Boles v. State

Clayton, J.:

This was a conviction for murder in the circuit court of Warren county. The case comes to this court for various alleged errors. It will not be necessary to notice all of these.

On the trial, the court, at the request of the district attorney, gave the following charges to the jury:

1. “If they believe that, at the moment Boles killed the deceased, there was no reasonable ground to apprehend danger to his life, or great bodily harm, and no provocation sufficient to reduce the crime of killing, they must find the defendant guilty of murder.”

2. “ It is not necessary for the jury to believe that the defendant previously harbored the design to kill the deceased; if he killed him even upon a sudden passion, without provocation, such as the law recognizes as sufficient to' palliate the crime of killing, and without reasonable ground to believe his life in imminent danger, or in imminent danger of great bodily harm, they must find the defendant guilty of murder.”

The counsel for the prisoner then asked the court to charge the jury, “ that unless the jury find from the evidence that Boles, with a premeditated design, or in some act dangerous to others, evincing a depraved mind, regardless of human life, killed Donohoo, they cannot find a verdict of guilty for murder.”

The charges asked and given upon the part of the state were intended to show that the killing, in this instance, was not a case either of justifiable or excusable homicide. The charge asked, by the counsel of the prisoner, was intended to show what was necessary to constitute the crime of murder. It was couched in the language of the statute, and was improperly refused. On a trial for murder, it was certainly material to instruct tbe jury, wbat, under the law, constituted murder. They could then have applied the law to the facts. If any explanation were necessary, it might have been made.

The circuit judge, in such case, is not bound to give or refuse the instructions in the precise terms asked by counsel on either side. He may modify the charges asked on both sides, so as to make them comportable to his own views of the law. They will thus be presented in a consistent form, and rendered more intelligible to the jury.

For this error the cause will be reversed and a new trial granted.