Burnett v. State

• Decision Date: 04 May 1908
• Citation: 46 So. 248,92 Miss. 826
• Court: Mississippi Supreme Court
• Parties: JOHN BURNETT v. STATE OF MISSISSIPPI

46 So. 248

92 Miss. 826

JOHN BURNETT v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

May 4, 1908

March 1908

FROM the circuit court of Franklin county, HON. MOYSE H WILKINSON, Judge.

Burnett appellant, a negro, was indicted and tried for the murder of one Robert Turner, was convicted and sentenced to the penitentiary for life and appealed to the supreme court.

The killing occurred at a negro wedding where a large crowd of colored people had congregated. A difficulty arose between two of the guests, and several shots were interchanged. According to the state's testimony, appellant stood outside of the house, and shot through a window into a crowded room, the bullet from appellant's pistol striking Turner and killing him. Appellant's defense was an alibi. The instructions referred to in the opinion are as follows:

"No 1. The court instructs the jury for the defendant that malice aforethought is a necessary element in a charge for murder, and unless you believe from the evidence in this case beyond all reasonable doubt that the defendant John Burnett, willfully, unlawfully, feloniously, and of his malice aforethought shot and killed Robert Turner, then you must acquit the defendant."

"No. 2. The question in the case is whether defendant stood near the window on the gallery of the house as sworn to by witnesses, and with his malice aforethought shot and killed Robert Turner, and if there is a reasonable doubt as to whether he did this or not, you should find the defendant not guilty."

Reversed and remanded.

Clem V. Ratcliff, for appellant.

The court below erred in not granting the first and second instructions asked by appellant. The jury should be allowed to determine whether a homicide was committed willfully, feloniously and of malice aforethought. Bishop Crim. Law, 384; Green v. State, 28 Miss. 687; Head v. State, 44 Miss. 741; Evans v. State, 44 Miss. 762; Hawthorne v. State, 58 Miss. 778; Bishop v. State, 62 Miss. 289.

George Butler, assistant attorney-general, for appellee.

The vice in the first instruction asked by appellant is that by it the appellant sought to have the jury advised that premeditated design to cause the death of Turner, or at least to cause him some bodily harm, was a necessary ingredient of the crime. Strickland v. State, 81 Miss. 134, 32 So 921; Wood v. State, 81 Miss. 408, 33 So. 285. Under the statutes of our state it is not necessary that the state should show in evidence a deliberation or premeditated intent on appellant's part to kill the deceased. If the dangerous act is proved to have been done maliciously, and death ensues from such act, the crime is murder. Appellant cannot be heard...