The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1882-03-01
LEVI ALDRIDGE
VS.. :
The STATE. ]

| Appeal from the Circuit Court of Tippal
county, Hon. Jno. W. c. Watson, Judge
Appellant was indicted for an assault will
| inteut murder one Thomas, and cOavicte.
OF an assault and bat cry. The verdict is sap
! ported by the testimony of Thomas alone, al
the other witnesses making out case of self
Iefenee. The iii fficuty occurred at a sOclM
gathering. Appellant while engaged in til.
| house in some ianocent diversion was called
out by Thomas in angry manner and ac-
eused of having circulated lies to the detri-
! tnent of the latter. Angry words cnsued and
| presently Thomas, according 10 his own a1mis.
sion. struck appellant. The blow was repeated
and at last appellant cut Thomas with pork et
knife, which he drew from his pocket Thorn
states that he himself had no weapon, bui
other witnesses testify that he not ouly had
a knife, but was in the act Of striking appel
liant with it when he himself was stabbed By
the 9Th instruction for the State the jury were
told IF defendant entered INFO mutual fght
with Thomas, having upon his person any
dangerous weapon and that such weapon was
not exposed to view, so as 10 put Thomas upon
his guard, and that in said fight he struck
Thomas with So knife intending to kill or
injure him, the jury SHOULD find him guilty
as charged, or guilty of an assault and battery
or of an assault only, as the facts may war
rant
1t is urged by the Attorney General thet al
though the instruction be wrong it wouId not
acquitted Of the charge of assault with intent
to murder. and convicted only of assault and
battery.
By his 10Th charge the defendant sought, by
recital OF The facts in evidence from his
standpoint. to apply the definition of mutual
combat to the case before The jury.
This last charge the Court refused to give
on the ground that the general principles of
the law were already sufficiently and correetlY
embraced IN a former charge the sau,e sub
Ti,Nz ~,
10 the doctrine of what constitutes reasonable
apprehension of great bodily harm.
Thos spight for appellant
I. c. catchings, Contra
CHALMERS c. J.,
Held
l. A man who is stricken with the fist may
enter willingly into the combat, supposing il
is to be prosecuted without deadly weapons,
hut If in its progress his adversary resorts to
such weapons he may lawfully do the same If
1t be necessary to protect his own life, and the
fact that he had such gearon concealed on his
person will not deprive him of this right I'M
less the jury believe from the evidence that he
vent into the fight Intending from the first to
resort to his weapon if il became necessary
thereby to overcome his adversary. The other
charges for the State contained this limitation
Il An original intention of resorting % The
weapon ia case O. need, bur the one under con-
sideration does not.
?. The fifth charge is erroneous, therefore in
double aspect both as laying down an inn
proper rule as to the higher offence and as
improperly applying this rule to the lower.
1t was well calculated to nslead the jury in
tie consideration of both aspects of the crime
charged, because while it had no near conuee-
iion with the inferior off nee it was apt to BE-
misconstrued by the jury into declaration bg
the court that the use Of the knife was dispro
portionate to the attack made upon the defen-
dant.
g. We think that a party has right to a
statement both OF the Law controlling his case
and of a specific application OF the principle
TO the facts in evidence.
A. 1t would undoubtedly be better 10 en-
brace both propositions in one charge, because
more likely IN tais form to guide 10 proper
application OF the law TO the facts by the Jury
and the court would perhaps be justified Ia IN
sisting that this should be done, but if counsel
have embodied the legal principle iu one
charge and he concrete application Of it IN
another, the court is not thereby authorized in
wholly rejecting either.
3. The twelfth charge announces that il is
not unlawful to carry pocket-knite and thar
no invidious deductions are 10 be drawn there
from in the presentease, unless the Jury should
believe from the evidence that defendant had /
The knife for the purpose efusing it in some con-
templated difficulty and If they further believe
hat it was onfy used when be was driven to |
it by the aggressions of Thomas in his own
necessary self-aefenee from q murderous as
saut. then they should fud him not guilty.
We see no reason why this charge should not /
have been given, aud ii was certainly apolica- /
bic TO the facts of the case deposed az several |
Witnesses. Repsrsed aad new trial granted /
To be reported.l