| Miss. | Oct 15, 1896
delivered the opinion of the court.
There was no error in refusing to permit the witness, Ransom Garrett, to testify to what defendant, King, said when those two were searching for a knife at the place of the killing. We agree with counsel that it was “part of the res gestae, ” but it was part of the res gestee of the search for a knife, and not of the homicide, which had occurred some hours before.
It was not in accordance with proper practice to allow the state, in rebuttal, to extract from the witness, Raiford, a rehearsal of part of his testimony in chief, but it is not reversible error in this case, because it is clear it could not have worked any prejudice to the accused. The rule is familiar that witnesses in rebuttal should be confined to matters in rebuttal, and not allowed to repeat what they said on the examination in chief, and the rule is wise and proper and promotive of fair trials. Dillard v. State, 58 Miss., 389, 390. However, this matter is largely in the discretion of the court, and there was no such abuse of it on the trial of this case as could have worked injury or such as warrants serious criticism. The practice encouraged might become an engine of great oppression, and should be repressed by the courts, which are not organized to convict prisoners, but to see that trials are absolutely impartial and fair.
Defendant’s nineteenth instruction was properly refused. Besides being put in a shape strongly calculated to mislead a jury, it is not sound in substance. It tells the jury to discard all the evidence of threats and lying in wait, ‘‘ if, from all the testimony in the case, they have a reasonable doubt whether the killing was the result of a sudden encounter, or was the accomplishment of a purpose in the mind of defendant while he was waiting by the road. ’ ’ Murder may be committed in a sudden encounter, and in the case before us, while the killing may not have been in the accomplishment of any predetermined purpose to kill while lying in wait, it may still not have occurred but for the hostile feelings indicated by the threats, though the
It was error to give the fifth and sixth charges at the instance of the state. It is not the law, as charged in the fifth instruction, that if no excuse or justification of the killing is shown in the evidence adduced by the state, the defendant is guilty of murder, “ unless he has, by his evidence, proved excuse or justification.” This assumes as proved that the state has established the truth of the allegations of the indictment, and made out its case, and, after this assumption, it requires the defendant to prove his innocence in order to escape the highest penalty of the law. The very thing being investigated was the truth of the charge in the indictment, and, if that was made out beyond a reasonable doubt, prima fade it then devolved on defendant, not to prove innocence, but simply to raise a reasonable doubt from the whole evidence in the case. The mortal danger of a charge like this is shown in the use made of it by the vigorous and able district attorney in his concluding argument to the jury, as set out in the record. Hawthorne’s case, 58 Miss., 778" court="Miss." date_filed="1881-04-15" href="https://app.midpage.ai/document/hawthorne-v-state-7985579?utm_source=webapp" opinion_id="7985579">58 Miss., 778; Smith’s case, Ib., 874; Ingram’s case, 62 Miss., 142" court="Miss." date_filed="1884-10-15" href="https://app.midpage.ai/document/ingram-v-state-7986110?utm_source=webapp" opinion_id="7986110">62 Miss., 142. This fifth charge for the state in the case at bar is in full, thus: “ While it is incumbent on the state to prove the allegations in the indictment, or to make out its case, still, if there be no excuse or justification for the homicide, by the defendant shown in the evidence adduced by the state, then he is guilty of murder, unless he has, by his evidence,' proved excuse or justification.
It will be seen at a glance that, though it recognizes that the state must make out her case, it does not intimate that the jury must believe she has done so, but says defendant is guilty unless the state’s evidence shows excuse or justification, or unless defendant proves it. First, the state must make out her case
It was error to give the sixth charge asked by the state. Because defendant made threats, and because he was ‘ ‘ after-wards seen on the road traveled by deceased,” and because, when deceased came by, he provokéd a difficulty, and then picked up a piece of fence rail, which was a £ £ dangerous weapon, ’ ’ and tried to strike deceased, when deceased was doing nothing, but was, at that time, prevented by others, and because defendant still retained the weapon, and followed deceased— whether all this might or might not give deceased the right to draw his knife, it does not follow that, if defendant then struck and killed him, he is therefore guilty of murder, unless he got the weapon for the purpose of using it to kill or do great bodily harm to his antagonist- in a difficulty he intended to provoke, and did so use it and kill with it, pursuant to that design. Thomas’ case, 61 Miss., 60" court="Miss." date_filed="1883-10-15" href="https://app.midpage.ai/document/thomas-v-state-7985931?utm_source=webapp" opinion_id="7985931">61 Miss., 60; Hunt’s case, 72 Miss., 413" court="Miss." date_filed="1894-10-15" href="https://app.midpage.ai/document/hunt-v-state-7987679?utm_source=webapp" opinion_id="7987679">72 Miss., 413.
The whole scope of this charge, by the elaborate recital of evidence for the state, is to refer the killing back to the procurement of the weapon, but it omits the purpose' for which it was procured and its use in pursuance of the purpose. The error in these charges is not cured by those given for the defendant. Because of them, the case is
Reversed and remanded for a new trial.