Poole v. State

56 So. 184 | Miss. | 1911

Whitfield, C.

There is a very great conflict in the testimony in this case, and especially as to whether the defendant stabbed the deceased on the floor of the gallery, or after the deceased had knocked him off on the ground and was on him, beating him. Only one witness for the state testifies that the stabbing was done on the gallery. The defendant himself and another witness, Clinton Boyd, testified that the stabbing of the deceased by the defendant was done while the defendant was on his back on the ground and deceased was on top of him, beating him in the face. The wife of the defendant testifies substantially to the same thing, because she testifies that she saw the defendant get his knife with his left hand out of his pants pocket and open it. It is not easily conceivable that he could have used this knife, which he then for the first time opened, on the gallery. The state asked, in this condition of the record, only two charges, No. 3 and No. 4, excepting the first and second, the first of which was a mere definition of murder, and the second, as to the form of verdict. The third and fourth charges presented the vital points in the case, and are as follows:

“3. The court instructs the jury, for the state, that they are the sole judges of the testimony, that they are the judges of the credibility of the witnesses and of the weight to be attached to the testimony of each and all of them, and that the jury is not bound to take the testimony of any witness or witnesses as absolutely true, and they should not do so if they are satisfied, from all the facts and circumstances proven on the trial, that such witness or witnesses are mistaken in the material matters testified to by them, or that from any other reason his or their testimony is untrue or unreliable.

“The court instructs the jury, for the state, that in passing upon the testimony of the witnesses for the state and for the defendant that they have the right to take into consideration the interest which any witness may feel in the result of this suit, as shown by the facts and circumstances growing out of the testimony.in the case, and to give to the testimony of each and every witness only such weight as they think it entitled to under all the circumstances proven in the trial.”

We cannot concur in the contention of the appellant that there is, on the facts in this record, any error in the fourth instruction given for the state. It is very earnestly insisted that the charge was aimed at the defendant; but we have just pointed out above that there were two other witnesses, besides the defendant, one who testified expressly, and the other practically, like the defendant himself, and we cannot say, in view of this, under our previous holding, that this instruction was aimed a,t the defendant.

But the third charge given for the state is expressly condemned in Riley v. State, 75 Miss. 354, 22 South. 890, and Gables v. State, 54 South. 833, approving the Riley case. The language in that charge, that “if the jury are satisfied, either from all the facts and circum- • stances proven on the trial, that such witness or witnesses are mistaken in material matters testified to by them, or that from any other reason their testimony is untrue or unreliable, ” is fatally erroneous. The court should not have told the jury, in the alternative, that they might be satisfied from any other reason that the testimony was untrue. This left the jury at liberty to disregard the testimony for any reason they saw proper, whatever that reason might be; and we cannot say on this record that it is not reversible error.

Manifestly this charge was a vital one in the case, and, being fatally erroneous, for the reason stated in the Riley case, supra, we are constrained to hold that it constituted in this case, on the sharp conflict in the testimony, reversible error.

Reversed and remanded.

Per Curiam. The above opinion is adopted as the opinion of the court, and for reasons therein set out the judgment is reversed and the cause remanded.