[NO NUMBER IN ORIGINAL]
SUPREME COURT OF MISSISSIPPI
64
Miss. 428; 1 So. 354; 1886 Miss. LEXIS 82
October, 1886,
Decided
PRIOR HISTORY: [***1] APPEAL from the Circuit Court of La
Fayette County.
HON. W. S. FEATHERSTON, Judge.
Bob
Lamar was indicted for the murder of one Wm. Harmon. It appears that
on the day of the killing, Lamar, Dock Bishop, and others were in
the little town of Dallas, drinking and carousing. They became
riotous, and Lamar shot one Ab. Ceasly. Thereupon Lamar and the
Bishops started down a public road, apparently to leave the town.
After they had gone several hundred yards they turned and seemed to
be coming back. William Harmon, postmaster at Dallas, his brother, a
merchant, and several others, thereupon went down the road to meet
Lamar and the Bishops, and when they had met, William Harmon asked
Lamar to leave and not to come back to the town, and said that he,
Lamar, "had shot one man and that they did not want any more
trouble."
A quarrel and fight ensued between the two parties
and William Harmon was killed. The evidence as to what occurred
during this meeting is somewhat conflicting.
On the trial the
court instructed the jury for the defendant as follows:
"7.
The court instructs the jury that even should they believe from the
evidence that accused killed the deceased, yet [***2] if deceased
was killed when accused honestly and reasonably believed, from the
behavior of deceased, that deceased was then and there seeking to
take the life of accused, or to do him some great bodily harm, and
that the only way of avoiding such injury at the hands of the
deceased was to slay, then accused had a right to defend himself,
even to the infliction of death, and the jury must acquit.
"And this is true, although the jury should further believe from the
evidence that accused was in no actual danger of such injury, if he
was in apparent danger of it.
"And further, accused is
entitled to be acquitted if the jury have left on their minds by the
evidence a reasonable doubt as to whether the accused honestly and
reasonably believed as above set forth, under the circumstances
above set forth."
The court refused to give the eighth
instruction asked by the defendant, which was as follows:
"8.
The court instructs the jury that even although they may believe
from the evidence that accused had been drunk, disorderly, and
violent in Dallas just before the fatal affray, and that deceased
and others considered that it would be a disgrace to the town to
permit him to [***3] remain there and 'cut up' as he had been doing,
and went to him for the purpose of inducing
him to leave the
town; yet if they further believe from the evidence that at the time
of their going to him the accused was in the public road in or near
Dallas, and was not then and there violent or riotous, the deceased
and such others as went with deceased had no right to approach
accused in a threatening manner, with weapons of a deadly character
exhibited and in a condition to be used, and if the jury believe
from the evidence, or have a reasonable doubt but that accused was
so approached by deceased and his companions, and fired from a
reasonable apprehension that they were then about to take his life
or do him some great bodily harm, then they must acquit the
accused."
The defendant was convicted and he appealed.
DISPOSITION: Reversed and remanded.
CORE TERMS: principle
of law, announce, principles of law, whole evidence, entitle,
invoked, misconduct, assault, deadly
HEADNOTES: CRIMINAL
PRACTICE. Instruction. Repetition allowable. Rule as to abstract and
concrete.
A defendant in a criminal case is entitled to an
instruction asked, embodying a principle of law applied to his
theory of the facts deducible from the whole evidence, even though
such principle was already before stated in the abstract by another
instruction for the accused, if there be
in the evidence such
basis for doubt as to entitle the accused to have his theory
considered. Aldrige v. The State, 59 Miss, 250, cited. It is better
practice to charge the law as applied to the respective theories
contended for than to announce principles in the abstract.
COUNSEL: C. B. Howry and Edward Mayes, for the appellant filed an
assignment of errors.
The Attorney General submitted the case
for the State without argument.
JUDGES: CAMPBELL, J.
OPINION BY: CAMPBELL
OPINION: [*430] [**355] CAMPBELL, J.,
delivered the opinion of the court.
The eighth instruction
asked by the appellant should have been given. It is [***4] true
that the seventh given for him announces the principle of law
invoked by the eighth, but the eighth is accurate in stating the
legal principle as applied to the theory of the defendant, as to the
legitimate conclusion to be drawn from the whole evidence, and was
not properly refused because the principle had been announced by the
seventh instruction,
Aldrige v. State, 59 Miss. 250. It is
far better always to announce principles of law as applied to the
respective theories of fact as legitimately contended for by the
parties, than to state to the jury merely general rules or
principles for its application, and it is the right of a party to
have the principles of law specifically applied to his case by
instructions accurately drawn, and pertinent to the evidence.
