79 Miss. 517 | Miss. | 1901
delivered the opinion of the court.
The alleged confession to Horne should not have been admit
We do not think the complaint made of several instructions, that the court inserted “person of ordinary intelligence” for “defendant,” well taken, for the reason that, whilst the modification should not have been made, it did not materially affect the meaning. The idea the court had was right — that the apprehension of death or great bodily harm must be reasonable, in the judgment of a man of ordinary courage, and that the unnecessary fear of an exceptionally timid man is not the proper test. The scale of courage varies from Murat to Aguecheek. It is the apprehension that a man of average courage would entertain that is a reasonable apprehension. The defendant in any particular case judges at his peril, and takes the risk of the jury’s finding that judgment to be reasonable — such an apprehension as a man of average courage would, under the circumstances, have entertained. And the mistake of the court was in supposing that charge No. 2 set up any other standard. It was proper as asked. “Conduct which induced in the defendant a reasonable apprehension” is its language, and this means apprehension reasonable in the judgment of the jury, applying the standard above given.
The court erred in modifying the third and fifth instructions by omitting the proposition that the danger need not be actual, but only apparent, and this was not cured by the first charge given appellant. The court also erred in not giving the fourth charge for appellant as asked. The burden of proof never shifts in a criminal case. And it also erred in refusing the second instruction for appellant.
Reversed and remanded.
