74 Miss. 515 | Miss. | 1896
delivered the opinion of the court.
The second instruction for the state is erroneous in telling the jury that if they believed, etc., that the defendant “ killed deceased while,” etc., they must find him guilty. It authorized conviction upon the proof of ‘ ‘ killing ’ ’ merely, and is expressly condemned in Kearney v. State, 68 Miss., at p. 239. There was no error in refusing the second and fourth instructions asked by the defendant, as drawn. The court determines the competency of a confession — as being voluntary — and the jury cannot then disregard it or fail to consider it as evidence. All competent testimony they must consider and weigh. If they believe the witnesses testifying to the confession are testifying falsely, they can disbelieve such witnesses, as to that, and attach no weight to the confession. But they are bound to weigh and pass upon all testimony held competent by the court. We understand the court to have held this confession competent. As we reverse the case upon other grounds, we intimate now no opinion as to its competency. The court
The third instruction asked by the defendant should have been given, and the defendant should also have been allowed to testify as to the threats alleged to have been made against his life, and as to his purpose in carrying the gun to the place where he put it.
Reversed and remanded.
