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YALE et al. v. MCLAURIN et al.

(Supreme Court of Mississippi. April 15, 1889.)

EXEMPTIONS-LIFE INSURANCE POLICY.

Code Miss. § 1261, providing that the amount of any life insurance policy, not exceeding $10,000 upon any one life, shall inure to the party named as the beneficiary thereof, freed from all liability for the debts of the person paying the premiums thereon, has no application where the person named as beneficiary has paid the premiums.

Appeal from chancery court, Yazoo county: WARREN COWAN, Chancellor. The appellee Viola B. McLaurin was engaged in the mercantile business, which was conducted by her husband. She took out a policy of insurance on her husband's life, for her own benefit, upon which she paid the premiums. Her husband died, and she transferred the policy to one Bunch. The appellants, creditors of Viola B. McLaurin, filed this bill, attacking the transfer of said policy as collusive and fraudulent. Appellee demurred to the bill, on the ground that the policy was exempt by section 1261 of the Code. The demurrer was sustained, and the bill dismissed, from which appellant creditors appealed.

D. R. Barnett, for appellants.

Williams & Williams, for appellees.

COOPER, J. Appellee took out a policy of insurance upon the life of her husband for the sum of $2,000, upon which she paid the premiums. The husband has died, and appellants, creditors of appellee, seek to subject the proceeds of the policy to the payment of their debts. This right is resisted by appellee, on the ground that the proceeds are exempt from liability under the provisions of section 1261 of the Code, which is as follows: "The amount of any life insurance policy, not exceeding ten thousand dollars, upon any one life, shall inure to the party or parties named as the beneficiaries thereof, freed from all liability for the debts of the person paying the premiums thereon." The manifest purpose and end of the statute is to secure to the beneficiary of a life-policy the proceeds thereof, freed from liability for the debts of another by whom the premiums have been paid. There is nothing indicating that the proceeds of such policy in the hands of the beneficiary shall be held or enjoyed by him in any other manner than other property may be held, or freed from any liability to which any other property may be subjected. The exemption is not to the beneficiary as against his creditors, because he has paid the premiums. The statute forbids the proceeds, which are his by the contract of insurance, from being subjected to the debts of him who has paid the consideration on which the contract of insurance rests, because of such payments having been made. Where the beneficiary has paid the premiums, and the proceeds of the insurance are sought to be subjected to his debts, the statute has no application.

Decree reversed, demurrer overruled, and cause remanded, with leave to defendants to answer within 30 days after the mandate shall have been filed in the court below.

LUM et al. v. STATE.

(Supreme Court of Mississippi. April 1, 1889.)

CRIMINAL LAW-APPEAL-DISMISSAL FOR WANT OF APPEAL-BOND.

Where, after conviction in a criminal case, defendants appeal, but give no appealbond, or file no affidavit of their inability to give such bond or to deposit money sufficient to cover the probable costs, as provided by Code Miss. § 2335, when a stay of judgment is desired, though an appearance bond is given, the appeal should be dismissed.

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Appeal from circuit court, Lincoln county; J. B. CHRISMAN, Judge.

In this case, after conviction, the prisoners took an appeal returnable to the third Monday in February, 1888, and gave an appearance bond, but no appeal-bond. The attorney general moved to dismiss the appeal for want of prosecution.

T. M. Miller, Atty. Gen., for the State.

ARNOLD, C. J. There is no appeal-bond, or affidavit of inability to give such bond, or to make deposit of a sufficient sum of money to cover the estimated amount of costs accrued and likely to accrue in the cause, as required by section 2335 of the Code, and the judgment of the lower court has been superseded, and the prisoners discharged on bail, without authority of law. Such bond, affidavit, or deposit is required in order to stay the judgment from which an appeal is taken to this court, in all criminal cases; and taking bail and discharging the prisoner after conviction on such appeal is not authorized by section 2339 or any other provision of the Code, until after section 2335 of the Code has been complied with.

The appeal not having been taken and perfected according to law, and there having been failure to prosecute the same, the motion to dismiss for the want of prosecution is sustained.

JACKSON v. STATE.1

(Supreme Court of Mississippi. December 10, 1888.)

1. JUSTIFIABLE HOMICIDE-ATTEMPT TO ARREST FELON.

Upon an indictment for murder, the defendant justifying as an officer necessarily taking life to prevent the escape of a felon for whom he had a warrant of arrest, it is an invasion of the province of the jury to charge that if they believe that defendant, though having a warrant, lay in wait for deceased, and killed him merely because he refused to stop when told that defendant had a warrant for him, and that deceased made no actual resistance to his arrest, but only declined to stop, then the killing was wanton, and constituted murder, as the question should be submitted to the jury whether there was necessity to kill deceased to prevent his arrest, with no reference to facts which in the opinion of the court might show the absence of such necessity.

2. SAME.

Under Code Miss. § 2878, making homicide justifiable when necessarily committed in arresting a felon fleeing from justice, which is declaratory of the common law, it is error to refuse to charge in such case that if defendant in good faith was attempting to arrest deceased on a charge of felony, and that, if the killing was probably necessary to prevent deceased from escaping, it was justifiable, and to charge that homicide is not justifiable merely to prevent the escape of a felon.

