91 So. 397 | Miss. | 1922
delivered the opinion of the court.
The appellant was convicted of manslaughter, and sentenced to serve a term of ten years in the penitentiary. According to the testimony for the state, the deceased was riding a mule along the road, going to the house of a neighbor to borrow an ice cream freezer when some one from the house of the appellant called him. He rode close to a window of the house, and as he was leaving the appellant shot him twice with a Winchester rifle, one bullet entering the arm and the other the bach. According to this testimony the deceased was doing nothing except riding along when he was shot.
The testimony for the appellant was to the effect that the deceased rode up on the window of his house, and called for the appellant, who at that time was asleep; that someone waked up the appellant, who went to the window, whereupon the deceased began to curse and abuse him, and attempted to draw a pistol from his pocket, when the appellant got the rifle from a corner of the room and shot the deceased twice, the first shot entering the arm and the second shot the back. After the shooting the appellant rode about one hundred and fifty yards down the road, where he was lifted from his mule by some people. About this time the manager of the plantation came up, and the deceased stated to him that he was in the wrong in the difficulty. Upon the objection of the state this testimony was excluded from the consideration of the jury.
Without setting forth in detail all of the testimony both for the state and the defendant, we are satisfied that the jury from this testimony could have found the appellant guilty either of murder or manslaughter, or have acquitted him upon the grounds of self-defense.
Where there is a conflict in the testimony as to the facts of the homicide, the jury are not compelled to believe absolutely the facts as testified to by the witnesses for the State, or those for the defendant. They may believe some of the facts testified to by the state’s witnesses and other
In this case there was ample testimony for the jury to believe that the deceased cursed and abused the appellant, thereby causing- the appellant to shoot in the heat of passion. They had a right to disbelieve that part of the appellant’s testimony that at the time he shot the deceased was attempting to draw a pistol and shoot him. In other words, from this testimony the jury were justifiable in believing that the appellant shot the deceased in the heat of passion and not in self-defense.
The manslaughter instruction given for the state was as follows:
“The court instructs the jury for the state, that if from all the evidence in the case they believe that the defendant, in the heat of passion, without malice, by the use of a dangerous weapon, without authority of law, and not in necessary, or apparently necessary, self-defense, shot and killed the deceased, Mose Blanchard, then they should find the defendant guilty of manslaughter.”
This instruction was erroneous because it omitted the fact that the jury must believe from the evidence “beyond all reasonable doubt.”
The defendant, however, in this case was given 14 instructions. In these instructions it was most emphatically stated that before the defendant can be found guilty the jury must believe beyond every reasonable doubt and to a moral certainty his guilt. In these instructions the jury are clearly and forcibly instructed in various and different ways that the defendant must be found not guilty unless his guilt has been proven by the testimony beyond every reasonable doubt and to a moral certainty. The omission in the manslaughter instruction given the state was amply cured by the voluminous instructions given for the defendant, and we are satisfied the jury could not possibly have been misled by the omission in this instruction.
We find no reversible error in the trial of the defendant, and the judgment of the lower court is affirmed.
Affirmed.
