63 So. 670 | Miss. | 1913
delivered the opinion of the court.
‘■Appellant was indicted in separate indictments; the one charging him with being drunk and disorderly in a public place, and the other with carrying concealed a pistol. These cases were consolidated and both tried at the same time. The jury returned a verdict acquitting appellant of the charge of being drunk and disorderly, and a verdict finding him guilty of the charge of carrying concealed a deadly weapon, whereupon the court sentenced appellant to confinement in the county jail for a term of sixty days and imposed a-fine of one hundred dollars. From this judgment this appeal is prosecuted.
It is one of the contentions of appellant that it was error to try these indictments together. Mr. Bishop says: ‘ ‘ That where there are two indictments against the defendant, charging the same or like offenses, connected in the same transaction, they may be consolidated, and the cases tried together the same as if they were two
In its second instruction to the jury the trial court said: “The court instructs the jury for the state that if you believe from the evidence in this case beyond all reasonable doubt that the defendant carried concealed on his person a pistol, as alleged in the indictment, then your sworn duty is to ibid the defendant guilty as charged, unless you further believe from the evidence that the defendant had been threatened and had good and sufficient reason to apprehend a serious attack from Frank Wheeler, and that he did then and there so apprehend an attack from Frank Wheeler. ’ ’ In many cases the instruction would be proper. The scene of the alleged crime is laid in Madison county, ten or twelve miles from the home of appellant, in Leake county, and the instruction in effect tells the jury that appellant should be convicted, unless he apprehended an attack from Frank Wheeler at the very place where he was carrying the weapon and at the particular time when he was in Madison county. This instruction was too restrictive of the rights of appellant and is condemned in a recent case wherein the facts are similar to the facts of the present case. Harvey v. State, 59 So. 841.
Instruction number 3 is also complained of and is in this language: “The court instructs the jury for the state that in this case the burden is on the defendant of proving that the defendant had been threatened and had good and sufficient reason to apprehend a serious attack from an enemy, namely Frank Wheeler, and that he did so apprehend such an attack from Frank Wheeler. ’ ’ This instruction is a bit too strong. It is not incumbent upon the defendant to satisfy the jury that he had been threatened and had good and sufficient reason to apprehend a
If the defendant in a criminal trial can raise a reasonable doubt of his guilt in the minds of the jury, he is entitled to an acquittal, and he is never required to prove himself innocent.
Reversed and remanded.