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Evidence that when the warrant was given to defendant and read and explained to him he was told to arrest deceased, and that nothing was then said about killing him, is inadmissible on behalf of defendant.

4. SAME-ADMISSIONS.

A statement, voluntarily made by such defendant, relative to the circumstances of the homicide, to a newspaper reporter, is admissible when the latter testifies that he took the statement down accurately, and read it to defendant, who agreed to its correctness, though the witness does not remember, independently of the article, what defendant said.

Appeal from circuit court, Warren county; RALPH NORTH, Judge.

Appellant, Andrew Jackson, and one Dr. Clay were jointly indicted for the murder of one Tingstrom. A severance was demanded by Clay, and Jackson was put on trial alone. The evidence for the state tended to show that Tingstrom, the deceased, was quietly proceeding to his home, which was in a fishboat tied to the banks of the Mississippi river, for the purpose of going down the river with his family to Natchez; that defendant Jackson suddenly appeared behind deceased, and without any warning shot him in the back, from

1Publication delayed through failure to receive copy.

which he died. The evidence for the defendant tended to show that defendant had been previously appointed a special constable, and given a warrant for the arrest of the deceased, who was charged with grand larceny; that defendant saw deceased approaching his home (the fish-boat) with a gun and a bag in his hands, as if to leave, and thereupon defendant went towards deceased, and demanded his surrender; that deceased quickened his pace, and then defendant ran nearer to him, and announced that he had a warrant for his arrest, and ordered him to stop; that deceased thereupon, having a gun, partly turned towards defendant, when defendant shot him in the side.

the files of the Herald.

On the trial one McCaleb testified as follows: "Am news reporter for the Herald. Told him if he (defendant) wanted to make a statement I would publish it. He made it voluntarily. I have the statement here, copied from When I wrote, I read it over to him, and he said it was correct. I do not remember what he said independent of this article, but I know I took it down at the time, in substance, as he stated it, and read it over to him, and he said it was correct." The statement referred to by McCaleb was then offered to the jury, and objected to by the defendant, which objection was overruled.

The defendant offered to show by one Matt Clay, Jr., that the witness was present when the warrant was given to defendant for the arrest of the deceased; that said warrant was read and explained to the defendant, and he was told to arrest the deceased; and that nothing was said about killing the deceased; which testimony the court, on motion of the state, excluded from the jury.

The instructions given for the state necessary to be considered are as follows:

"(1) The court instructs the jury that if they are satisfied from the evidence in the cause that the defendant, although having a warrant for the arrest of the deceased, that he went upon the bank of the river having reason to expect the deceased would come by said place, and there the defendant laid in wait for the deceased; and if they are further satisfied from the evidence in the cause that the deceased came along said place where the defendant was in wait as aforesaid, and that he (the defendant) then and there shot and killed the deceased merely because the deceased did not stop when the defendant told him to halt, he had a warrant for his arrest,-then such killing was unnecessary, and wanton, and would be murder in the meaning of the law, and the jury should so find."

The second instruction is of similar import as the first, including the additional words, "if deceased made no actual resistance to his arrest, but merely declined to stop."

The third instruction is similar, including the words, if defendant no personal danger to his life or limb, either real or apparent."

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"(4) The court instructs the jury that no killing of a human being is excusable or justifiable by an officer or other person having a warrant for the apprehension of a party charged with felony merely because the party killed is fleeing from arrest.

"(5) The court instructs the jury that no killing of a human being by a party having a warrant for the arrest of the person killed would be excusable or justifiable even if the party who is killed is resisting arrest, if the party killed could be apparently arrested by less violent means.

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The instructions refused the defendant, and referred to in the opinion of the court, are as follows:

"(15) Should the jury believe from the evidence that the killing, at the time it was done, was probably necessary in order to prevent the escape of the deceased, then they should acquit the defendant.

"(16) Should the jury believe from the evidence that the deceased had been guilty of grand larceny, as defined in these instructions, and that a warrant

had been issued for his arrest, and placed in the hands of the defendant for execution; that he started out in good faith to execute it, and that he tried to execute it without taking deceased's life; that deceased was trying to escape, and that probably he would have escaped had he not been slain,—then the jury should find the defendant not guilty."

The trial resulted in the conviction of defendant of murder, from which he appealed.

McCabe & Anderson, for appellant. T. M. Miller, Atty. Gen., for the State.

CAMPBELL, J. The testimony of the witness McCaleb was properly admitted. As we understand the record, he testified that his report of the interview with the prisoner, as published, was an accurate statement of what occurred between him and the prisoner, and he adopted it as his testimony, but was not willing to affirm that it was verbally accurate, or that it contained all that the prisoner said. It accords with both English and American authorities in such case to admit the testimony. See 15 Amer. Dec. 194, for an intelligent presentation of the true rule on this subject.

