Scott v. StateScott v. State
- Reporters:
- , ,
- Before:
- Henderson
Aрpellant was convicted of murder in the second degree, and his punishmеnt assessed at confinement in the penitentiary for a term of fifty years; hеnce this appeal.
There are two bills of exception in the record which relate to the charge of the court. The court instructed the jury on the theory of self-’ defense, which was raised by his еvidence; and also on the theory that appellant was justified in slaying deceased, because deceased at the time was attemрting to commit a rape on Mary Smith. The court, in applying the law to the fаcts on self-defense, instructed the jury: “If you believe from the evidence, bеyond a reasonable, doubt, that deceased made an attack upon defendant with a knife, and in his own necessary self-defense defendаnt killed deceased, under the law defendant would have been justified, irresрective of whether or not deceased had assaulted ■ Mary Smith or not.” The charge preceding and in connection with this ’ charge does nоt burden appellant’s self-defense with the reasonable doubt ■ as agаinst him; but coupled as the preceding charge is with the one succeeding it, the jury were inevitably left in a confused state as to what was the law on this subjеct. If appellant was entitled to a charge on self-defense at all, and from his evidence he was, a proper charge should 1 have been given.
Again, appellant’s evidence showed that at the time he came up on deceased he was on Mary Smith, in the act of pеrpetrating a rape upon her, and in accordance with this evidеnce the court attempted to give a charge on this subject; and in сonnection therewith used the following language : “If you believe from the еvidence beyond a reasonable doubt that deceased, Will Collins, made an assault upon Mary Smith with the intent and purpose of committing rape upon her, and the defendant killed Will Collins under such circumstances, you should аcquit the defendant.” This charge is complained of because it cаst the burden of proof on appellant to show beyond a reasоnable doubt that deceased was attempting to commit rape оn Mary Smith. This, of course, was erroneous, as appellant is entitled to the benefit of the reasonable doubt on every phase of the eаse; especially on every phase of his defense. The fact that in a subsequent portion of the charge the court instructed the jury if it reasonably appeared to defendant that deceased was making аn assault on Mary Smith, with the intent to commit a rape on her, and that he killed him undеr such circumstances to acquit him, would not relieve the error previоusly committed in the preceding charge. Besides; it is difficult to determine whether or not in the latter portion of the said charge, the jury would not feel that they were xequired to believe the facts stated therein beyond a rеasonable doubt. *87 Notwithstanding the proof on the part of the State shows-‘a -most outrageous murder, yet on appellant’s testimony the court wаs bound to give a charge on the subjects stated; and the court should have given a correct charge. Certainly he could not require the jury to believe appellant’s defense beyond a reasonable doubt.
Appellant also criticises the charge of the court because it failed to define rape or assault with intent to rape. This error ‘may possibly have been cured by the requested charge given by the court. Howеver, under the circumstances of this case, on another trial the court should define rape and assault to rape in the main charge to the jury.
For the errors indicated, the judgment is reversed and the cause remanded.
Reversed and remanded.