Cumberland v. State , 110 Miss. 521 ( 1915 )

Sykes, J.,

delivered the opinion of the court.

The defendant, E. L. Cumberland, in February, 1913, in Neshoba county, shot with a pistol and killed one Will Lidell. He was convicted of murder and prosecutes this appeal.

The testimony for the state was sufficient to sustain the verdict of the jury, and that of the defendant made out a case of self-defense. Eyewitnesses to the homicide were introduced by both the state and defendant. The court gave the state the following- instruction (No. 7): “The court charges the jury for the state that if the jury believes from the evidence beyond' a reasonable doubt that Cumberland with a pistol shot Lidell, and thereby killing him, then the use of a deadly weapon is prima-facie evidence of malice and an intent to murder, and before this presumption is overcome' it must be shown by the evidence in the case, to the satisfaction of the jury, that at the time of such shooting with said deadly weapon the defendant was in immediate, real, or apparent danger of losing his life or suffering great bodily harm from Lidell, and such danger must have been urgent, present, and imminent at the moment of the killing. ’ ’ This instruction is erroneous, and in effect shifts the burden of proof to the defendant to satisfy the jury by the evidence of his innocence when the killing with a deadly weapon has been proven. True, it states that the jury ought to be satisfied from the whole evidence of his innocence; but we see no difference between this instruction and those which directly state that this burden rests upon the defendant. It further omits the fact that the jury must acquit the defendant if they have a reasonable1 doubt, arising from the evidence or the lack of evidence, of his guilt. This same instruction was given to the state in the Guice Case, 60 Miss. 714, and was also given in the Lamar Case, 63 Miss. 265. The court, in discussing this instruction in the Lamar Case, in part says:

“By the second instruction which was given for the state, the district attorney invoked, in behalf of the state, the presumption of malice, which arises from the killing with a deadly weapon, and by it the jury were told that this presumption must control unless from the evidence it appeared, to their satisfaction, that there were circumstances of alleviation, excuse, or justification.

“The very common practice by prosecuting attorneys of emphasizing the presumption of malice which arises from the use of a deadly weapon, and of isolating -and separating this presumption from all the other evidence in eases in which all the facts and surrounding circumstances are known and detailed by witnesses, should be discouraged by the trial judges by inserting in such instructions, when asked, the explanation that, though such presumption exists, yet when the facts and circumstances of the homicide are detailed by the witnesses, the jury should consider all the evidence, and from a consideration of the whole case determine whether the killing was or was not malicious. It is true that the law presumes malice from the deliberate use of a deadly weapon; it is not true that this presumption should control in determining the verdict in cases in which all presumptions are swallowed up by a full disclosure of all the facts surrounding and attending the killing. Instructions of this character are not erroneous, for the presumption does exist as stated, but it exists as a part of the whole case and not as a dominating factor controlling all the facts disclosed, as it is the tendency of such instructions to suggest. But the instruction in this case goes further, and informs the jury that this presumption of malice is to preyail unless, from the evidence, circumstances of alleviation, excuse, or justification are shown to the satisfaction of the jury. . . .

“It is sufficient if the evidence taken as a whole, whether introduced by the state or by the defendant, leaves the question of his guilt in reasonable doubt.

“The case of Guice v. State, 60 Miss. 714, in which .an instruction of similar character was held not to be erroneous, was one in which this court was able to say that no evidence was introduced either by the state or the defendant proving, or tending to prove, an overt act by the deceased.”

The defendant was denied an instruction fairly stating the converse of the above, reading as follows:

“The court instructs the jury for the defendant that in this ease the state must make out her case to a moral •certainty, and it is not until she has done so 'that the accused is required to do anything,, and then he need only from, the whole body of the evidence adduced for him •and ag’ainst him raise a reasonable doubt of his guilt -to entitle him to acquittal; and it is not true that, if no excuse or justification of the killing is shown by the state’s evidence, the defendant is guilty of murder, unless he has by his evidence proven the excuse or justification.”

The above instruction is a correct announcement of the .law and should have been given.

There were errors also in permitting the introduction of certain testimony:

The witness McElroy should not have been allowed to express his opinion that it “looked like there had been a crap game there;” he should have stated the facts and let the jury draw- the conclusion therefrom. The testimony of A. J. Tates showed that the place of killing was pointed out to him by some one, but by whom he did not say. He did not know, of his own knowledge, where 'the killing occurred; and it was not shown that he was correctly informed as to this, consequently his entire testimony was hearsay and should have been excluded. The testimony of Dr. Watkins about the witness Jones making a statement to him about the facts of the killing was evidently introduced in rebuttal of. the testimony of the witness Bryan. The latter had testified.of a statement made to him by Jones in the office of Dr. Watkins. Bryan stated, however, that Dir. Watkins was not present at this conversation; and in this he was not contradicted by Dr. Watkins. Therefore the testimony of Dr. Watkins was not in rebuttal and should have been excluded. It was further error to allow the witness Wilborn to testify that “he reckoned” the witness Cox had a son implicated in this killing, “that is what they say.” This is another instance of hearsay testimony purely and simply.

Reversed and'remanded.