Shaw v. State

79 Miss. 21 | Miss. | 1901

Calhook, J.,

delivered the opinion of the court.

It was fatal error to refuse the defendant the privilege of conferring with his own witnesses, whether they were under the rule or not. This has been so held where his counsel were refused this right. White v. State, 52 Miss., 216; Allen v. State, 61 Miss., 627. And very much more is this so in reference to the defendant himself. The denial was an invasion of his constitutional right. It is often of vital importance that both defendant and his counsel should, together, confer with his witnesses in the progress of a trial. The right cannot be restricted except that the trial court may impose reasonable limitations as to the length of time of the conference.

Instruction No. 11 for the defendant should have been given as asked. It was in these words: ££A reasonable doubt of defendant’s guilt arising out of any part of the evidence after consideration of all the testimony by the jury will justify their acquittal of the defendant.5 ’ The court modified it to read as follows: ££A reasonable doubt of defendant’s guilt as to a material fact arising out of any part of the evidence after consid eration of all the testimony by the jury will justify their acquittal of the defendant. ’ ’

The modification was error. None but material facts should be permitted to go to the j ury, and they are not to be required to discuss the materiality of testimony. It suffices the defendant if, from the whole, or any part of the evidence, or the lack of evidence, or the incredibility of witnesses, a reasonable doubt arises in the minds of the jurors. It is a reasonable doubt, from the case made, of defendant’s guilt, not of any particular material fact, which authorizes acquittal.

The witness, Measles, should not have been permitted, as we think, to testify to threats of defendant, made seven or eight months before, against the brother of the deceased.

Reversed cmd remcmded.