Burt v. State

• Decision Date: 12 November 1894
• Citation: 72 Miss. 408,16 So. 342
• Court: Mississippi Supreme Court
• Parties: SAM. BURT v. THE STATE

16 So. 342

72 Miss. 408

SAM. BURT v. THE STATE

Supreme Court of Mississippi

November 12, 1894

October 1894

FROM the circuit court of Attala county. HON. C. H. CAMPBELL Judge.

Appellant Burt, was convicted of the murder of Jesse Evans, and sentenced to life imprisonment. The conviction rests mainly on circumstantial evidence. There was also certain testimony tending to show a threat by accused against deceased. Evans the deceased, had been charged with the killing of one Ryals, a half-brother of Burt, the accused. One McGlaum, a witness for the state, testified that soon after Ryals was killed, he met accused, and remarked to him that he had heard that his half-brother had been killed, and he, the witness, had heard that Evans had killed him; whereupon Butt said, "Yes, but there is a hereafter." The state then asked witness if he did not remonstrate with Butt. This question was objected to by the defense, but the objection was overruled by the court, and the question permitted, in order to see what, if anything, defendant said in reply. Witness answered that he did remonstrate with the accused, and told him he ought not to talk in that way, and that accused said nothing but "kinder laughed."

The second instruction given for the state is as follows: "While it is the law that, before the jury can find the defendant guilty, they must believe him so from the evidence beyond a reasonable doubt, still, if they conscientiously believe him guilty, all requirements of the law are met, and they believe him guilty beyond a reasonable doubt."

It is not deemed necessary to set out in full the seventh, eighth and ninth instructions asked for by the defense and refused by the court. Each of them singled out a part of the testimony, and informed the jury that it alone was not enough to warrant a conviction.

Reversed, and cause remanded.

W. A. Haden, for appellant.

I submit that the evidence raises only a suspicion of appellant's guilt. There is no positive evidence, but merely circumstances tending to show a motive, and certain vague threats against deceased. The first instruction for the state tells the jury, without qualification, that the law makes no distinction between circumstantial and positive evidence. The jury should at least have been admonished that, in the application of circumstantial evidence, the utmost caution and vigilance should be used. Algheri v. State, 25 Miss. 583; Pitts v. State, 43 Ib., 472; Caleb v. State, 39 Ib., 721; Josephine v. State, Ib., 613.

It was error to allow the witness, McGlaum, to state what he said to accused, or that he remonstrated with him. This was calculated to impress the jury with the idea there was something terrible in what accused had said. This error is material, in view of the weak circumstantial testimony oh which the conviction rests.

Franck Johnston, attorney-general, for the state.

I submit that, on the evidence, the court cannot reverse the case. There was no error in permitting McGlaum to testify as to the threat by accused against deceased, and as to what he said. The entire testimony was immaterial and unprejudicial.

The instructions for the state are correct. The first announces the correct rule of law as to circumstantial evidence; the second merely states the rule as to a reasonable doubt; the eighth, ninth and tenth instructions for the state are on the weight of evidence, and were properly refused.

OPINION

WHITFIELD, J.

It is assigned for error that the court erred in granting the second instruction asked by the state. We held, at this term in Brown v. State, ante, p. 95, that this instruction is erroneous. The facts of this case, a case in which the evidence consists of vague threats and circumstantial evidence, emphasize with peculiar force the correctness of that ruling. This certainly is a case in which we cannot say such charge was not material, reversible error. The many unwise efforts to define a reasonable doubt are very remarkable, in view of the previous decisions of this court and of other courts, and of the fact that the phrase itself, "beyond a reasonable doubt," is "an expression invented by the common law judges, for the very reason that it was capable of being understood and applied by plain men in the jury box." 2 Thomp. Trials, § 2463. If the common law judges in their wisdom settled on this expression--"beyond a reasonable doubt"--as the one most easily understood by "plain men in the jury box," can we not accept this refined gold without seeking to "gild" it--this "lily" without "painting?" Campbell, J., in Hamilton v. People, 29 Mich. 173, says: "If a jury cannot understand their duty when told they must not convict when they have a reasonable doubt of the prisoner's guilt, they can very seldom get any help from such subtleties as require a trained mind to distinguish. Jurors are presumed to have common sense, and to understand common English, but they are not presumed to have professional or any high degree of technical or linguistical training." Mr. Thompson says (2 Thomp. Trials, § 2463, p. 1817): "Most American courts...