64 So. 738 | Miss. | 1914
delivered the opinion of the court.
Appellant was indicted for murder and convicted of manslaughter. He and Gus Commander, the deceased, had a controversy, in which he struck Commander on the head with an empty whisky bottle and fractured his skull. The wound was not in its nature mortal, according to the testimony of the attending physicians; but some time thereafter Commander contracted pneumonia, and died about two months after the infliction of the wound, according to the testimony of the physicians, from the combined effect of the wound and pneumonia. He would have recovered from the effect of either, according to their testimony, had it not been for the other trouble. On¿ of appellant’s defenses was that Commander’s death was caused solely by pneumonia; the wound not contributing thereto. One of the physicians testified that the wound had no ‘ ‘ connection or relation to ’ ’ pneumonia.
One of the instructions granted for the state was as follows: “The court instructs the jury, for the state, that if death ensues from a wound given in malice, but not in its nature mortal, but from which, being neglected or mismanaged, or in connection with other disease, the party dies, this will not excuse the party who gave it; but he will be held guilty of murder, unless it clearly and certainly appears, either by the evidence offered on behalf of the state or the defendant, that the deceased’s own neglect and want of care, or other disease disconnected from the wound, and not the wound itself, was the sole cause of his death, for if the wound had not been given the party had not died.”
It will be observed that this instruction submits to the jury two propositions: First, appellant’s liability in event death was the result solely or partially from neglect of the wound; and, second, his liability in event death was the result solely or partially of a disease disconnected from the wound. In so far as the first proposition is concerned, the instruction is supported by Crum v. State, 64 Miss. 1, 1 So. 1, 60 Am. Rep. 44.
Since the burden of proof is on the state throughout a criminal cause, and since guilt toaust always appear beyond a reasonable doubt before a conviction can be had, the court erred in instructing the jury that appellant “is guilty of murder unless it clearly and certainly appears . . . that . . . disease disconnected from the wound, and not the wound itself, was the sole cause of his death; ’ ’ appellant being entitled to an acquittal unless it appeared from the evidence beyond a reasonable doubt that this disease was not the sole cause of his death, but that his death was caused or contributed to by the wound.
The instruction is further erroneous in advising the jury in this connection that “if the wound had not been given the party had not died.” If the disease was the sole cause of the death, it cannot, of course, be said that if the wound had not been given the party had not died.
Reversed and remanded.