The view of the evidence contended for by the accused is that
Harmon and others were indignant and irritated at the conduct of
accused and Bishop, and seeing a disposition, as they believed, on
the part of accused and Bishop to return to the scene of their
former misconduct in Dallas, bore
down on them armed with deadly
weapons exhibited in an angry and threatening manner, whereby they
justly excited [***5] the reasonable apprehension of the accused
that they meant a deadly assault on him, and he asked the court to
tell the jury, if this was the case, he had not by his misconduct
before that forfeited his right of self-defense, but was still
entitled to defend himself against a deadly assault, and, if he only
did this, he was not guilty.
[*431] Surely, there can be no
denial of the principle of law here invoked, and whatever may be the
true deduction from the evidence, there is certainly enough of
dispute and doubt, to entitle the accused to have his view of it
fairly submitted to the jury, to be disposed of by it, and not
adversely by the court.
Reversed and remanded.
***********
ROBERT LAMAR v. THE STATE.
[NO NUMBER
IN ORIGINAL]
SUPREME COURT OF MISSISSIPPI
63 Miss. 265; 1885
Miss. LEXIS 60
October, 1885, Decided
PRIOR HISTORY: [**1]
Appeal from the Circuit Court of Lafayette County.
Hon. W. S.
Featherston, Judge.
In 1884 Robert Lamar was indicted for the
murder of William Harmon. It appears that Robert Lamar and Dock and
James Bishop had been drinking and carousing together in the little
town of Dallas, in Lafayette County; that Lamar had already that day
had a difficulty in which he shot a man, and that they had annoyed
considerably some of the citizens of the town, among whom were the
Harmons, merchants in the town.
Lamar and the Bishops
started home, but after they had gone about one hundred yards from
Harmon's store, stopped. Wm. Harmon and several others, supposing
they were going to
return, started to go toward them. William
Harmon, when he reached them, began in a peaceable way to persuade
Lamar to go home. Lamar turned upon him and cursed and abused him.
After some minutes a general fight ensued, and Harmon was killed by
a shot fired by Lamar.
One witness for the State testified
that Harmon, before leaving the store, said that he was going
down to where Lamar and the Bishops were "to persuade them to go
home." This evidence was objected to by the defendant. The court
also permitted one Ritchie [**2] to testify, against the objection
of defendant, that Lamar and Dock and James Bishop were together at
the house of William Bishop on the night before the killing, and
that Dock Bishop persuaded James Bishop to accompany him and Lamar
to town the next day, though Lamar was not present at the time this
took place. The further facts necessary to understand the decision
will be found stated in the opinion of the court.
The second
instruction given for the State was as follows:
"If the jury
believe from the evidence that the defendant, with a pistol, which
was a deadly weapon, shot and killed William Harmon, then the use of
such deadly weapon is prima facie evidence of malice and an
intention to murder; and before this presumption of law is overcome,
it must be shown to the satisfaction of the jury by the evidence in
the case that at the time
of such use of such deadly weapon the
defendant was in imminent danger, real or apparent, of losing his
own life or suffering some great bodily harm, and such danger must
have been present, urgent, and imminent at the very time of the
killing."
The first instruction as asked by the defendant,
and modified by the court below, will be [**3] found set out in full
in the opinion of the court. The jury found the defendant guilty and
he appealed.
[For subsequent opinion, see 64 Miss. 428, 1
South. 354.]
DISPOSITION: Judgment reversed.
CORE
TERMS: continuance, deceased, malice, killing, attendance, deadly
weapon, new trial, venire, reasonable doubt, declaration, murder,
reasonably believed, whole case, conspiracy, diligence, honestly,
killed, evidence introduced, overt act, satisfaction, appearance,
afterward,
instruct, guilt, phase, renew, rebutted, vice,
Criminal Law, competent evidence
HEADNOTES: 1. Murder.
Continuance. Absent witness. Diligence.
A party charged with
a capital offense, who asks for a continuance before venire drawn on
account of an absent witness, but fails to renew such application at
the trial and makes no effort to secure such absent witness, either
for appearance on the trial or on the hearing of the motion for a
new trial, cannot for such refusal to continue secure a reversal of
the judgment.
