McDonald v. State , 78 Miss. 369 ( 1900 )

Whitfield, C. J.,

delivered the opinion of the court.

The second instruction given for the state is fatally erroneous. The words 1 ‘ the offense, ” in the instruction, mean murder, and the effect of the instruction is to tell the jury that if “ the design to kill ’ ’ existed but an instant, at the very time the fatal blow was struck, the appellant was guilty of murder. Now, manifestly, the design to kill might exist, and the killing be merely manslaughter. This instruction pares away the rights of defendant, and requires the jury to convict of murder no matter what the provocation, and even though the killing was clone in the heat of passion and on sudden provocation. Its vice is it eliminates manslaughter as a possible finding from the case, if only the design to kill existed as stated, etc. The case ■cited to uphold the instruction is Hawthorne's case, 58 Miss., 778. But the instruction there (pages 779, 780) had the necessary qualification absent here — “ unless the jury believe from .all the evidence in the case that the killing was manslaughter or was done in necessary self-defense. ” We have often said, and we again repeat it, that if district attorneys would not attempt to charge defendants into the penitentiary by paring away, by instructions strained to the last point of legal tension, the rights of the defendants, they would not only secure as many convictions, but convictions not requiring to be set aside. We cannot too earnestly commend to district attorneys the wisdom of this course. Is it not far wiser to state the law in a few, a very few, instructions, stating the law clearly and surely within the defendant’s rights, than to attempt the solution of the problem how near the state may go in its instructions to fatal error without erring ? Surely it is, and this instruction is a striking example of the unwisdom of the latter course.

We do not think the testimony of the clerk overcomes the legal presumption that the clerk of Benton county did forward the transcript by special messenger, as required by law. For all the clerk says, the clerk of Benton county might have delivered the transcript to a special messenger. There is no complaint that there was any defect in the transcript, within the meaning of § 1113, code 1892. No objection is made to the transcript, which is duly certified by the clerk of Benton county. It is not pretended that the appellant was not tried on a' coyjy.of the indictment, and an accurate copy. The sole point is, precisely, that the manner in which the transfer of the record was effected is jurisdictional, and must appear affirmatively of record. We think, as stated, that it does affirmatively appear, and that the testimony of the circuit clerk of Union county that it ‘ ‘ came to his hands by mail ’ ’ does not necessarily negative the idea that the circuit clerk of Benton county did forward it by special messenger. It is not necessary to decide the precise alleged jurisdictional point, and we leave it open, with the statement, however, that we are strongly inclined to the view that the manner of the transfer is merely directory, and that the jurisdiction of the circuit court of the county to which the venue has been changed attaches when the duly certified transcript is filed therein. If it be not a correct transcript, § 1413, code 1892, applies, and it can be perfected. If no point is made on the transcript, and, as here, only on the manner of the transfer, we are inclined strongly to hold that that is not jurisdictional.

Reversed and remanded.