Strother v. State

74 Miss. 447 | Miss. | 1896

Woods, C. J.,

delivered the opinion of the court.

The modifications by the court below of the second and third instructions asked by the defendant were not erroneous. The statute, § 1027, authorizes one indicted for carrying concealed a deadly weapon to prove, by way of defense, that he “was threatened and had good and sufficient reason to apprehend a serious attack from an enemy, and that he did so apprehend, ’ ’ etc., and both modifications were necessary to conform the instructions to the letter and spirit of the statute. An apprehension of “ a serious attack ’ ’ is the language of the statute. The charge as asked made an apprehension of ‘ ‘ danger of bodily harm ’ ’ the equivalent of the statutory requirement, and this was palpably wrong. The court, by its modification in inserting the word ‘ ‘ great ’ ’ before the words ‘ ‘ bodily harm, ’ ’ in the charge, cured its vice. An apprehension of a “ serious attack from an enemy ’ ’ and an apprehension of ‘ ‘ great bodily harm,” are synonymous phrases. It was never the design of the statute to authorize men to carry concealed deadly weapons on a mere apprehension of some bodily harm. It is serious bodily harm, great bodily harm, that the threatened man may guard himself against by carrying concealed a deadly weapon.

The statute, by its very terms, makes the threatened man not only have good and sufficient reason to apprehend a serious attack from his enemy, but also requires him to actually apprehend such attack. .

The fourth and fifth instructions should have been given. While the burden of proving the defense made is devolved bylaw upon 'the defendant, yet it remains true that so long as there is a reasonable doubt of the defendant’s guilt, or a probability of his innocence, the state has not satisfactorily made out its case.

Reversed a/nd rema/nded.