The clarion. [volume] (Jackson, Miss.) 1883-1888, 1885-06-17
SUPREME COURT CASES.
Reported for The Clarion, BY n. n. Parker,
Atterney-as-L Law, Jackson. Miss.
APRIL Tern, 1855.
JOHN MoRIARTY

AfD<fi ESTm-ISSS.
JOIN MoRIAETY
VS..
TIE STATE
From the Circuit Court of Yazoo coun-
ty. T. j. Wharton, Judge.
Homicide. Brerify Of instructions. In
competency Of juror acaired By accepting
peTenptory challenge. EUide1ace |
IF prerious threats By deceased, etc. Onert |
act.
ARNOLD, J.:
John Moriarty was convicted of the |
murder of ]. w. Ricketts,, and sentenced |
to imprisonment for life in the peniten-
tiary. The killing occurred in the black |
smith shop of one Pepper. Pepper, Meek |
and McGraw were in the shop at the time
The deceased and Moriarty had long been
unfriendly and were on hostile terms at
the time. Moriarty went to the shop
with a double-barrelled shot gun, to
have some work done on it, as he alleges
While going to the shop, he saw and
recognized the horse of Ricketts, hitched
near the shop. After he entered the
shop, he was informed that Ricketts, was
out in the rear. He sat down in chair
with his gun across his lap, facing the
anvil where Pepper was at work, and
about eight feet from the anvil. In
short time, Ricketts, entered the shop
and engaged in conversation with Pep
per. There was some alteration be-
tween Ricketts, and Pepper about a bust
ness matter between them. A few min
utes afterwards, Ricketts, went to the
door of the shop. He leaned against
the door facing, and continued TO talk
to Pepper, with some bitterness and irri-
tatlon, on the same subject. 1t is alleged
by Morlarty, and he is supported in the
statement by McGraw, that Ricketts,,
while leaning against the door facing,
suddenly and quickly threw his right
hand behind him, under his coat to his
hip pocket. Upon this, Moriarty in
stantly fred with hisshot gun. Ricketts,
started off in a run, and when he had
gone twenty or twenty-five feet, Moriarty
fired again with his gun, drew pistol,
and advanced in the direction of Rick
etts, who had by this time fallen. Rick
etts died in about ten minutes. No
weapon was found about his body. No
words passed between him and Moriarty
IN the shop, and Moriarty was in no
manner connected with the transaction
about which Ricketts, and Pepper had
been talking. Moriarty testified that
Tickets looked at him furtively several
| times after he came into the shop.
In organizing the jury for the trial of
the cause, Powell, one of the special
venIre, on being examined by the court,
stated that he had formed an opinion
as to the guilt or innocence of the pris-
oner, from talking to some of the wit
nesses, but that this opinion or impress
| ION would not interfere with his irving
the case impartialIy. The court adiudg
| ed the Juror competent, and he was &C
cepted by the State, and rendered to the
defendant. The defendant excepted tc
the ruling of the court, and the court
thereupon stated that the defendant
might examine the juror further and al
any length, and if he was found to be
incompetent, he would be rejected. The
! defendant declined to examine the Juror
further, and the court then stated, that
to avoid controversy about the matter
the court would change its ruling, and
hold the juror incompetent, if the &C
| cused preferred that course. The de
PENDANT stood on his exception, and re
fused to indicate any preference in the
matter, and challenged the Juror per
| emptorily. The State then rendered the
defendant one more peremptory chal
ienge in addition TO the number he wa.
allowed by law, which the defendan
accepted and exercised before the pane
was completed.
Pepper, witness for the State
on direct examination, stated that ht
had observed the deceased very close
ly after the first shot, and while ht
was fleeing, before the second shot wa
fired. On cross examination by the de
PENDANT, the witness was asked why h,
observed deceased so closely, and he wa
proceeding to answer, that believing de
ceased to be dangerous man, and tina
he, (deceased), always went armed, "a
which point, the witness was interrup
ted, and the answer was objected to b
the State. The objection was sustained
and the witness was not allowed to an
swer as to his belief or conjectures.
The defendant offered to prove b.
: numerous witnesses, that the decease
had made threats on various occasions
= and recently before the killing, to tax
the life of the defendant, and that thes
threats had been communicated to him
= that the deceased had attempted to EN-
ploy others to take his life, that tn
deceased was dangerous, violent an,
; vindictive man, that he was in tn
habit of going armed and carrying con
cealed weapons, that he was an exper
with pistol, and that there had bee
previous difficulties between the defeu
dant and the deceased. All of this evi
dence was objected to by the State, an,
the objection was sustained.
t Exception was taken, and error i
/ assigned, on the instructions given t
the jury for the State.
On the facts of record, we find II
error in the instructions for the State
, and we commend the discretion an,
just conception of official duty, whicl
combined all the law necessary for tn
= prosecution in four brief and simpl
instructions.
If it be conceded that Powell was no
a competent juror, under Code 2 307l
appellant has no cause of complaint Of
this. account, after he accepted and en-
joyed the bounty of an additional per
emptory challenge rendered to him b
the State.
The objection to the testimony O
Pepper was well taken. If the charac
ter of the deceased as dangerous mai
had been material, it could have BEEF
proven only by evidence of general rep
utatiOn. For reasons equally obvious
the belief of the witness that the de
ceased always went armed was also in
admissible. 1t was proper to exclud
the testimony as to antecedent threats
previous difficulties, the character o
the deceased, etc. Such testimony wa
inadmissible unless it was shown that
at the time of the killing, somethin.
was being done by the deceased which
interpreted by the light of such test
monv, afforded the accused REASONABLE,
ground to apprehend immediate danger
Wesley q. The State, 81 Miss, and othe
cases cited. The action of the appel
liant, alter he fired the first shot, canno
be recOnciled with any rule of law upor
which such evidence is rendered admis
sible. At the second shot, his unarmeC
and unresisting victim was fleeing from
him, and had gone twenty or twenty-fiv,
feet. But, without reference to thi,
consideration, we think that the exclu
ded testimony was incompetent, in view
of the circumstances which attende,
the firing of the first shot If the de
ceased threw his hand to his hip pocket
as alleged, and the act imported signif
canoe to any one, it was to Pepper, will
whom he was engaged in somewha
angry conversation, and not to the ap
pellant, to whom he had not spoken
The appellant was armed with gun anc
a pistol, and his position, with reference
to the deceased, was such as to enabl,
him to meet and successfully resist any
hostile movement. Assuming that the
facts sought to be proved existed and
were known, it may be confidently
affirmed that a reasonable man, so stu