62 Miss. 289 | Miss. | 1884
delivered the opinion of the court.
It is not apparent that there was any abuse of the discretion vested in the court in refusing to grant the application for a change of venue. Weeks v. The State, 31 Miss. 490; Cavenaugh v. The State, 56 Miss. 300.
It is earnestly insisted by counsel for the appellant that the court below erred in the instructions given to the jury for the State, and the third and ninth instructions for the State are particularly designated as being erroneous. The third instruction for the State is, “ Every killing with a deadly weapon is presumed to be malicious and amounts to murder until the contrary appears from circumstances of alleviation, excuse, or justification, and it is incumbent on the defendant to make out such circumstances to the satisfaction of the jury unless they arise out of the evidence in the case, and if the jury believe from the evidence in the case that defendant cut and killed deceased with a knife, and that said knife was a deadly weapon, and that at the time defendant so cut and killed deceased he had no reasonable ground to apprehend, from some overt act of deceased, that deceased designed immediately to kill him or do him some great bodily harm, in such case defendant is guilty of murder and the jury should so find.”
The objection made to this instruction is that it required the defendant, in a certain contingency, to overcome the presumptions which arise from killing with a deadly weapon, to the satisfaction of the jury, and denied him the benefit of the humane and merciful
The ninth instruction for the State is, that “ if the jury believe from the evidence that the defendant with a knife, and that such knife was a deadly weapon, cut and stabbed the deceased and thereby killed him, then the use of such deadly weapon is primd fade evidence of malice and an intention to kill and murder, and before this presumption is overcome it must be shown by the evidence in the case to the satisfaction of the jury that at the time of the use of such deadly weapon the defendant was in present and immediate danger, real or apparent, of losing his life or suffering some great bodily harm from the deceased, and such danger must have been urgent, present, and immediate, at the very time of the killing.”
The same objection is made to this instruction that was made to the third given for the State, and it contains to some extent the same objectionable features. A similar instruction in Guice v. The State, 60 Miss. 714, was, upon the strong facts in that case and in connection with other instructions not referred to in the opinion of the court, said to be correct; but as an independent proposition disconnected from other instructions in the case it could not have been approved. It ié a dangerous error in any criminal trial to instruct the jury that it is incumbent on the accused to prove anything necessary to his defense, to the satisfaction of the jury, or that any presumption against him must be overcome by him, on the evidencé in the case, to the satisfaction of the jury. Such instructions tend to impose upon the accused a greater burden than is sanctioned by law, and to authorize conviction without reference to any reasonable doubt that may arise from
The instructions in question are not without fault on the points referred to, but the law in regard to reasonable doubt and the burden of proof and the measure of proof required of the State, and every other phase of the defense, was so liberally and fully and clearly expounded in the charges given for the appellant that it cannot be conceived how the jury could have been misled by the instructions. Construed together, it clearly appears that the law of the case was properly announced by the instructions, and the judgment should not be disturbed on account of the instructions when such conclusion is reached. Hawthorne v. The State, 58 Miss. 778, and authorities therein cited.
There is nothing in the other errors assigned or- in the record which requires or would warrant us in interfering with the result of the trial in the lower court.
Affirmed.
