Batiste v. State
Citation | 165 Miss. 161,147 So. 318 |
Decision Date | 03 April 1933 |
Docket Number | 30357 |
Court | United States State Supreme Court of Mississippi |
Parties | BATISTE v. STATE |
Where evidence fully discloses circumstances surrounding alleged assault to kill, instruction that law presumes malice from use of deadly weapon is erroneous.
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.
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 infinitesimal part of the testimony as to be of no weight whatsoever. In the light of all of this testimony it appears that all of the facts and circumstances surrounding this killing have not been shown and comes within the class of those killings which have not been explained.
If there has been that full disclosure, which the law requires, then under the former decisions of this court there is nothing else to do but submit that this conviction should be reversed.
The appellant was convicted in the circuit court of Lincoln county on an...
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