Ammons v. State

• Decision Date: 05 November 1906
• Citation: 42 So. 165,89 Miss. 369
• Court: Mississippi Supreme Court
• Parties: HILTON AMMONS v. STATE OF MISSISSIPPI

42 So. 165

89 Miss. 369

HILTON AMMONS v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

November 5, 1906

November 1906

FROM the circuit court of Bolivar county, HON. A. MCC. KIMBROUGH Judge.

Ammons the appellant, was indicted and tried for and convicted of the murder of one Williams, and sentenced to be hanged; and from such conviction and sentence he appealed to the supreme court.

On the trial the evidence was sharply conflicting throughout. The testimony offered by the state was to the effect tat appellant shot the deceased without provocation, and practically without warning, several witnesses testifying that they saw appellant shoot the deceased. Appellant denied that he was in any way connected with the killing, and offered testimony of several witnesses to the effect that one Whaley, who had died since the date of the shooting and before the trial, fired the fatal shot. The court having granted to the state instructions to the effect that although the guilt of accused must appear from the evidence beyond reasonable doubt, it was not obligatory for the jury to know absolutely that accused was guilty in order to convict, a belief to such end, beyond reasonable doubt, being sufficient to sustain a finding of guilty; appellant thereupon asked the following instruction number 5, viz.:

"The court instructs the jury that it is the duty of each and every member of the jury in this case to decide the issues presented for himself, and if, after a careful consideration of all of the evidence in the case and the instructions of the court on the law and free consultation with his fellows there is any single juror who has a reasonable doubt of defendant's guilt, it is his duty under his oath to stand by his conviction and favorable to a finding of not guilty. He should never yield his convictions simply because every other single one on the jury may disagree with him."

This instruction was refused by the court, and such refusal was assigned for error on appeal.

Reversed and remanded. Reversed and remanded.

Frank Roberson, for appellant.

The theory of the appellant was that one Whaley, while under the influence of whisky, during the festivities attendant upon Christmas celebration, accidentally shot the deceased; and several witnesses testified to this effect. In view of the sharp conflict in the testimony between the witnesses for the state and the witnesses for the appellant, the court erred in not granting the fifth instruction asked by counsel for appellant.

There was no error in this fifth instruction. It urged each juror to decide for himself, under his oath, the issues presented by the evidence, and to stand by his decision thus arrived at, even though every other juror should come to a different conclusion.

Were each juror in every...