No. 26790. | Miss. | Jan 16, 1928
"That if the defendant and Eugene Huggins agreed between themselves to rob the store of McCarty, and if the defendant and Huggins attempted to carry out such an agreement, while the defendant was present for the purpose of aiding him, if any such there was, then the deceased had a right to arrest both or either of them without a warrant, and in effecting such arrest, if any there was, he had a right to use every reasonable means that any reasonable person situated as he was would have used under like circumstances.
"That if Eugene Huggins stole as much as twenty-five dollars from the cash drawer of the deceased, this was a felony, and the deceased had a legal right to arrest any one that he had reasonable grounds to suspect or believe to be connected with him as an accomplice, and in effecting such arrest, if any such arrest was made, he had a right to use such means as may have appeared necessary to any reasonable person situated like the deceased was at the time."
The fault with each of these instructions is that it states an hypothesis which, if believed by the jury, authorized them to draw a certain conclusion, without telling the jury that the hypothetical facts embodied in the instruction must be established by evidence to a moral certainty and beyond reasonable doubt. But, in another instruction given for the state, the jury were told that it was necessary for the guilt of the appellant to be shown by the evidence beyond reasonable doubt.
Sixteen instructions were given for the appellant, in several of which the jury were told that they must acquit appellant unless his guilt was shown by the evidence to a moral certainty and beyond all reasonable doubt. One of the instructions given for appellant was what is known in our jurisprudence as the "two-theory instruction," in which the court told the jury that if there were two reasonable theories arising out of the evidence, one favorable to the state, and the other favorable to the appellant, and the jury entertained a reasonable doubt as *411 to which was the correct theory, under the law, it was their duty to accept the theory favorable to appellant, although the one favorable to the state was more reasonable and supported by stronger evidence.
This court has often held that all the instructions given for the state and appellant are to be taken together as one instruction. So considered, if they embody the correct governing principles of law, there is no error, although it be true that certain of the instructions, taken alone, are erroneous.
We are of opinion that the instructions for the state and appellant in this case, read together, put before the jury the correct governing principles of law. Therefore, the two erroneous instructions given for the state were harmless.
The action of the court in refusing certain instructions requested by appellant is assigned and argued as error. Some of these instructions embody correct applicable principles of law. Others are erroneous. Refusing those embodying correct principles of law was without harm to appellant, because such instructions were substantial duplicates of other instructions granted the appellant. Every phase of the case, especially every conceivable view favorable to appellant, was embraced in the instructions given to the appellant.
We think the evidence was ample to go to the jury on the question of conspiracy between appellant and Eugene Huggins.
We see no harmful error affecting appellant in the ruling of the trial court in the admission or rejection of testimony.
As we view the record in this case, appellant had a fair and impartial trial, and must suffer the penalty fixed by law for the crime of which he was indicted and convicted.
The judgment of the lower court will therefore be affirmed, and Friday, the 24th day of February, 1928, is set for appellant's execution.
Affirmed. *412