[Cited in Godwin v. State, 73 Miss. 882, 19
South. 712.]
[See 14 Cent. Dig. Criminal Law, § 1336.]
2. Same. Continuance. What necessary to secure.
To
entitle a defendant in such case to a continuance because of the
absence of a witness, he should promptly have the witness summoned;
must ask for an attachment if the witness has been summoned and
failed to appear; must apply for a continuance before venire drawn,
and set out in his affidavit the name and residence of the absent
witness and the facts expected to be shown by him, and also show
what steps have been taken to secure his attendance; must negative
the idea that he is absent with defendant's consent or procurement,
and give the cause of the witness' absence, if it be known. If the
continuance be refused, defendant must sue out the proper
process for his witness, and when the case is called for trial must
again apply for a continuance, making such changes in his affidavit
as the conditions then existing require. If still refused, he should
persist in using the process of the court to compel the attendance
of the witness on the trial, and if convicted, on the hearing of a
motion for a new trial. If the appearance of the witness cannot be
had his ex parte affidavit must be presented to the court, if it can
be obtained, on the hearing of the motion for a new trial.
[Cited in Lea v. State, 64 Miss. 295, 300, 1 South. 244; Hill v.
State, 72
Miss. 531, 533, 17 South. 375; Borroum v. State, 22
South. 68; Donald v.
State, 41 South. 4.]
3. Same.
Evidence. Declarations of deceased in absence of accused.
L.
was charged with the murder of H. It was shown that just before the
killing H. said that he was going where L. then was "to persuade him
to leave town." He did go and did try to induce L. to leave town,
but a quarrel ensued, in which L. killed H. Held, that it was error
to admit H.'s declaration of his intention in going where L. was,
the latter not being present and having no knowledge of such
declaration. But the subsequent carrying out of this expressed
intention being shown, the admission of the declaration of this
intention did not prejudice the defendant's case.
4. Same.
Conspiracy. Evidence thereof.
It is competent to show a
conspiracy to murder among others than the defendants, though its
existence be unknown to him, if he be afterward connected with it by
competent evidence.
[See 14 Cent. Dig. Criminal Law, § 765;
26 Cent. Dig. Homecide, § 344.]
5. Same. Presumption of
malice. When circumstances proven.
Although the law presumes
malice from the deliberate use of a deadly weapon, this presumption
should not determine the verdict in cases where presumption is
swallowed up by a full disclosure of all the facts and circumstances
surrounding the killing, but should be considered as a part of the
whole case.
[See 26 Cent. Dig. Homicide, § 504.]
6.
Murder. Presumption of malice. What evidence necessary to overthrow.
It is error for the court to instruct the jury, trying an
indictment for murder, that the presumption of malice arising from
the proof of killing with a deadly weapon can only be overcome by
the evidence to the "satisfaction of the jury." The defendant is
never, under any circumstances, in any phase of any case, required
to satisfy a jury of his innocence; it is sufficient for his defense
if the evidence as a whole, whether introduced by himself or by the
State, leaves the question of his
guilt in reasonable doubt.
7. Same. Justification. Reasonable doubt. Instruction.
On
a trial for murder an instruction was offered by the defendant which
set out a condition of things, which, if it existed, or defendant
honestly and reasonably believed it existed, justified him in
killing the deceased, and added: "And the court further instructs
the jury that defendant is entitled to be acquitted if the jury have
left on their minds by the evidence a reasonable doubt as to whether
the defendant honestly and reasonably believed as above set forth
under the circumstances above set forth in this instruction." The
court struck out the clause quoted, and then gave the instruction.
Held, that the action of the court in striking out such clause was
erroneous.
COUNSEL: Edward Mayes and Chas. B. Howry, for the
appellant.
1. We claim that the proof raises at least a
reasonable doubt whether the appellant did not act in self-defense.
The second instruction for the State is erroneous, because it
deprives the accused of the benefit of the reasonable doubt. This
instruction is expressly condemned in Bishop v. The State, 62 Miss.
In that case, however, the court, moved by the considerations that
the verdict was clearly right, and that the true rule had been fully
explained in other instructions, affirmed the conviction below. Here
there is no such clear propriety of the conviction, and no such
curative operation of other instructions.
