102 So. 781 | Miss. | 1925
delivered the opinion of the court.
Appellant, Arnold Woulard, was indicted and convicted in the circuit court of Perry county of the crime of murder, and sentenced to the- penitentiary for life, from which judgment he appeals.
In none of the instructions given for the state were the jury informed that the evidence should show the guilt of appellant beyond a reasonable doubt. That is assigned as reversible error. They were instructed that if they believed from the evidence appellant was guilty they should so find. There was nothing in any of the charges for the state as to the weight of evidence necessary to justify a verdict of guilty. In several instructions for the appellant, however, the jury were charged that they could not find appellant guilty unless his guilt was shown by the evidence to a moral certainty and beyond all reasonable doubt. The instructions for the state and for appellant should be read together as one instruction and interpreted as a whole. $o read and considered the instructions for the state and appellant
There was no- error in the action of the court in refusing appellant’s application, to either continue the case or delay its trial to another day on account of the absence of the witness Dennis, by whom he expected to prove that deceased stated to the witness that the reason he did not shoot appellant at the time of the difficulty was that his gun was not loaded. In the application for a continuance or delay of the trial, in order to procure the presence of this witness, it was not set out when the deceased said he would have shot if his gun had been loaded, whether before appellant' shot him or afterwards. As a justification of the homicide appellant relied on self-defense. He testified that he shot the deceased in order to prevent the latter from taking his life or doing him great bodily harm; that at the time he shot deceased the latter had his gun trying to shoot him. It was most pertinent therefore as to whether the deceased meant in his statement to the witness that he would have shot appellant as aggressor or in self-defense. We hold that what appellant desired to prove by the absent witness was immaterial. It was an admission by the deceased, entirely consistent with the evidence for the state, which showed that appellant was the aggressor in- the difficulty, and not the deceased.
A short while, perhaps from ten to fifteen minutes, before the homicide the deceased had fired a shot with his shotgun near appellant’s home. Some of the shot from this load struck appellant’s wife and child, making
Appellant was charged in the indictment with the murder of Isadore G-rug;. Some of the witnesses referred to deceased by that name, while others referred to him as Cidero Cruize. Before going into the trial appellant objected to “the indictment now presented to the court as being a certified copy of an indictment purporting to come from the secret records of indictments, and charges that he unlawfully and feloniously killed oiie Isadore Grug, a human being, and at a former term of this court defendant was put to trial for the murder of one Cidero Cruize, a different person and a different charge.” This objection was overruled and the action of the court in so doing is assigned as error. The record shows that the deceased was known as well by one of those names as the other. That being true the indictment could have alleged either name, lé B. G. L-., p. 182, section 28. And furthermore, if, during the progress of the trial, it develops from the evidence that the deceased is given the wrong name in the indictment, under section 1508, Code of 1906 (section 1266, Hemingway’s Code), this is a mere amendment defect. Smith v. State, 103 Miss. 356, 60 So. 330. And a failure to
The appellant argues that his request for a directed verdict should have been granted. We are unable to see upon what that contention is based, for the evidence on behalf of the state is very strong and convincing that at the time appellant shot and mortally wounded the deceased the latter was making no demonstration whatever to harm appellant.
We find no merit in the other assignments of errors. They are not of sufficient seriousness to call for a discussion by the court.
Affirmed.