Mixon v. State, 55 Miss. 525

Mixon v. State

55 Miss. 525 | Miss. | 1878

Campbell, J.,

delivered the opinion of the court.

The third instruction for the state announces that “ while it is true that the state must make out its case beyond a reasonable doubt, yet it is also true that absolute, metaphysical, and demonstrative certainty is never required; that which amounts to mere supposition or probability is not what is meant by reasonable doubt.” This definition of “ reasonable doubt” is clearly wrong, and was pointedly condemned in Browning v. The State, 30 Miss. 656. This instruction is unfortunate, also, in the use of the word “ metaphysical,” as descriptive of certainty. It is probable that “ mathematical ” is the word intended. It is the more suitable of the two, for it is difficult to imagine what idea of certainty a jury would obtain from being told that “metaphysical certainty” is not required to warrant conviction. The error in defining “ reasonable doubt” is not cured by any other instruction; for, while other instructions announce that the accused is entitled to the benefit of a reasonable doubt, the erroneous definition of such doubt remains to mislead the jury.

It was erroneous to refuse to permit the defendant below to introduce evidence of what Matilda and Electra Kitchens said, as to the defendant being the person who killed’Joan Hapson, on the occasion when the defendant and others were brought before them for identification. These witnesses, who were introduced by the state, had testified that on the night after the killing thej^ had severally identified the defendant as the person who had done the killing, selecting him as the guilty one from several persons produced before them for identifica-, tion of the guilty one. To rebut this evidence the defendant offered to prove that, as matter of fact, the witnesses for the state did not, on the occasion mentioned, identify the defendant as him who had done the killing. On objection by the district attorney, this evidence proposed by the defendant was excluded. It should not have been. It does not belong to the class of evidence to impeach the credit of witnesses by proof of statements made by them out of court variant from *528their testimony in court, for which a foundation must be laid, by first examining the person proposed to be contradicted as to such statements. It was part of the case made out by the state that, on the day after the killing, several persons were produced before the witnesses Matilda Kitchens and Electra-Kitchens, at the place of the homicide, to see if they would,, on sight, recognize the man who did the killing and that when the prisoner was brought before them, they recognized and identified him as the person who did the killing. It was-certainly admissible for the prisoner, if he could, to break the force of this evidence by proof of what actually took place, whether of words or deeds, at the time of the alleged recognition and identification of the prisoner as the slayer of the decedent.

Judgment reversed, verdict set aside, and cause remanded for a new trial.