| Miss. | Oct 15, 1914
delivered the opinion of the court.
• Appellant was convicted and sentenced to the penitentiary for life for the murder of Sidney Harris. The evidence upon which the verdict of guilty was secured is entirely circumstantial and warranted the verdict.
Appellant complains of two instructions given by the court at the request of the state, which are here copied, viz.:
(a) “The court charges the jury, for the state, that circumstantial evidence is competent and legal in crimi-nal cases; and if it is of such a character and quality to exclude every other reasonable hypothesis, other than that the defendant is guilty, it is entitled to the same consideration as direct evidence. And in this case if the jury believe from th'e evidence beyond a reasonable doubt that the defendant deliberately and intentionally shot' and' killed Sidney Harris, or beat him to death, it matters not that the evidence is circumstantial, or made up from the facts and circumstances, provided the jury believe from the facts and circumstances in evidence pointing to his guilt, if any, that the defendant is shown thereby to be guilty.” ■
*67 (b) “The court charges the jury, for the state, that murder is the unlawful and felonious killing of a human being with malice aforethought, and in this ease, if yon believe from the evidence beyond a reasonable doubt that the defendant unlawfully and feloniously killed Sidney Harris with malice aforethought, then it is your sworn duty to find defendant guilty. The court further charges you that the term ‘malice aforethought’ means design or intention or purpose to effect the death of the person killed.”
. The first' clause of the first instruction is in direct conflict with the second clause. In the first clause the jury are told that they may convict upon circumstantial evidence, if such evidence is of such character and quality as to exclude every other reasonable hypothesis, other than the guilt of defendant, while the last clause, in effect, advises the jury that there is no essential difference in the character and quality of circumstantial and positive evidence, and the jury are authorized to convict upon either, if they believe from either beyond a reasonable doubt that defendant is guilty. This instruction is condemned by all the decisions of this court, as pointed out in Simmons v. State, 65 So. 511" court="Miss." date_filed="1914-03-15" href="https://app.midpage.ai/document/simmons-v-state-7991828?utm_source=webapp" opinion_id="7991828">65 So. 511.
The definition of “malice aforethought” in the last sentence of the second instruction is obviously wrong, since a homicide may be designed and intended, and at the same time entirely justifiable. It is always safer for the representative of the state to follow the beaten path and ask only for such instructions as have been approved by the courts.
Reversed and remanded.