Beasley v. State

64 Miss. 518 | Miss. | 1886

Campbell, J.,

delivered the opinion of the court.

The fourth instruction for the State is erroneous. It told the jury to convict of murder even if satisfied that the deceased had an instant before shot at and missed the accused, and that the accused fired the fatal shot instantly upon the deceased turning to run after this attempt on his life. It is true the word “ deliberately ” is in the instruction, but it is mockery of one shot at by an assailant to speak of his instantly acting deliberately in shooting at his assailant. Deliberation is not in the nature of things predicable of one in that situation. If fear be absent, passion and a spirit of resistance and resentment would be justly aroused and excited by such circumstance, and instantly killing the assailant would be manslaughter at most. The fact that the person shot at and instantly returning the fire and killing his assailant intended to kill and was deliberate enough to do it would not make him guilty of murder. The instruction is not saved from fatal error by the word “deliberately.” State v. Hill, 4 Dev. & Bat. 491, which contains a lucid exposition of the law on this subject by Judge Gaston, to which we subscribe.

The same error is contained in the fifth instruction for the State.

The twenty-first instruction for the accused correctly informed the jury that he should be convicted of manslaughter and not murder if the evidence made it doubtful “ whether the killing was pursuant to a premeditated design or from sudden heat of passion aroused by defendant being shot at by deceased.” If this could be viewed as a modification of the erroneous instructions for the State it might be held to cure it, but they are antagonistic and irreconcilable, announcing contradictory rules for the guidance of the jury, and leaving it to select between them which it would adopt. But for this error we would affirm the judgment. In view of it we cannot. The accused testified that Starnes shot at him with a rifle and turned to run, and he instantly shot and killed Starnes.

The court by the fourth instruction for the State told the. jury this was murder if the accused shot deliberately. We do not know any case sanctioning any such proposition as applied to such circumstances as this case presents. The action of the court in giving the twenty-first instruction for the defendant suggests that the fourth and fifth for the State received the approval of the learned circuit judge, either by inadvertence or by not attaching to them the meaning which we understand the language to import, for it is inconceivable that both could have been approved, but although the judge had correct views of the law, the harm was done the defendant of authorizing his conviction of murder, at the option of the jury, on a state of facts which the law does not adjudge to be murder. The jury may have accepted as true the defendant’s account of the killing, and, accepting the fourth instruction for the State as the law of the case, found the accused guilty of murder, which in our opinion is not sanctioned by the law. If the State’s theory of the facts is accepted the accused is guilty of murder, but if the killing occurred as he testified, it was not murder certainly. Reversed and remanded for a new trial.