Brandon v. State

• Decision Date: 02 May 1898
• Court: Mississippi Supreme Court
• Parties: JORDAN BRANDON v. THE STATE OF MISSISSIPPI

23 So. 517

75 Miss. 904

JORDAN BRANDON v. THE STATE OF MISSISSIPPI

Supreme Court of Mississippi

May 2, 1898

March 1898

FROM the circuit court of Monroe county HON. E. O. SYKES, Judge.

John Brandon was indicted for the murder of his son, George Brandon. On the trial of the case, the court below, acting under code 1892, § 1384, caused the arrest, in the presence of the jury, of Lucy Brandon, a witness for the state, for palpable perjury, committed on the hearing. The section of the code providing for the arrest of palpable perjurers is copied in the report of the case of Golden v. State, ante, 130. The tenth instruction for the state, referred to in the opinion, was in these words "10. If the jury believe from the evidence, beyond a reasonable doubt, that the deceased had his pistol drawn, and that Jordan Brandon unnecessarily killed deceased while resisting or attempting to resist the deceased in the commission of a felony, or some great bodily harm to him, the defendant, the jury will find the defendant guilty of manslaughter."

The defendant was convicted of manslaughter, and appealed to the supreme court. The state prosecuted a cross appeal complaining of the refusal of the court below to give the sixth instruction asked by the state, to which the opinion refers; said instruction was as follows: "6. The court instructs the jury that every homicide is presumed in law to be malicious, and therefore, murder, and when the killing has been proven beyond a reasonable doubt, the law will presume the malice requisite to murder, and the burden of the proof is then shifted to the defendant to show some circumstances of alleviation, justification or excuse, unless these arise out of the evidence which has been adduced against him on the part of the state."

Judgment reversed and cause remanded.

George C. Paine and Alexander & Alexander, for appellant.

The court erred in ordering the witness, Lucy Brandon, to jail in the hearing and presence of the jury and during the trial of the case. Golden v. State, ante, p. 130; Chase v. State, ante, p. 502. The case at bar and the case of Golden are very similar; it looks as if one was made just for the other. It can make no difference that the state called the witness to the stand; her testimony was favorable to the defense. There is error in the tenth instruction for the state. State v. Long, 52 Miss. 23.

W. N Nash, attorney-general, for the state.

The court will notice that the state had a cross appeal in this case, based upon the action of the court below in refusing the sixth instruction asked for the state. This charge was proper, and eminently proper in view of the facts in this cause.

The appellant assigns for error the action of the circuit court in ordering Lucy Brandon to jail in the presence aud hearing of the jury and during the trial of the case. The court will bear in mind that Lucy Brandon was a witness for the state,...