Barnes v. State

Citation79 So. 815,118 Miss. 621
Decision Date11 November 1918
Docket Number20517
CourtUnited States State Supreme Court of Mississippi
PartiesBARNES v. STATE

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

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 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 knife and avoiding the difficulty, appellant, after the deceased threw down his stick, assaulted the deceased with a knife, stabbed him in the left side, and inflicted a serious and fatal wound.

The difficulty occurred June 18, 1917, and deceased lived until August 6th thereafter. Immediately after the difficulty deceased made his way to his home near by and summoned a doctor from Wiggins, about twenty miles distant, and about midnight the physician administered to the wounds. It appears that deceased was carried to a hospital at Gulfport June 26th, and there lingered, and died August 6th.

The alleged dying declarations were testified to by S. M. Parker a brother of the deceased, J. J. Ferth, a state witness, and R. C. Cowan, county prosecuting attorney of Harrison county. The declarations testified to by Parker and Ferth were made almost immediately after the wound was inflicted, and while the deceased was at his home awaiting the arrival of the surgeon. The other declaration, taken in the hospital at Gulfport, was testified to by R. C. Cowan, who was called in by a brother of the deceased for the purpose of hearing the statement. Mrs. J. J. Parker, the widow of the deceased, was also introduced by the state; but her testimony in the main was elicited by the cross-examination. In response to questions propounded by the district attorney, she stated, among other things, that the deceased "said he was cut very bad and thought he was going to die; . . . he was not positive about that; . . . I think he would have gotten well if we had the right doctor; I can't help saying that, because the cut was getting well when we took him to the hospital;" and, further, "when I saw him last, he said he thought he was going to get well in a few days; . . . that was in the hospital then."...

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7 cases
  • Vance v. State
    • United States
    • United States State Supreme Court of Mississippi
    • September 12, 1938
    ...... . . Hunter. v. State, 74 Miss. 515; McCaa v. State, 38 So. 228;. Cunningham v. State, 87 Miss. 417, 39 So. 531;. Butler v. State, 177 Miss. 91, 170 So. 148;. Brett v. State, 94 Miss. 669, 47 So. 781; Upton. v. State, 94 Miss. 1, 108 So. 287; Barnes v. State, 118 Miss. 621, 79 So. 815; Murphy v. State, 89. Miss. 827, 42 So. 877. . . This. instruction is fatally erroneous in that it is not predicated. of all of the facts introduced in evidence, and excludes from. the consideration of the jury the theory of the appellant. ......
  • Nelson v. State
    • United States
    • United States State Supreme Court of Mississippi
    • June 5, 1922
    ...which on account of its vagueness and indefiniteness is calculated to confuse and mislead the jury. Smith v. State, 23 So. 263; Barnes v. State Miss. , 79 So. 815. In second place this instruction tells the jury that insanity is no defense if the defendant knows the difference between moral......
  • Hydrick v. State
    • United States
    • United States State Supreme Court of Mississippi
    • March 4, 1963
    ...than to submit that matter to them in this abstract way. The safe paths are the best in drawing instructions.' See also, Barnes v. State, 118 Miss. 621, 79 So. 815; McDaniel v. State, 8 S. & M. 401; Johnson v. State, 223 Miss. 167, 77 So.2d 824; 53 Am.Jur., Trial, Sec. 573, p. 451. However,......
  • Ervin v. State
    • United States
    • United States State Supreme Court of Mississippi
    • July 12, 1920
    ...crime under the statute, whereas in the instant case the instruction complained of does not attempt to define the crime of manslaughter. The Barnes case is not in point, except in a general way. was a murder case in which the facts were close and the court simply held that the defendant was......
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