100 So. 577 | Miss. | 1924
delivered the opinion of the court.
Joe Hosey was indicted for selling and retailing intoxicating liquors. About six months after this indictment was found, and before -Hosey was tried, he was subpoenaed and testified before another grand jury of the county. The day upon which he testified before the g’rand jury he was put on trial. He filed a plea in bar, alleging
On the issue raised by the plea in bar, the appellant testified that he was subpoenaed before the grand jury, and that the foreman asked him if he knew of any violations of law concerning whisky, to which he replied that he had violated the law by selling whisky to federal officers. He also told the grand jury he was indicted for that particular offense. Several members of the grand jury testified in effect that the appellant was not asked about his alleged violation of the law and did not testify before the grand jury to any facts about it.
Where a person is already under indictment for sell- ’ ing whisky and thereafter testified before the grand jury to the facts relating to this alleged sale, he is entitled to immunity from prosecution under this law. Lucas v. State, 130 Miss. 8, 93 So. 437.
The state obtained the following instruction:
“The court instructs the jury for the state that the sole and only question presented to the jury to decide is whether or not the defendant Joe Hosey, appeared before the grand jury of said county at this term of the court before this case against him for the sale of intoxicating liquor was called for trial, and while before the grand jury of said county gave evidence of some fact or circumstance connected with, concerning or growing, out of the sale of the whisky for which defendant is now being tried, which would incriminate or tend to in
The following instructions were refused defendant:
“Every reasonable doubt in reference to any matter connected with this case, which is submitted to the jury for decision, should be resolved by the jury in favor of the defendant and against the state. ’ ’
“The court instructs, for the defendant, that if you believe that the defendant testified at any time before the grand jury in this case and gave evidence with reference to the matters alleged in the indictment, then under the law he is entitled to an acquittal, and it is your sworn duty to return a verdict of not guilty.”
“ The court instructs the jury for the defendant in this case that no person shall be excused from at tending and testifying before a grand jury or before any court, or in any cause or proceeding, criminal or otherwise, based upon or growing out of any alleged violation of the law with reference to the laws bearing upon intoxicating liquors or any. amendment thereof, on the ground and for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to criminate him or subject him to a penalty or forfeiture. But no person shall be prosecuted or be subject to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise, before the grand jury, or any court, so that if you believe that the defendant testified before the grand jury in this case and gave evidence with reference to the matters alleged in the indictment, then under the law, he is entitled to an
It is the contention of the appellant that this instruction given the state is erroneous because it authorized the jury to find the appellant guilty if they believed from a preponderance of the testimony that he did not testify to incriminating’ facts about himself before the grand jury.
The state contends that, since the appellant practically admitted the sale of liquor, then the only question at issue was what he testified before the grand jury, therefore the burden of proof rested upon him in this particular matter.
It is true that this is an affirmative defense, and the burden of proof rests upon the defendant to prove it. When, however, he has introduced testimony to sustain this defense, he has met the burden of proof on this particular issue. The burden of proof, however, in a criminal case always rests upon the state to satisfy the jury by testimony beyond all reasonable doubt of the guilt of the accused. And they must be satisfied beyond all reasonable doubt that the affirmative defense is not true.
The legal question here involved is precisely the same as that relating to the construction of section 1105, Code of 1900 (Section 831, Hemingway’s Code). Under that section a defense to carrying a concealed weapon is that “the accused was threatened and had good and sufficient reason to and did apprehend h serious attack from an enemy. ’ ’
That section expressly provides that the burden of proving this defense shall be on the accused. This court, however, has expressly held that an instruction is erroneous in a case of that kind which in effect states that the burden of proof rests upon the defendant to prove by a preponderance of the testimony that he apprehended an attack, etc. In those cases the court held that while the burden of proving this defense is upon the defend
Under these decisions it was error to give this instruction for the state. And under them also it was error to refuse the above instructions requested by the defendant. The state relies upon the case of Bennett v. State, 100 Miss. 694, 698, 56 So. 777. This case is not in point, but only discusses the question of the burden of proof. In the Bennett case there was no testimony whatever introduced by the defendant relating to a divorce from his first wife. The court held that such a defense was, an affirmative one, and it was not necessary for the state in the indictment to negative that fact, nor to prove the negative in making out its case in chief.
For these errors, the judgment of the court below is reversed, and the cause remanded.
Reversed and remanded.