of the law of self defense, or any other theory that would justify the appellant’s action in shooting Grip Evans. There was no proof in the record to show that the defendant at the time he fired the shot that penetrated the body of Gip Evans near the heart was in real or apparent danger of losing his life, or suffering great bodily harm at the hands of Gip Evans, and the instruction was properly refused. Labbous v. State, 195 Miss. 295, 15 So. 2d 687.

We find no error in the record and the judgment of the lower court is affirmed.

Affirmed.

Roberds, P. Jand-Lee, Ethridge and Lotterhos, JJ., concur.  