10 Adv. S. 16 | Miss. | 1952
Appellant was convicted on a charge of assault and battery with intent to kill and murder one Vardaman Smith by cutting and wounding the said Smith with a certain deadly weapon, towit, a pocket knife. The first assignment of error is that the verdict of the jury is contrary to the overwhelming weight of the evidence for which reason the trial court erred in overruling the motion for a new trial. This assignment necessitates a review of the evidence.
Smith owned and operated a place of business about five miles south of Magee on Highway No. 49 where he was engaged in the selling of intoxicating liquor in violation of law. This place was operated for white customers only. About 500 feet away and on the same premises he owned another place of business for colored customers only. This was operated for him by one "Willie Parrett, a white man. Liquor was sold at this place and in addition there was operated a lunch counter and a gambling room. On the evening of the alleged crime a white man entered the colored place of business and was creating a disturbance among the colored patrons. Parrett reported this to Smith who armed himself with a pistol and went and asked this white man to leave, which he did. Thereupon Smith got upon the counter and made a talk to the colored patrons, telling them that he was operating the place for their pleasure and convenience, that he desired law and order, that they were welcome to come at any time, but that they should leave their knives and weapons at home and not create any disturbance. Alfred McNair, a son of appellant, started out the front door stating that he was leaving and would never 'come back. The facts up to this point are not in dispute.
Smith and Parrett both testified that at this point Alfred McNair turned around, cursed Smith, and started on Smith with his knife; that Smith thereupon drew
(Hn 2) The second and last assignment argued is that the trial court erred in refusing the following instruction: “The court instructs the jury for the defendant that if there is reasonable probability of the defendant’s innocence then there is a reasonable doubt of his guilt and that in that event it is your sworn duty to find him not guilty. ’ ’ This instruction should have been given. Wingo’s Mississippi Criminal Law and Procedure, Section 1660; Jones v. State, 141 Miss. 894, 107 So. 8; Nelms v. State, 58 Miss. 362. In both the Jones and Nelms cases this Court criticized the action of the trial court in refusing such an instruction. The convictions in both of those cases were reversed but there were other grounds for reversal. In the case at bar the court granted appellant an instruction which told the jury that if Smith was cut by some other person then it is the sworn duty of the jury to find him not guilty and that “it is not necessary that you believe this beyond a reasonable doubt but that if you believe it to be reasonably probable, then it is your sworn duty to find the defendant not guilty.” "We are
Affirmed.