83 So. 738 | Miss. | 1920
delivered the opinion of the court.
The appellant was indicted in a justice of the peace court for unlawfully selling vinous, malt, spirituous, alcoholic, and intoxicating liquors. The date of the offense was charged in the affidavit to be the 8th day of February, 1919. There was a conviction in the justice court and an appeal taken to the circuit court, where appellant was again tried and convicted and sentenced to pay a fine of one hundred dollars and serve sixty days in jail, fifty dollars of the fine to be suspended during-good behavior. During the first part of the trial the state adhered to one sale, but during the course of. the trial introduced evidence of other sales. - There was only one witness to testify to.the sale, and this -witness got confused as to t]ie dates, and testified to two different dates. The district attorney contented himself with one charge, which read:
*553 “The court charges the jury for the state thát if you believe from the evidence beyond a reasonable' doubt that the defendant sold Bud Estes liquor as charged in the affidavit, then you will find him guilty as charged.”
The defendant asked two charges, reading as follows:
“The court charges the jury for the defendant, that the state must prove to the satisfaction of the jury beyond a reasonable doubt that the defendant sold the liquor as alleged in the affidavit and unless so proven it is your duty to find defendant not guilty.”
“The court charges the jury for the defendant that the state of Mississippi must prove the guilt of the defendant beyond every reasonable doubt, and, unless the state proves every material allegation in the affidavit, it is your duty to find the defendant not guilty.”
The alleged sale to Estes was'-proved by one witness, and the defendant denied making such sale, ' and the case was submitted on the above instructions and argued to the jury by attorneys on each side. At the close of the argument in this case and before the jury retired, the court, of its own motion, wrote out a charge for the state and handed it to the district attorney, charging the jury that—
“If you believe from the evidence beyond a reasonable doubt that the defendant sold the witness Estes whiskey at any time within two years before the date of the making of the affidavit, then it was the duty of the jury to find him guilty as charged.”
The court states in the record: “The reason the court did this of its own motion was because counsel for the defendant in his argument argued to the jury that under the instructions of the court the sale had to be made to this witness on the 8th day of February, the date charged in the affidavit, and that, although the jury might believe the sale took place at any other time than that, the jury would be compelled to turn the defendant loose. The jury having retired before this*554 charge was given to he read to them, they were brought back and the charge read to them, and counsel for the defendant was then given an opportunity to reargue the case if they desired.”
This was objected to and exception taken. On motion for a new trial two jurors were introduced with reference to the effect the giving of this instruction had upon them with reference to the verdict. The first juror in answer to a question as to the court’s giving the instruction and what effect it had on the verdict said :
“A. As well as I remember, we were called back. Q. What was then done? A. That changed my mind on it some.
‘ ‘ Q, Without that instruction of the court granted of its own motion, would you have been for conviction? A. I don’t think I would. One swore he did, and one swore he didn’t. .
“By the Court: Q. Do you mean to say you went out and convicted this man without any evidence because the court gave you an instruction as to what the law was? A. No, sir; because it was mixed, two cases.”
Another juror was asked:
“Q. Do you remember whether or not after this case had been submitted to the jury and argued by counsel for both the state and the defendant that the court of its own motion and without request granted an instruction to the jury? A. Yes, sir.
“Q. What effect, if any, did that instruction have on you with reference to returning your verdict in this case? A. The instruction he gave, I was unsettled on it because they had come up and disputed on the sale of the whiskey, I didn’t know which one of them to stand on, whether either one of them or not, and after he gave that charge, deciding any time in two years, I agreed for the verdict to be guilty.
*555 “Q. But for that charge would yon have been for a verdict of guilty? A. No, sir; I think not.”
This evidence was introduced without objection, and we are not called to pass upon its competency, but it shows what might reasonably he presumed without evidence, that the instruction had an influence upon the verdict of the jury unfavorable to the defendant. The giving of the instruction above set out was erroneous for two reasons: First, because section 793, Code of 1906 (section 577, Hemingway’s Code), as construed by the previous decisions of this court, forbids the judge giving an instruction not requested by either party. James v. State, 106 Miss. 353, 63 So. 669; Johnson v. State, 106 Miss. 94, 63 So. 338; Dixon v. State, 106 Miss. 697, 64 So. 468; Pringle v. State, 108 Miss. 802, 67 So. 455; Watkins v. State, 60 Miss. 323; Boykin v. State, 86 Miss. 481, 38 So. 725. In the second place, the practice of giving instructions after the argument has begun has been condemned by this court in several cases. Montgomery v. State, 85 Miss. 330, 37 So. 835; King v. State, 83 So. 164; Boykin v. State, 86 Miss. 481, 38 So. 725.
For the errors indicated, the judgment is reversed, and the case remanded.
Reversed and remanded.
