40 So. 8 | Miss. | 1905
delivered the opinion of the court.
Reversal is ashed because, on the request of the accused, the court below refused to compel the state “to instruct the jury that, if they pronounced the defendant guilty as charged, the death penalty would follow unless they fixed the punishment at imprisonment in the penitentiary.” This assignment of error cannot prevail, because it appears below only as a ground in the motion for a new trial and without evidence of such refusal. The assignment is futile, also, because the instruction was in fact given at the instance of the accused, and there was no need to give it twice. In Walton v. State, 57 Miss., 533, reversal was ordered because the court below refused such an instruction asked for by defendant. Spain v. State, 59 Miss., 19, was reversed because the charge allowed imprisonment on conviction of murder “if the proof warrants,” Judge Campbell holding for the court that the power was given the jury by the law and “without any condition.” In the case at bar the charge was given properly, according to the law, at defendant’s instance, and that is enough. We do not decide that, in any instance, the court should feel required to compel the state to give such a charge, nor do we decide the contrary. If, however, the state undertakes to touch the penalty in an instruction, very clearly it must give the defendant the full benefit of the law as to the discretion of the jury to imprison for life.
In reference to the competency of jurors, there is no proper comparison to be made 'between this case and that of Klyce v. State, 79 Miss., 652 (31 South. Rep., 339), where the juror had talked to the witnesses, believed what they said, and had formed
The confessions were clearly admissible, though they were hardly needed for conviction.
Affirmed.
