73 Miss. 873 | Miss. | 1896
delivered the opinion of the court.
The first, second, third, fifth, ninth, and twelfth instructions asked by the appellant announced correct propositions of law, as applied to the facts of this case, and should have been given. The fourth, sixth, seventh, tenth, eleventh, and thirteenth instructions asked by appellant were properly refused. They too much narrow the issue before the jury, selecting fragmentarily only part of the facts necessary to any phase of the case stated in them. Besides, the fourth omits the word “reasonable” before the word “doubt.” In the sixth, the words “confronted as he was” are objectionable, as assuming that Carter did “confront” appellant throughout the difficulty. And the thirteenth declared that shooting a man ‘ ‘ with intent to kill and murder him ’ ’ might be justifiable. The words ‘ ‘ and murder ’ must have been inadvertently inserted.
All the instructions for the appellant having been refused, even those invoking the doctrine of reasonable doubt, it was especially incumbent on the court to charge the jury correctly for the state, and yet, in not one of the seven charges given
The fourth charge for the state is manifestly erroneous also, in telling the jury that “the use of a deadly weapon is a presumption of malice ” (thus it is written). This is clearly wrong in a case like this, where the circumstances attending the killing are fully shown, and hence there can be no room for presumptions, as held in Hawthorne v. State, 58 Miss., 778. Of itself it would not, however, be reversible .error. Lamar v. State, 63 Miss., 265.
We do not think the fifth instruction within the condemna
My brethren, however, think that the trial court has the power, in certain cases, to refuse all charges as to reasonable doubt, and it must be admitted that Singleton v. State, 71 Miss., 789, so holds. Neither the court nor the counsel in Singleton v. State refer to McGuire’s case, in 37 Miss., 378. That case was ably argued and well considered on this point. The learned attorney-general, in McGuire v. State, admitted that he could find no case supporting the view announced in Singleton v. State, 71 Miss, 782. It is manifest that the court in Singleton v. State failed to note the fact that the point it was deciding had been already decided in this state over thirty years before, exactly the other way, and for reasons as obvious as they are sound; for otherwise the court should have expressly overruled McGuire v. State, and not left it to mislead further. Singleton v. State imports into criminal procedure, where it- has no place, the rule followed in civil procedure, in very rare cases, of taking the case from the jury by a peremptory charge; for, to refuse a charge on reasonable doubt, is, of course, practically charging the jury to find the defendant guilty. Whether or not the evidence raises a reasonable doubt, is a question of fact and not of law, for the jury and not for the court. And, besides, it is, it seems to me, obvious that a charge as to rea
Reversed, and the cause remanded.