Batiste v. State, 30357

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtCook, J.
Citation165 Miss. 161,147 So. 318
PartiesBATISTE v. STATE
Docket Number30357
Decision Date03 April 1933

147 So. 318

165 Miss. 161

BATISTE
v.
STATE

No. 30357

Supreme Court of Mississippi

April 3, 1933


Division A

HOMICIDE.

Where evidence fully discloses circumstances surrounding alleged assault to kill, instruction that law presumes malice from use of deadly weapon is erroneous.

HON. E. J. SIMMONS, Judge.

APPEAL from circuit court of Lincoln county HON. E. J. SIMMONS, Judge.

Henry Batiste was convicted of assault and battery with intent to kill and murder, and he appeals. Reversed and remanded.

Reversed and remanded.

James F. Noble, of Brookhaven, for appellant.

There was a full disclosure of all the facts attending and surrounding the shooting.

The first instruction for the state was erroneous, to-wit: "The court instructs the jury for the state that malice may be presumed from the deliberate use of a deadly weapon." This instruction was highly prejudicial to appellant.

There is an unbroken line of decisions of this state holding that such an instruction as the one now complained of constitutes reversible error when there is a full disclosure of all the facts surrounding and attending the shooting. [165 Miss. 162]

Walker v. State, 112 So. 673; Lamar v. State, 63 Miss. 265.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

I am fully aware of the, decisions of this court which hold that this presumption of malice may be swallowed up by the full disclosure of all the facts and circumstances. This is clearly the law as gathered from the cases of Winchester v. State, 142 So. 454; Smith v. State, 137 So. 96; Cumberland v. State, 110 Miss. 521, 70 So. 695; Walker v. State, 112 So. 673, and others. Particularly would it seem that the last named case, the Walker case, applies to the case at bar and should control in this case if the court should hold that there has been a, full and complete disclosure of all the facts and circumstances surrounding this assault and battery.

But, all that can be said from the testimony of these eyewitnesses, who testified at, the trial of this case in the circuit court is that Smith was deliberately shot by Henry Batiste with a deadly weapon. No explanation is attempted, except by appellant and several of his witnesses to the effect that Smith was coming on him with a knife. This situation is so violently contradicted, not only by all of the state's witnesses, but by a number of defendant's own witnesses, that it seems that such explanation is supported by such an...

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15 practice notes
  • Fant v. Fant, 31702
    • United States
    • Mississippi Supreme Court
    • June 10, 1935
    ...or other presumption cannot be relied upon. St. Louis San Francisco Ry. Co. v. Nichols, 161 Miss, 795, 138 So. 364; Batiste v. State, 147 So. 318, 165 Miss. 161. A client is one who applies to a lawyer or counselor for advice and direction in a question of law or commits his cause to his ma......
  • Cox v. Dempsey, 32283
    • United States
    • United States State Supreme Court of Mississippi
    • January 11, 1937
    ...of Turner's dangerous position of the road could not escape Hereby. 1 Restatement of the Law of Agency, sec. 214; Slaughter v. Holsomback, 147 So. 318; Texas Co. v. Mills, 156 So. 866; Sawmill Construction Co. v. Bright, Bright v. Finkbine Lbr. Co., 77 So. 316; Westover v. Hoover, 88 Neb. 2......
  • Lindeman's Estate v. Herbert, 34050
    • United States
    • United States State Supreme Court of Mississippi
    • February 19, 1940
    ...Miss. 795, 138 So. 364; Cunningham v. State, 56 Miss. 269, 31 Am. Rep. 360; Hitt v. Terry, 92 Miss. 671, 46 So. 829; Batiste v. State, 165 Miss. 161, 147 So. 318; Secs. 381-383, Code of 1930; Jacks v. Bridewell, 51 Miss. 881; Waller v. Shannon, 53 Miss. 500; Saffold v. Horne, 72 Miss. 470, ......
  • Tran v. State, No. 92-KA-01058-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • August 22, 1996
    ...725 (1949); Bridges v. State, 197 Miss. 527, 19 So.2d 738 (1944); Busby v. State, 177 Miss. 68, 170 So. 140 (1936); Batiste v. State, 165 Miss. 161, 147 So. 318 (1933); Winchester v. State, 163 Miss. 462, 142 So. 454 (1932); Smith v. State, 161 Miss. 430, 137 So. 96 (1931); Walker v. State,......
  • Request a trial to view additional results
15 cases
  • Fant v. Fant, 31702
    • United States
    • Mississippi Supreme Court
    • June 10, 1935
    ...or other presumption cannot be relied upon. St. Louis San Francisco Ry. Co. v. Nichols, 161 Miss, 795, 138 So. 364; Batiste v. State, 147 So. 318, 165 Miss. 161. A client is one who applies to a lawyer or counselor for advice and direction in a question of law or commits his cause to his ma......
  • Cox v. Dempsey, 32283
    • United States
    • United States State Supreme Court of Mississippi
    • January 11, 1937
    ...of Turner's dangerous position of the road could not escape Hereby. 1 Restatement of the Law of Agency, sec. 214; Slaughter v. Holsomback, 147 So. 318; Texas Co. v. Mills, 156 So. 866; Sawmill Construction Co. v. Bright, Bright v. Finkbine Lbr. Co., 77 So. 316; Westover v. Hoover, 88 Neb. 2......
  • Lindeman's Estate v. Herbert, 34050
    • United States
    • United States State Supreme Court of Mississippi
    • February 19, 1940
    ...Miss. 795, 138 So. 364; Cunningham v. State, 56 Miss. 269, 31 Am. Rep. 360; Hitt v. Terry, 92 Miss. 671, 46 So. 829; Batiste v. State, 165 Miss. 161, 147 So. 318; Secs. 381-383, Code of 1930; Jacks v. Bridewell, 51 Miss. 881; Waller v. Shannon, 53 Miss. 500; Saffold v. Horne, 72 Miss. 470, ......
  • Tran v. State, No. 92-KA-01058-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • August 22, 1996
    ...725 (1949); Bridges v. State, 197 Miss. 527, 19 So.2d 738 (1944); Busby v. State, 177 Miss. 68, 170 So. 140 (1936); Batiste v. State, 165 Miss. 161, 147 So. 318 (1933); Winchester v. State, 163 Miss. 462, 142 So. 454 (1932); Smith v. State, 161 Miss. 430, 137 So. 96 (1931); Walker v. State,......
  • Request a trial to view additional results

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