Blackwell v. State, No. 46617

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtGILLESPIE
Citation257 So.2d 855
Decision Date24 January 1972
Docket NumberNo. 46617
PartiesDannie M. BLACKWELL v. STATE of Mississippi.

Page 855

257 So.2d 855
Dannie M. BLACKWELL
v.
STATE of Mississippi.
No. 46617.
Supreme Court of Mississippi.
Jan. 24, 1972.

Daniel P. Self, Jr., Thomas L. Goldman, Goldman & Goldman, Meridian, for appellant.

A. F. Summer, Atty. Gen., by John M. Kinard, Sp. Asst. Atty. Gen., Jackson, for appellee.

GILLESPIE, Chief Justice:

Dannie M. Blackwell was tried for murder in the Circuit Court of Lauderdale County, Mississippi. The instructions submitted the issues of murder and manslaughter. He was found guilty of murder and sentenced to the penitentiary for life.

On the night of the homicide involved in this case, the defendant had been at a night club when the club closed about twelve o'clock. The deceased, Billy Roy Russell, was also a patron of the night club but the parties were not acquainted. As they were making their departure from the night club, some words passed between the accused and Russell, which appeared at most to be a minor argument, whereupon the accused drew his gun and shot Billy Roy Russell, fatally wounding him. The accused had recently retruned from combat service in Vietnam and was home on leave when the homicide occurred. His defense was insanity.

Defendant assigns as error the granting at the request of the state the following instruction:

The Court instructs the jury for the State that malice is implied by law from

Page 856

the nature and character of the weapon used and that the deliberate use of a deadly weapon in a difficulty not in necessary self-defense is in law evidence of malice.

One hundred twenty-five years ago this Court condemned a similar instruction. McDaniel v. State, 16 Miss. 401 (1847). A review of the digest reveals more than twenty cases where similar instructions have been held erroneous.

In Johnson v. State, 223 Miss. 167, 77 So.2d 824 (1955), this Court considered an instruction essentially the same as that involved in the present case. In that case the circumstances of the killing and the defense were strikingly similar in principle to the present case, and the Court found that the instruction was reversible error. In Johnson, the Court stated that the instruction was objectionable (1) because it stated that the deliberate use of a deadly weapon 'is in law, evidence of malice;' (2) because it was peremptory in character; and (3) because it presupposed the sanity of the accused. Recent decisions have condemned this instruction as reversible error, especially where all the facts are shown by...

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8 practice notes
  • Tran v. State, No. 92-KA-01058-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • August 22, 1996
    ...instructions." Carter v. State, 493 So.2d 327, 330 (Miss.1986) (citing Allison v. State, 274 So.2d 678 (Miss.1973); Blackwell v. State, 257 So.2d 855 (Miss.1972); Stewart v. State, 226 So.2d 911 (Miss.1969); Hydrick v. State, 246 Miss. 448, 150 So.2d 423 (1963); Funches v. State, 246 Miss. ......
  • Herron v. State, No. 47589
    • United States
    • United States State Supreme Court of Mississippi
    • January 7, 1974
    ...of the psychiatrists were not conclusive upon that issue.' 245 So.2d at 585. The most recent case on this issue is Blackwell v. State, 257 So.2d 855 (Miss.1972). There, the defendant entered a defense of insanity to a charge of homicide. The Court spoke to the issue as 'The other assignment......
  • Carter v. State, No. 55659
    • United States
    • United States State Supreme Court of Mississippi
    • July 30, 1986
    ...SULLIVAN, ANDERSON and GRIFFIN, JJ., concur. --------------- 1 Allison v. State, 274 So.2d 678 (Miss.1973); Blackwell v. State, 257 So.2d 855 (Miss.1972); Stewart v. State, 226 So.2d 911 (Miss.1969); Hydrick v. State, 246 Miss. 448, 150 So.2d 423 (1963); Funches v. State, 246 Miss. 214, 148......
  • Lias v. State, No. 50444
    • United States
    • United States State Supreme Court of Mississippi
    • August 23, 1978
    ...335 So.2d 904 (Miss.1976); Myrick v. State,290 So.2d 259 (Miss.1974); Jones v. State, 288 So.2d 833 (Miss.1974); Blackwell v. State, 257 So.2d 855 (Miss.1972); Smith v. State, 245 So.2d 583 (Miss.1971); and Kearney v. State, 224 Miss. 1, 79 So.2d 468 (1955). See Williams v. State, 354 So.2d......
  • Request a trial to view additional results
8 cases
  • Tran v. State, No. 92-KA-01058-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • August 22, 1996
    ...instructions." Carter v. State, 493 So.2d 327, 330 (Miss.1986) (citing Allison v. State, 274 So.2d 678 (Miss.1973); Blackwell v. State, 257 So.2d 855 (Miss.1972); Stewart v. State, 226 So.2d 911 (Miss.1969); Hydrick v. State, 246 Miss. 448, 150 So.2d 423 (1963); Funches v. State, 246 Miss. ......
  • Herron v. State, No. 47589
    • United States
    • United States State Supreme Court of Mississippi
    • January 7, 1974
    ...of the psychiatrists were not conclusive upon that issue.' 245 So.2d at 585. The most recent case on this issue is Blackwell v. State, 257 So.2d 855 (Miss.1972). There, the defendant entered a defense of insanity to a charge of homicide. The Court spoke to the issue as 'The other assignment......
  • Carter v. State, No. 55659
    • United States
    • United States State Supreme Court of Mississippi
    • July 30, 1986
    ...SULLIVAN, ANDERSON and GRIFFIN, JJ., concur. --------------- 1 Allison v. State, 274 So.2d 678 (Miss.1973); Blackwell v. State, 257 So.2d 855 (Miss.1972); Stewart v. State, 226 So.2d 911 (Miss.1969); Hydrick v. State, 246 Miss. 448, 150 So.2d 423 (1963); Funches v. State, 246 Miss. 214, 148......
  • Lias v. State, No. 50444
    • United States
    • United States State Supreme Court of Mississippi
    • August 23, 1978
    ...335 So.2d 904 (Miss.1976); Myrick v. State,290 So.2d 259 (Miss.1974); Jones v. State, 288 So.2d 833 (Miss.1974); Blackwell v. State, 257 So.2d 855 (Miss.1972); Smith v. State, 245 So.2d 583 (Miss.1971); and Kearney v. State, 224 Miss. 1, 79 So.2d 468 (1955). See Williams v. State, 354 So.2d......
  • Request a trial to view additional results

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