Dye v. State , 127 Miss. 492 ( 1921 )

Sykes, P. J.,

delivered the opinion of the court.

The judgment of the lower court in this case was affirmed without a written opinion. In a suggestion of error it is earnestly insisted that the judgment should have been reversed and the cause remanded because of the following-instruction granted to the state: “The court instructs the jury for the state that the term ‘malice aforethought’ as used in these instructions, means the felonious design or purpose to effect the death of the person killed, and that it is sufficient in law if such purpose or design existed immediately before or at the time of the killing.”

It is true that this instruction is erroneous, and is not a correct definition of “malice aforethought.” In this state “malice aforethought” is equivalent to “premeditated design,” or “deliberate design.” Hawthorne v. State, 58 Miss. 788. A felonious design is not the same as a premeditated or a deliberate design.

One may have a felonious design to kill and yet kill in the heat of passion. If there had been any of the elements of manslaughter in this case a very serious question would have been presented, but the defendant was either guilty of murder or nothing. There were no elements of manslaughter in the case, and the question of manslaughter was properly not submitted to the jury. Consequently we are of the opinion that no prejudicial error was committed by the giving of this instruction.

The suggestion of error is overruled.