Murdin v. State , 82 Miss. 507 ( 1903 )

Whitfield, C. J.,

delivered the opinion of the court.

The only instruction given for the state is fatally erroneous. It is true that in Skates v. State, 64 Miss., 644, 1 South., 843, 60 Am. Rep., 10, the court held that it would not reverse, because the whole body of instructions taken together announced the law correctly, although one of the instructions for the state ignored a special feature of the defense; but that is not our case. This offense created by statute has by the same statute an exception named, which, if it exists, makes the party not guilty though he should carry the weapon concealed; and yet the state asked but one instruction, and attempting, by that instruction, to define the offense, told the jury to convict appellant upon proof merely that she carried the weapon concealed, although there was testimony clearly showing — if the jury believed it — -that she carried the pistol because of the threats that had been made against her and communicated to her. It is true, one or two of the witnesses who testified to threats said they never told her until after the trial in the court of the justice of the peace, and there would be some force in the argument for the state that she could not therefore have carried the pistol because of threats of which she had not heard, if the case rested on the testimony of these witnesses. But, as stated, other witnesses testify that they had heard threats, and communicated them to her, before she carried the pistol. On this state of the evidence the charge for the state — especially when only one is given — should have contained the qualification that she was not guilty if she carried the pistol because of the communicated threats; otherwise, the jury were left at large as to the law.

Reversed and remanded.