76 Miss. 258 | Miss. | 1898
delivered the opinion of the court.
Reluctant as we always are to interfere with the exercise of discretion by the lower court, we have been compelled in this case, after the most careful consideration, to hold that the application for a change of venue should' have been granted. Twenty-five witnesses, beside the defendant, testified positively that, by reason of i£ prejudgment of this case, or grudge or ill will towards the defendant,” he could not obtain a fair and impartial trial in the county. Some twenty witnesses were examined by the state; a number of them had formed opinions as to the guilt of the defendant which it would require evidence to remove. Most of the expressions heard by these witnesses were decidedly adverse to the defendant. Defendant was a stranger in the county. Deceased’s family connections were numerous, prominent and influential, and scattered over the county, especially the eastern part of the county, where was
The third instruction for the state is correct enough as an abstract proposition of law, but, as applied to the concrete case made by the testimony, should have added at the close, “if such personal timidity or needless fears are shown by the evidence beyond a reasonable doubt. ’ ’ The instruction that an ordinary pocketknife is not per se a deadly weapon, as a matter of law, is one we are not prepared to approve. What is an ordinary pocketknife? The knife in this case was a four-bladed knife, about three inches long closed, with a buck horn handle. Dr. Ward testified there were three parallel cuts on Saffold’s face, apparently made “with a dull edge.” It is proper to have the jury to say, as a matter of fact, whether a weapon is a deadly weapon, and the court properly charged the jury for the defendant to this effect. Indeed, the series of charges given for the defendant in this case were abundantly liberal to the defendant, and were drawn with consummate skill, and, whilst pointing out these errors in the two charges named, we would not for these errors reverse the judgment. But the fifth charge for the state, whilst announcing a correct abstract proposition of law, is fatally erroneous as applied to the case made by the proof. There is an entire failure to show, in a proper sense, that Saffold began-the difficulty. We forbear to comment on the testimony, except as necessary in passing upon these charges.
Judgment reversed, verdict set aside, and cause remanded for a new trial.