Nelms v. State
58 Miss. 362
Miss.
1880
Check Treatment
George, J.,

delivered the opinion of the court.

The plaintiff in error was convicted of the murder of Rufus Armistead, and was sentenced to suffer the death-penalty. He complains of the judgment in the court below in several pai'ticulars, which we will now proceed to consider: —

1. There was no error in refusing the continuance. The granting of a continuance is in a great measure in the sound discretion of the court, and we do not think that discretion was abused. The defence relied on in the affidavit for a continuance and setup on the trial was an alibi. The accused admitted there were seyeral persons present by whom he could prove the alibi, which was the fact he desired to prove by the absent witnesses ; and on the trial eight or nine witnesses testified that the defendant was ten miles distant from the scene of the murder when it occurred. The statement in the affidavit that, owing to the excitement in Tunica County against the defendant, witnesses were deterred from testifying in his favor, was without weight, and properly disregarded by the judge. The homicide was committed aud the trial had in another county, and it was-not shown that any excitement existed there; and on the trial many witnesses appeared and gave testimony in the defendant’s behalf.

2. It is urged that the court erred in allowing the State to introduce in evidence, and in rebuttal of the defendant’s evidence, the affidavit made by the accused for a continuance, and the verbal addition he made to it in response to questions propounded to him by the court. We see no objection to this evidence. If, as is contended (and about this we express no *367opinion, as the case must be tried anew), this affidavit and statement were contradictory to the evidence introduced by the accused to establish the alibi, it was proper and competent evidence to be considered by the jury. Nor was it an objection to the verbal statement that it was elicited by questions propounded by the court, for the affidavit was on its face insufficient, and the object of the judge in propounding the questions was to give the prisoner an opportunity to perfect the affidavit, and not to elicit confessions from him. We are bound to presume that there was nothing in the manner of the circuit judge, as there was certainly nothing in the language used by him in propounding the questions to the accused, which could in the least cause his answers to be otherwise than voluntary. * We, however, wish to be understood as affirming that if the questions were propounded otherwise than for the legitimate object of aiding the prisoner in his application then before the court, his answers should have been excluded.

3. It is next objected that the sixth charge given to the jury at the instance of the State was improper. As the instruction stands, it is objectionable. Whilst it is true, as a matter of fact, that “the defence of an alibi is one that is easily fabricated, and is often attempted by contrivance, subornation, and perjury,” as was stated to the jury in the charge, it is also true that it is a perfectly legal and good defeuce when properly made out, and sometimes is the only means of escape left to an innocent person. The court, whilst properly charging the jury to weigh the evidence in support of the alibi with caution and rigid scrutiny, ought not to have suggested to the jury the fact contained in the quotation above made, that it was often the result of contrivance and perjury, without at the same time informing them that when fully and satisfactorily made out it was a perfectly good and legal defence. The effect of the charge as it stood was to prejudice the jury against that kind of a defence, and it therefore tended to *368induce them to give less credit to the evidence setting it up than to other evidence of equal credibility.

4. The twelfth charge given for the State, if rightly understood, is strictly correct, and liable to no criticism which would induce us to set aside the verdict. But, as we must grant a new trial on another ground, we deem it proper to remark that instructions should be drawn up in language which in its oi’dinary signification expz*esses to the mind the idea intended to be conveyed by the court. Juroz’s are not all educated, in this State, and there is some danger that a jury might fail to draw the distinction between “evidence” and “proof.” It would have been better, therefore, if in this charge the court had told the jury that the circumstances named in it were evidence which “ tended to show the prisoner’s guilt,” instead of, simply, that they were “ evidence of his guilt.” A case might arise in which it would appear that the juiy might have been influenced in their verdict by such a chaz’ge, and if so, it might bo our duty to set aside the verdict for that cause alone.

5. The eighth charge asked for by the prisoner, and refused by the court, is in these words : “ The court instructs the jury that if there is a probability of the innocence of the defendant, Ed. Nelms, then a reasonable doubt of the guilt of the defendant exists, and the jury must find a verdict of not guilty.” This charge ought to have been given. See Browning v. The State, 30 Miss. 656 ; Mixon v. The State, 55 Miss. 525. There is nothing in the other charges which were given, to remove this error.

Judgment reversed and a new trial granted.