| Miss. | Mar 15, 1898
delivered the opinion of the court.
Burg Joslin was convicted, at the January term, 1898, of the circuit court of Tishomingo county, of the crime of manslaughter, in the homicide of a neighbor boy, Lucius Brown. The unfortunate occurrence happened at night, at Barnes’ Chapel, just as the congregation was about to disperse to their homes. The two boys were under fourteen years of age, and but little is known of the difficulty between them, save that one of them was stabbed and mortally wounded by the other. The motive for the deed, and the special circumstances of the case, are unknown. The defendant below was in the twelfth year of his age, and the first and sixth instructions for the state are as follows:
“1. If the jury believe, from the evidence, beyond a reasonable doubt, that the accused, with malice, expressed or implied, stabbed the deceased so seriously that he died the next day, then the jury may find the defendant guilty as charged.”
“ 6. The court instructs the jury that if they believe, from the evidence in this case, beyond a reasonable doubt, that the defendant killed Brown without malice, in the heat of passion, in a cruel and unusual manner, without authority of law and not in necessary self-defense, actual or apparent, then the jury will find the defendant guilty of manslaughter. ’ ’
Neither of these instructions is qualified by the principle which pervades the common law when dealing with persons under fourteen years of age, that it is incumbent upon the state to show that the defendant had capacity to discern between good and evil. The learned court, in other instructions, both for the state and the defendant, charged the jury that for his conviction he must lie shown capable of distinguishing between right and wrong; but we apprehend this ruling did not cure the error in the first and sixth instructions for the state.
The principle contained in these instructions, that the defendant might be convicted without' evidence of capacity to discern between good and evil, is opposed to the rule announced in the
The state takes a cross-appeal in this case, on the ground that certain declarations of the deceased, made, as it is contended, in extremis, were excluded from the jury. Declarations of a deceased person, to be admitted in evidence, must not only be made in extremis, but must be made when the declarant is under a sense of impending dissolution.
We think that it does not sufficiently appear in this case that the deceased, when the declarations, sought to be given in evidence, were made, was conscious of impending death; and so, therefore, they were properly excluded.
Reversed cmd remanded.