63 Miss. 265 | Miss. | 1885
delivered the opinion of the court.
On the seventh of May, upon the application of the district attorney, a venire was drawn for the trial of the appellant, returnable on the eleventh of the same month. Before the venire was drawn the appellant applied for a continuance because of the absence of several witnesses, all of whom, as appears by the affidavit for the continuance, resided either in the county of Lafayette, in which the trial was had, or in adjoining counties. The continuance was refused by the court, and on the eleventh day of the month the trial was begun and was concluded on the thirteenth; several days after the verdict a motion for a new trial was heard and overruled. After the refusal of the court to continue the case, the appellant took no steps to secure the attendance of the absent witnesses; he did not renew his application for continuance on the day of the trial, nor did he procure the presence of the witnesses, nor affidavits from them showing what facts they would have testified to had they been present, for use on the hearing of the motion for a new trial. Under these circumstances he cannot secure a reversal of the judgment because of the refusal of the court to continue the cause. It may b@ conceded that the facts set forth in the affidavit establishes the materiality of the testimony of the witnesses named, and that up to the time of the drawing of the venire the accused had used due diligence in trying to procure their attendance. But that the witnesses were material and absent was not sufficient ground for a continuance. It was necessary that the defendant should use and continue to use diligence to coerce their appearance.
One charged with a capital crime is required by statute to make application for continuance, if one is desired, before the drawing of the venire, failing in which he cannot afterward apply except for causes thereafter arising. But when an application is made before the venire is drawn and it is refused, the defendant is not relieved from the duty of attempting to secure the attendance of his witnesses on the day fixed for trial. The process of the court is still at his service, and he must invoke its aid to prepare for his trial. In this case it is more than probable that by the use of the process of the law the attendance of the witnesses might have been
If the court declines to grant the continuance he should sue out the proper process for them, and when the case is called for trial should renew his application, making such changes in his affidavit as the conditions then existing require. If the continuance is still refused, he should with unremitting diligence seek to secure their attendance pending the trial by the continued use of the process of the court; if tried and convicted he should still persist in his efforts to enforce their attendance before the expiration of the term, and on his motion for a new trial present them to the court for examination ; if, with all his efforts, he is unable to have the witnesses personally present, he should, if practicable, secure their ex parte affidavits, which should be presented for the consideration of the court, which, on the motion for a new trial, will review the whole case and correct any error prejudicial to the defendant which may appear in any part of the proceeding.
The court should not have admitted in evidence what was said by Harmon, when he started down to the place where Lamar and Bishop were, as to his purpose of going down there to “ persuade them to leave town.” Lamar was not then present, and he cannot
By the second instruction which was given for the State, the district attorney invoked, in behalf of the State, the presumption of malice, which arises from the killing with a deadly weapon, and by it the jury were told that this presumption must control unless from the evidence it appeared, to their satisfaction, that there were circumstances of alleviation, excuse, or justification.
The very common practice by prosecuting attorneys of emphasizing the presumption of malice which arises from the use of a deadly weapon, and of isolating and separating this presumption from all the other evidence in cases in which all the facts and surrounding circumstances are known and detailed by witnesses, should be discouraged by the trial judges by inserting in such instructions when asked the explanation that, though such presumption exists, yet when the facts and circumstances of the homicide are detailed by the witnesses, the jury should consider all the evidence, and from a consideration of the whole case determine whether the killing was or was not malicious. It is true that the law presumes malice from the deliberate use of a deadly weapon; -it is not true that this presumption should control in
We can only repeat what was said in Cunningham’s Case, 56 Miss. 269; and in Pollard’s Case, 53 Miss. 510; and in Hawthorne’s Case, 58 Miss. 778; and in Smith’s Case, 58 Miss. 867; and in Ingram’s Case, 62 Miss. 142; and in Dawson’s Case, 62 Miss. 241; and in Bishop’s Case, 62 Miss. 289, that a defendant is never, under any circumstances, under any phase of any case, required to satisfy a jury of his innocence. It is sufficient if the evidence taken as a whole, whether introduced by the State or by the defendant, leaves the question of his guilt in reasonable doubt.
The case of Guice v. The State, 60 Miss. 714, in which an instruction of similar character was held not to be erroneous, was one in which this court was able to say that no evidence was introduced either by the State or the defendant proving, or tending to prove, an overt act by the deceased. The defendant there contended that both the evidence for the State and that for the defense sufficiently showed an overt act to justify the introduction by him of evidence of antecedent malice and threats by the deceased. The instruction
It is insisted by the Attorney Genez’al that the vice of the second instruction for the State is cured by the fourth instruction for the
By the first instruction for the defendant the court was requested to charge the jury: “ That even though they should believe from the evidence that Lamar killed the deceased, yet, if the deceased was killed when Lamar honestly and reasonably believed from the behavior of the deceased that deceased was then and there seeking to take Lamar’s life, or to do him some great bodily harm, not in necessary self-defense, and that the only way of avoiding such injury at the hands of deceased was to slay, then Lamar had the right to defend himself, even to the infliction of death, and the jury must acquit. And this is true although the jury should further believe from the evidence that Lamar was in no actual danger of such injury, if he was in apparent danger of it. And in passing on the action of Lamar the jury should not try him by the light of after-developed facts, nor hold him to the same code and correct judgment which they are able to form; they should put themselves in his place and judge of his acts as by the facts and circumstances by which he was surrounded. And the court further instructs the jury that Lamar is entitled to be acquitted if the jury have, left on their minds by the evidence a reasonable doubt as to whether Lamar honestly and reasonably believed as above set forth under the circumstances above set forth in this instruction.” This instruction the court refused to give, but substituted one substantially the same in lieu of it, except that the portion in italics was omitted. The charge as asked was correct, and it was error to eliminate from it that portion by which the jury was told that the accused was entitled to acquittal if there was a reasonable doubt if that condition of things which existing would have justified his action in killing the deceased.
For this error the judgment is reversed and a new trial awarded.