66 So. 982 | Miss. | 1914
delivered the opinion of the court.
Appellant was indicted for an assault and battery with the intent to murder, and the jury returned a verdict finding him guilty of an assault and battery, and he appeals to this court.
We think .there is no merit in any of the assignments ■of error, save one. The court was requested by defendant to instruct the jury as follows:
“The jury are instructed that the defendant at the ■outset of the trial is presumed to be an innocent man. He is not required to prove himself innocent or to put in any evidence at all upon that subject. In-considering iestimony in the case, you must look at the testimony, and view it in the light of that presumption which the law*508 clothes the defendant with that he is innocent, and it is. a presumption that abides with him throughout the trial of the case until the evidence convinces you to the contrary, beyond all reasonable doubt, of his guilt. S
Just here we will say that the defendant requested, very few instructions. This is not a case wherein the instructions requested or given for the defendant rehashes-in varying, terms the law by which the jury should be-guided in their deliberations upon the evidence in the-case.
We think it proper to say that the evidence for the defendant, given by a number, of witnesses, if believed by the jury, or if they entertained a reasonable doubt as to-whether it was true or not, was of such a character as-to justify the defendant in doing what he did, on the-ground that he delivered the blow in self-defense, and. used no more force than was apparently necessary toprotéet himself from great bodily harm. In this state-of the record, the court denied him a valuable right when he refused to grant the instruction above set out. This-instruction has been more than once approved by this-court. Wilkie v. Collins, 48 Miss. 496; Owens v. State, 80 Miss. 499, 32 So. 152; Cook v. State, 85 Miss. 738, 38 So. 110; Blalack v. State, 79 Miss. 517, 31 So. 105.
From the authorities it may be taken that an instruction as to reasonable doubt will not supply the place of an instruction as to presumption of innocence, when the latter is requested. Jones * Blue Book on Evidence, section 12b.
Lord Gillies says in McKinley's Case, 33 How. State Trials:
“I am sorry to see, in this information, that the public prosecutor treats this too lightly. He seems to think that the law entertains no such presumption of innocence. I cannot listen to this. I conceive that this presumption is to be found in every code of law which has reasqm and religion and humanity for a foundation.”
Reversed and remanded.
