Bishop v. StateBishop v. State
- Reporters:
- Before:
- Arnold
delivered the opinion of the court.
It is nоt apparent that there was any abuse of the discretion vested in the cоurt 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 insistеd 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 dеsignated as being erroneous. The third instruction for the State is, “ Every killing with a deadly weaрon is presumed to be malicious and amounts to murder until the contrary appеars 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 evidеnce in the case that defendant cut and killed deceased with a knife, and thаt said knife was a deadly weapon, and that at the time defendant so cut and killеd deceased he had no reasonable ground to apprehend, from sоme overt act of deceased, that deceased designed immediatеly 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 wеapon, to the satisfaction of the jury, and denied him the benefit of the humane and merciful *295rule of law which entitled him to acquittal if, upon the whole evidencе, there was a reasonable doubt of his guilt. If the first part of the instruction stood alone” and without qualification, it would be obnoxious to the objection-made, but it is interpreted by the latter part of the instruction and the application therein made of the principles enunciated, to supposed, facts in such manner, thаt it cannot be said that the instruction, as a whole, is erroneous when considerеd ifi connection with the instructions for the defense. ’ ’
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 thе use of such deadly weapon is primd fade evidence of malice and an intention tо 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 defеndant was in present and immediate danger, real or apparent, of losing his lifе 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 objectiоn is made to this instruction that was made to the third given for the State, and it contains to sоme extent the same objectionable features. A similar instruction in Guice v. The State, 60 Miss. 714, was, upon thе strong facts in that case and in connection with other instructions not referred tо 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 hаve 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, оr that any presumption against him must be overcome by him, on the evidencé in the cаse, to the satisfaction of the jury. Such instructions tend to impose upon the accused a greater burden thаn is sanctioned by law, and to authorize conviction without reference to аny reasonable doubt that may arise from *296the evidence. Pollard v. The State, 53 Miss. 410; Cunningham v. The State, 56 Miss. 269; Hawthorne v. The State, 58 Miss. 778; Smith v. The State, 58 Miss. 867; McKenna v. The State, 61 Miss. 589; Ingram v. The State, ante; Dawson v. The State, ante.
The instructions in question are not without fault оn 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 оther 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 aрpears 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.