No error was committed in excluding the testimony of Matt Clay, Jr. By the common law it is lawful to kill a flying felon, where he cannot otherwise be taken, and the necessity for such killing is a fact for the jury to determine. "If the warrant be for felony, flight is tantamount to resistance, and the flying felon may be justifiably killed, if he cannot be otherwise secured," was the utterance of a judge in Rex v. Finnerty, 1 Craw. & D. 167. It is required that the officer shall act with caution and prudence, and shall not precipitately resort to fire-arms as a means of making an arrest.

Our statute (section 2878 of the Code) makes homicide justifiable "when necessarily committed in arresting any felon fleeing from justice," and is merely declaratory of the common law on this subject. The officer who kills one for whom he has a warrant for felony must satisfy the jury trying him for the homicide that he tried in good faith, and with reasonable prudence and caution, to make the arrest, and was unable, because of the flight of the person, to secure him; and that he resorted to the severe means employed when other proper means had failed, and when, as determined by the state of things as between him and the fleeing felon, the arrest could not be made without a resort to the means employed. The jury is to judge of the necessity to kill, claimed by the officer as a justification of the killing, and the fact should be determined by a consideration of all the circumstances attending the officer and the deceased at the time, and a reasonable doubt whether the killing was necessary or not should secure the acquittal of the officer.

Tried by these views, the jury was wrongly instructed. The first instruction for the state is an invasion of the province of the jury, because it directs a conviction if the jury believes certain things stated in it, and does not have reference to the circumstances attending the parties as shown in evidence which the jury but for the instruction might have considered as justifying the killing. The alleged necessity for the killing, being a fact for the jury to determine, should be left to the jury without any opinion from the court as to the influence of any given facts or their insufficiency to establish a particular conclusion. The same objection applies to the second and third instructions for the state.

The fourth instruction is not correct as applied to this case. The accused claimed to have killed the deceased under circumstances which justified it, because of necessity, and the jury should have been allowed to pass on that question of fact.

The fifth instruction for the state is of doubtful meaning and questionable propriety. What idea is contained in the word "apparently" employed in it is not apparent to us.

The court instructed the jury quite fully and liberally for the accused. Most of the instructions refused were properly refused, but the fifteenth and sixteenth asked by him should have been given.

Undoubtedly, if the jury believed that the killing was probably necessary to prevent the escape of the fleeing felon, the accused was entitled to an acquittal, and that is the proposition contained in these instructions. Reversed and remanded for a new trial.

BERNHEIM et al. v. DIBRELL et al.

(Supreme Court of Mississippi. February 11, 1889.)

1. TRIAL-CONDUCT OF TRIAL.

Where, in attachment proceedings, two claimants assert a right to the property attached by purchase from the debtor, it is error to exclude one of the claimants from the court-room while the other is testifying.

2. ATTACHMENT-INTERVENTION-EVIDENCE.

Upon the issue as to whether the transfer of the property attached to the claimants was made by the debtor with fraudulent intent, it was competent for the plaintiff to show that on the day following such transfer the debtor conveyed other property with the fraudulent intent of defeating her creditors.

3. SAME.

It was error to exclude testimony tending to show that the debtor was insolvent at the time of the sale of the goods attached to the claimants, although there was no direct testimony that the claimants knew of such insolvency.

Appeal from circuit court, Chickasaw county; L. E. HOUSTON, Judge. This was an attachment proceeding, sued out by the appellants, who were judgment creditors of one Mrs. Pollard, the defendant in attachment, and the appellees, Dibrell & Hill, were claimants of the property seized under the attachment, as purchasers from Mrs. Pollard. There were two trials. On the first the verdict was in favor of the appellants, which was set aside by the -court on motion; and, on the second trial, there was verdict and judgment in favor of the claimants, Dibrell & Hill, from which Bernheim Bros. & Uri appealed.

Orr, Lacey & Orr, for appellants.

W. T. Houston, for appellees.

COOPER, J. The court properly set aside the first verdict, and awarded a new trial, for on the first trial, at the instance of the plaintiffs, the court excluded from the room Hill, one of the claimants, while Dibrell, the other claimant, was being examined as a witness. Both claimants were parties to the same issue, and it was the right of both to be present during the trial. The rule of court by which witnesses are excluded from hearing the testimony delivered by other witnesses does not apply to parties to the cause, who cannot be denied the privilege of being present to examine their own witnesses, or to cross-examine those of their adversary. Where a party proposes to testify in his own behalf it is within the power of the court to require him to be first sworn, but this is the extent of the power; and since both Hill and Dibrell could not first testify, of necessity one must have been in the court-room while the other was testifying. In French v. Sale, 63 Miss. 386, the extent and limit of the rule were indicated, and we have found no authority going beyond the point there decided.

On the second trial the court erred-First, in rejecting the evidence proposed to be introduced by the plaintiffs to show that at about the same time of the purchase by the claimants of the goods in controversy the defendant in attachment made other transfers of property liable to be taken in execution by her creditors; and, secondly, in excluding from the jury certain evidence which had been permitted to go to the jury tending to show her insolvency. On the trial of the claimants' issue it devolved on the plaintiffs to show

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