Barnes v. State, 20517

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: STEVENS, J.
• Citation: 79 So. 815,118 Miss. 621
• Parties: BARNES v. STATE
• Docket Number: 20517
• Decision Date: 11 November 1918

79 So. 815

118 Miss. 621

BARNES
v.
STATE

No. 20517

Supreme Court of Mississippi

November 11, 1918

Division B

APPEAL from the circuit court of George county, HON. J. H. NEVILLE, Judge.

Dan Barnes was convicted of murder and appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

O. F. Moss, for appellant.

The fifth instruction granted by the state, we submit, was very prejudicial to the defendant and is simply vicious. This instruction also embodies an abstract proposition of law, and is condemned in the Riley case, the Cumberland case, and the Gordon case, supra. But that is not all. The fifth instruction for the state also amounts to a peremptory instruction to find the defendant guilty. We ask the court to analyze this instruction and see exactly what it says. In the first place it tells the jury that to constitute murder there must be present premeditation or an intent to kill. Note the alternative. We submit that an intent to kill is not murder, as laid down in this instruction. Note also the concluding words of this instruction where the jury is told that it is sufficient to constitute murder if the intent to kill exists at the time the fatal wound was given.

We submit in all seriousness that the fifth instruction granted for the state does not touch the law in the case with a hundred-foot pole, and it is indeed hard for us to conceive why a district attorney would ask for, and why a trial court would give, such an instruction in a murder case where a man's life is at stake. The court in this instruction tells the jury that if there be an intent to kill at the time of the killing, the defendant should be convicted. There might have been an intent to kill on the part of the defendant at the time of the killing and the defendant might at the same time, be justified in the killing in self defense. We take it that no authorities are necessary to show that this instruction granted for the state is not only erroneous but even vicious.

Therefore, we respectively submit that the judgment of the lower court ought to be reversed and the defendant discharged because there is no competent evidence in the record to warrant the conviction.

Frank Roberson, Assistant Attorney-General, for the state.

The fifth instruction given the state reads as follows: "The court instructs the jury that while it is necessary in order to constitute murder that there be present premeditation or an intent to kill, yet it is not necessary that such intent existed in the mind of the defendant for any particular length of time, but it is sufficient if the intent to kill exists at the time the fatal wound was given."

It may be admitted that this instruction is rather awkwardly worded, but the instruction was only attempting to advise the jury as to the length of time that the intent to kill must exist in order to constitute malice aforethought or premeditated design. I think that this instruction, when taken in connection with the other instructions for the state defining malice, together with the instructions for the defendant, could not have possibly misled the jury, because of a rather inapt or awkward use of words in expressing an idea that has already been given in other terms. "Premeditated design" in the old statute means the same as "malice aforethought" in the common law definition and "deliberate design" in the present statute. McDaniel v. State, S. & M. 401; Hawthorne v. State, 58 Miss. 778.

OPINION

[118 Miss. 623] STEVENS, J.

Appellant was indicted for the murder of J. J. Parker, was convicted, and, the jury failing to agree as to punishment, was sentenced to the penitentiary for life. There were no eyewitnesses to the unfortunate difficulty, and the only testimony as to the details, or as to who was the aggressor, must be found in the statements and the testimony of the parties themselves. The only testimony for the state as to the alleged unlawful assault by the accused is the dying declarations of the deceased. The state was compelled to rely upon these dying declarations to maintain its case.

Both parties are white men, and it appears that the deceased was a son-in-law of the accused. According to the dying declarations, the deceased was coming home [118 Miss. 624] from his work on a June evening between sunset and dark, and was waylaid by appellant, who demanded a settlement for a debt due and owing by the deceased. The deceased offered to pay him five dollars and suggested that they go up to the house and get a cup of coffee and arrange the balance. Thereupon the appellant began to curse the deceased, and stated that he had a "settlement" to make with him, and that he was going to kill him, and with such statements started on the deceased with his pocketknife. The substance of the dying declarations was further to the effect that the deceased picked up a pine stick to defend himself, when appellant halted and agreed that they would have no difficulty if deceased would throw away his stick but, instead of shutting up his...