That same
instruction is erroneous because it practically instructs the jury
that every killing with a deadly weapon must be either murder or
self-defense; that it is impossible to commit manslaughter with a
deadly weapon.
2. The testimony of Ritchie as to the
interview the night before at the home of Jim Bishop, and [**4] that
of Henry Mullins and others in reference to the private talks on the
fatal day at Dallas, ought not to have been admitted. We maintain
that the testimony of Ritchie does not even tend to
prove a
conspiracy to murder the deceased, or any one else, so far as that
is concerned.
C. B. Howry and E. Mayes also made oral
arguments.
T. M. Miller, Attorney General, for the State.
1. The court did not err in refusing a continuance.
2.
The next assignment of error which I shall consider is the admission
of the testimony of Ben Ritchie. Ritchie testified that he saw all
the defendants (the two Bishops and Lamar) at Bill Bishop's the
night before the killing.
This testimony was objected to, but
no reason for the objection was stated, and, indeed, none can be
perceived. If this meeting the night before the difficulty, in which
Harmon was slain and in which all these defendants were actors,
could tend to prove a conspiracy, then it was proper to admit it; on
the other hand, if, to the common understanding, it has no such
tendency, then it is perfectly immaterial.
If there was in
this case proof sufficient in the opinion of the court (and there
manifestly was by [**5] the apparent concert among the Bishops and
Lamar) to establish prima facie a conspiracy, then it was competent
to admit the acts and declarations of the several conspirators, and
this
disposes of the objection as well to the testimony of Ben
Ritchie as above, and also when he testified that Dock requested Jim
Bishop to accompany Lamar and himself the next day.
There is
nothing in the objection touching the remark of Wm. Harmon as he was
leaving the store to prevent the return of the accused. It was part
of the res gestae, an exclamation merely, as he was then proceeding
to execute his purpose. Roscoe, Cr. Ev. 24, note.
3. I submit
that there was no error prejudicial to the accused in the
instructions taken altogether, and in connection with the evidence
and the issues presented to the consideration of the jury.
I
assume that the chief if not the only objection will be made to the
second instruction for the State. It is in the language of the
charge of same import given in the Guice case, distinguished from
the Hawthorne decision and approved by this court.
I
appreciate the criticism passed on the effect of this instruction as
placing too great a burden on the accused, [**6] but it seems to me
perfectly plain that no harm was or could have been done in this
case by granting it; and that the ruling in the Guice case should be
maintained and
applied because the facts are strong against the
accused, because the instruction did not devolve it upon him to
produce the exculpating evidence. But if mistaken in that view, i.
e., that the instruction is right in itself, or non-prejudicial when
considered with reference to the testimony, to the issue made, still
I insist, upon the authority of Bishop against the State, 62 Miss.
that there is no error in this instruction when taken in connection
with the others given, and especially the fifth and tenth charges
for the prosecution and the fourth for defendant.
T. M.
Miller, Attorney General, also made an oral argument.
Phil.
A. Rush, on the same side.
1. The application for a
continuance, when taken in connection with the testimony as given on
the trial, does not show good grounds for a continuance. Jones v.
The State, 60 Miss. 117.
2. The second instruction given for
the State is verbum verborum with that complained of in Guice and
Guice v. The State, 60 Miss. 714, and in substance the same as [**7]
one in Bishop v. The State, 62 Miss. 289.
The instructions
for the State and the defendant, when taken as a whole, are
indubitably fair and favorable to the defendant, and propound with
wonderful accuracy the law of the case. "The instructions for the
defendant liberally declare the law as to reasonable doubt, the
burden of proof, the measure of proof required of the State, and
every other phase of the defense."
JUDGES: COOPER, C. J.
OPINION BY: COOPER
OPINION: [*270] COOPER, C. J.,
delivered the opinion of the court.
On the seventh of May,
upon the application of the district attorney, a venire was drawn
for the trial of the appellant, returnable on the eleventh of the
same month. Before the venire was drawn the appellant applied for a
continuance because of the absence of several witnesses, all of
whom, as appears by the affidavit for the continuance, resided
either in the county of Lafayette, in which the trial was had, or in
adjoining counties. The continuance was refused by the court, and on
the eleventh day of the month the trial was begun and was concluded
on the thirteenth; several days after the verdict a motion for a new
trial was heard and overruled. After the refusal of the [**8] court
to continue the case, the appellant took no steps to secure the
attendance of the absent witnesses; he did not renew his application
for continuance on the day of the trial, nor did he procure the
presence of the witnesses, nor affidavits from them showing what
facts they would have testified to had they been present, for use on
the hearing of the motion for a new trial. Under these circumstances
he cannot secure a reversal of the judgment because of the refusal
of the court to continue the cause. It may be conceded that the
facts set forth in the affidavit establishes the materiality of the
testimony of the witnesses named, and that up to the time of the
drawing of the venire the accused had used due diligence in trying
to procure their attendance. But that the witnesses were material
and absent was not sufficient ground for a continuance. It was
necessary that the defendant should use and continue to use
diligence to coerce their appearance.
