Jones v. State , 70 Miss. 401 ( 1892 )

Woods, J.,

delivered the opinion of the court.

The action of the trial court in refusing to instruct the jury for the appellants as prayed in their charge marked No. 10, and in giving it in its modified form in No. 9, was. not error. If the charge as to the dying declaration was to be given at all, the learned judge properly qualified its mere legal abstractions by telling the jury that they were to look at all the circumstances under which- the dying declaration was made, and give it such credit as the jury might think it fairly entitled to in the light of all the evidence in the case. This -is the'general rule for examining and weighing evidence. ■ A living witness is corroboi’ated and supported by the other evidence, perhaps, or he is refuted and discredited by'the other evidence, and, in both cases, the jury should look at all the evidence to determine the weight of the testimony of the particular witness. We are aware of no reason why a dying declaration should not be looked at likewise through the medium of the concentrated light of all the evidence.

• The appellants are in the enviable attitude of persons shut off from complaint because of the court’s action in giving the ninth instruction for the state. That instruction warranted the jury in bringing a verdict of guilty as charged against both defendants. The state’s proof fully warranted such -a verdict also; yet, the jury did not convict of murder, but of manslaughter only. The jury was told by the instruction that it might convict of murder. The verdict was for ■manslaughter, and there is no room for complaint, at least on the part of the appellants. This is sufficient answer to the assignment of error on this point, but we dp not choose to rest our opinion wholly upon it. The instruction is, unfortunately, not drawn with that exactness of verbal expression which leaves no ground for criticism; and yet, the legal principle is defined with fullness enough, and the language employed in the definition is perspicuous enough to leave no doubt as to what was really meant.

The instruction, in its concluding part, to which objection is taken, is: “If you believe from the evidence, beyond a reasonable doubt, that the defendants, or either of them, feloniously shot and killed the deceased as charged in the indictment, and that, before or at the time the shots were fired, the defendants had formed in their minds a premeditated design to take the life of the deceased, and that the shots were fired in furtherance of such design, and without justifiable cause or legal excuse, then you should find them guilty of murder.” The meaning would be free from all misconception if the charge had said: “ If the defendants together,” or “ the defendants jointly,” or “ the defendants unitedly,” had formed in their minds a design to take the life of the deceased, etc. But, by any fair construction, this must be held to be the meaning of the charge as it appears in the record. It was one design formed by the defendants —both of the defendants — in their minds, not in the mind of each separately and without connection or agreement with the other. It was a common design formed by the two men, and not the independent resolution of individuals, acting alone and without agreement. It was the same design formed by both, not by each for himself, and in the minds of both, and not in the mind of each as an independent purpose.

Viewed in this light, it is not at all in conflict with the opinion of this court in the ease of Brabston v. State, 68 Miss. The eases are widely different in their facts, and the instructions condemned by us in that ease bear no real resemblance to the instruction which we are asked to repudiate in the case at bar. Neither on the law nor the facts are the two cases to be confounded by the legal mind.

All other assignments are so clearly non-maintainable that we decline to do more than say we find no error in the record.

Affirmed.