One charged with a
capital crime is required by statute to make application for
continuance, if one is desired, before the drawing of the venire,
failing in which he cannot afterward apply except for causes
thereafter arising. But when [**9] an application is made before the
venire is drawn and it is refused, the defendant is not relieved
from the duty of attempting to secure the attendance of his
witnesses on the day fixed for trial. The process of the court is
still at his service, and he must invoke its aid to prepare for his
trial. In this case it is more than probable
that by the use of
the process of the law the attendance of the witnesses might have
been [*271] secured; in any event, the duty of making the effort
rested on the defendant, and having failed to do so he cannot assign
for error the refusal of the court to grant a continuance. In view
of the frequency of these applications we deem it advisable to
repeat what has been before substantially said as to the correct
course to be pursued by a defendant who applies for a continuance.
To begin with, he should promptly issue summonses for all witnesses
who may be material for his defense; for any witness who has been
served with process and who has failed to appear as commanded he
should ask for an attachment, which will never be refused by the
court; in capital cases he should apply for a continuance before the
venire is drawn, setting out in his affidavit [**10] the names and
residences of the absent witnesses, the facts expected to be proved
by them, and should also show to the court what steps have been
taken to secure their attendance; he should negative the idea that
they are absent with his consent or procurement, and if any reasons
are known to him why they are not present, these should be stated.
If the court declines to grant the continuance he should sue out
the proper process for them, and when the case is called for trial
should renew his application, making such changes in his affidavit
as the conditions then existing require. If the continuance is still
refused, he should with
unremitting diligence seek to secure
their attendance pending the trial by the continued use of the
process of the court; if tried and convicted he should still persist
in his efforts to enforce their attendance before the expiration of
the term, and on his motion for a new trial present them to the
court for examination; if, with all his efforts, he is unable to
have the witnesses personally present, he should, if practicable,
secure their ex parte affidavits, which should be presented for the
consideration of the court, which, on the motion for a new [**11]
trial, will review the whole case and correct any error prejudicial
to the defendant which may appear in any part of the proceeding.
The court should not have admitted in evidence what was said by
Harmon, when he started down to the place where Lamar and Bishop
were, as to his purpose of going down there to "persuade them to
leave town." Lamar was not then present, and he cannot [*272] be
affected by imputing to him knowledge of an uncommunicated
declaration of a peaceable intention on the part of Harmon. But we
do not see that any prejudice was thereby done to the accused in
view of what appeared in evidence as to the subsequent conduct of
Harmon. It was not error to admit evidence of what passed between
the two Bishops on the preceding night at Mr. Bishop's house
relative to Doc. Bishop's persuading Jim Bishop to go to town with
them the next day. The purpose of this testimony was to show the
existence of a conspiracy between the parties, and it is competent
to prove a conspiracy among others, without showing knowledge or
concurrence by the defendant at that time, if he afterward is, by
competent evidence, connected with the conspiracy. Roscoe on
Criminal Evidence 413, and [**12] authorities there cited. In
Browning's Case, 30 Miss. 656, this rule was said to be a harsh one
and hardly reconcilable with the universally admitted principles of
the law of evidence, but its existence and authority were not
denied.
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 cases 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
[**13] 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
[*273] 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
prevail unless, from the evidence, circumstances of alleviation,
excuse, or justification are shown to the satisfaction of the jury.
Suppose a response to this instruction in the form of a special
verdict, it would read thus: "We, the jury, find that the defendant
killed the deceased by the use of a deadly weapon. The facts of the
killing have been fully disclosed by witnesses; we have fully
considered such facts [**14] and are not satisfied from them that
the killing was not malicious. In our opinion this is left in doubt
by the evidence." Could it be said that on such a verdict a judgment
of conviction of murder should be entered, or that a jury thus
doubting, but not satisfied, should have returned a verdict of
guilty?
We can only repeat what was said in Cunningham's
Case, 56 Miss. 269 [21 Am. Rep. 360]; and in Pollard's Case, 53
Miss. 410 [24 Am. Rep. 703]; and in Hawthorne's Case, 58 Miss. 778;
and in Smith's Case, 58 Miss. 867; and in Ingram's Case, 62 Miss.
142; and in Dawson's Case, 62 Miss. 241; and in Bishop's Case, 62
Miss. 289, that a defendant is never, under any circumstances, under
any phase of any case, required to satisfy a jury of his innocence.
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. The
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 [**15] was introduced either by the State or
the defendant proving, or tending to prove, an overt act by the
deceased. The defendant there contended that both the evidence for
the State and that for the defense sufficiently showed an overt act
to justify the introduction by him of evidence of antecedent malice
and threats by the deceased. The instruction [*274] was being
examined by the court with reference to the question whether by it
the jury were restricted to the evidence introduced by the
defendant, excluding from their consideration such testimony
favorable to the defendant as might appear in the evidence
introduced by the State.
In the case of Hawthorne v. The
State, 58 Miss. 778, the court had instructed the jury that the
presumption of malice arising from the use of a deadly weapon must
prevail unless rebutted by evidence introduced by the defendant, and
in the Guice case this court was contrasting the instructions in the
two cases, and in doing so said: "The third instruction for the
State seems at first blush to be similar to the one condemned in
Hawthorne's case, but upon closer inspection is seen to be free from
the vice of devolving upon the accused the burden [**16] of
overcoming by the production of evidence the presumption of malice
arising from the use of a deadly weapon, and only requires that such
presumption shall be rebutted 'by the evidence in the case,' which
means all the evidence, and this is correct." The instruction was
being examined with reference to the sources from which the jury
were to gather their information, whether from all the evidence or
only from that of the defense, as in the Hawthorne case, and nothing
was said by the court as to the quantity of evidence required by it.
It is true the instruction contained the declaration of an erroneous
rule on that subject, but since the court was able to say that no
part of the evidence, neither that for the State nor that of the
defendant, proved, or tended to prove, an overt act by the deceased,
it was wholly immaterial whether a right or wrong rule had been
declared as the measure of such non-existing evidence. A casual
reading of the opinion in that case may lead to the conclusion that
the instruction was approved as a whole, but when the facts are
considered and the language of the court is applied to that phase of
the instruction which was being discussed, it is manifest that
[**17] it was not intended to overturn the principle announced in
three previous cases, that it is always sufficient for the defendant
to raise a reasonable doubt of his guilt on the whole evidence.
It is insisted by the Attorney General that the vice of the
second instruction for the State is cured by the fourth instruction
for the [*275] accused. But since the judgment must be reversed upon
another ground, it is unnecessary to consider this point, which we
leave undecided.
By the first instruction for the defendant
the court was requested to charge the jury: "That even though they
should believe from the evidence that Lamar killed the deceased,
yet, if the deceased was killed when Lamar honestly and reasonably
believed from the behavior of the deceased that deceased was then
and there seeking to take Lamar's life, or to do him some great
bodily harm, not in necessary self-defense, and that the only way of
avoiding such injury at the hands of deceased was to slay, then
Lamar had the right to defend himself, even to the infliction of
death, and the jury must acquit. And this is true although the jury
should further believe from the evidence that Lamar was in no actual
danger of such [**18] injury, if he was in apparent danger of it.
And in passing on the action of Lamar the jury should not try him by
the light of after-developed facts, nor hold him to the same code
and correct judgment which they are able to form; they should put
themselves in his place and judge of his acts as by the facts and
circumstances by which he was surrounded. And the court further
instructs the jury that Lamar is entitled to be acquitted if the
jury have left on their minds by the evidence a reasonable doubt as
to whether Lamar honestly and reasonably believed as above set forth
under the circumstances above set forth in this instruction." This
instruction the court refused to give, but substituted one
substantially the same in lieu of it, except that the portion in
italics was omitted. The charge as asked was correct, and it was
error to eliminate from it that portion by which the jury was told
that the accused was entitled to acquittal if there was a reasonable
doubt if that condition of things which existing would have
justified his action in killing the deceased.
For this error
the judgment is reversed and a new trial awarded.
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