Cumberland v. State

• Decision Date: 14 February 1916
• Docket Number: 18245
• Citation: 110 Miss. 521,70 So. 695
• Court: Mississippi Supreme Court
• Parties: CUMBERLAND v. STATE

70 So. 695

110 Miss. 521

CUMBERLAND v. STATE

No. 18245

Supreme Court of Mississippi

February 14, 1916

APPEAL from the circuit court of Neshoba county. HON. C. L. DOBBS Judge.

E. L Cumberland was convicted of murder and appealed.

The facts are fully stated in the opinion of the court,

Reversed and remanded.

G. E Wilson, for appellant.

Instruction number 7 to the jury is as follows, to-wit: "The court charges the jury for the state, that if the jury believes from the evidence beyond a reasonable doubt that Cumberland with a pistol, shot Lidell, and thereby killing him, then the use of a deadly weapon is prima facie evidence of malice and an intent to murder, and before this presumption is ever overcome it must be shown by the evidence in the case to the satisfaction of the jury, that at the time of such shooting with said deadly weapon, the defendant was in immediate, real or apparent danger of losing his life or suffering great bodily harm from Lidell, and such danger must have been urgent, present and imminent at the moment of the killing." The instruction violates one of the most sacred rights of defendant and absolutely deprives him of same in the consideration of this cause, by placing upon him the burden of proving his innocence. It is not the law, and never has been the law of Mississippi as we understand it, that the burden of proof in a criminal case, especially one of the magnitude of the case at bar, shifts to the defendant. In the instruction complained of the state requires the defendant to show by the evidence in the case to the satisfaction of the jury that he was in immediate danger of losing his life. The same instruction is perhaps more serious and more objectionable for the reason that it tells the jury that the danger under which appellant was placed at the time he took the life of deceased must have been urgent, present and imminent at the moment of the killing, absolutely excluding the well-established rule, and depriving the defendant of that benefit, which gave him the right to act when his danger is actual or apparent. This court has universally held to the rule, so far as we are able to ascertain, that when the danger to which defendant is subject is either real or apparent to a reasonable man under the circumstances presented to him, then he is under the law entitled to protect himself against an attack. It has never been the law that the defendant must be in actual danger, but if the danger only be reasonably apparent, then he is justified in acting; and yet the instruction complained of tells the jury not only that he must be in actual danger but that it must be urgent, present, and imminent at the very moment of the killing. Blalock v. State, 79 Miss. 520; Ellis v. State, 66 Miss. 44; Haley v. State, 63 So. 670; Boykin v. State, 86 Miss. 481; Ford v. State, 73 Miss. 734, 19 So. 665; Herman v. State, 75 Miss. 340; Brandon v. State, 75 Miss. 905, 23 So. 517; Raines v. State, 81 Miss. 489, 33 So. 19; Riley v. State, 68 So. 250.

Instruction number 8 given for the state is as follows, to wit: "The court charges the jury for the state, that if the jury believe from the evidence beyond a reasonable doubt that Cumberland shot and killed Lidell as charged in the indictment at the place of the supposed crap game, then under the law it is your sworn duty to find the defendant guilty of murder." This instruction is equally erroneous, and contains two fatal defects, and which under the law as announced by this court are sufficient to reverse the case. In the first place, the jury is instructed to convict the defendant if they believe beyond a reasonable doubt that he killed Lidell as charged in the indictment. This instruction is calculated to mislead the jury composed of men unlearned in the law and to call their attention from the other instructions in the case. It eliminates any idea whatever of self-defense, since the condition might arise where malice existed and yet when the homicide occurred, the defendant was acting in self-defense. We submit that this instruction is misleading, unfair, and highly prejudicial to the rights of defendant, and especially should be refused in a case where the issue at stake is so grave as the one at bar. Again it has been condemned by our court, universally, for assuming a fact which is untrue, or at least in controversy. The jury is told that if the killing occurred at the place of the supposed crap game, that it is its sworn duty to find the defendant guilty. As has been shown in the discussion of the evidence in this case, there is no evidence of a crap game discovered on the day of the homicide, and not until a later day, all of which we have contended and still contend was inadmissible. As stated in the outset, the admission of this testimony was prejudicial, and it is now manifest to the court the purpose of injecting the crap game into the trial of this cause all through the taking of the testimony was to prejudice the minds of the jury; and in the instruction this purpose is manifest. Our courts have said that even where a question of fact is in controversy that it is error, and fatal error, for the court to instruct the jury in reference thereto. The learned district attorney manifestly injected this clause into the instruction for the purpose of enabling him to make a more effective and prejudicial argument to the jury. The logical effect this instruction would have had on any juror would have been that he considered it as an instruction or finding by the court itself that a crap game really did exist and was played by defendant and the deceased. Oliver v. State, 39 Miss. 523; Fore v. State, 75 Miss. 727; Cooper v. State, 31 So. 580.

In addition to Instructions numbered 7 and 8, given for the state, instruction 4, which is in the following language: "The court charges the jury for the state that murder is the killing of a human being with malice aforethought, and if the jury believe from the evidence, beyond all reasonable doubt, that Cumberland shot and killed Lidell and that the killing was done with malice aforethought, then he is guilty of murder and the jury should so find," is also fatally defective, in that it absolutely deprives the defendant of the right of self-defense. This instruction simply states an abstract proposition of law, when the proof in the case, both for the state and the defense, if the witness Jones' testimony is to be credited, shows that it was a controversy between the defendant and the deceased.

According to the contention of the defense, a full and complete case of self-defense was made, and yet the court by this instruction absolutely eliminated from the consideration of the jury the entire evidence of the defendant and his witnesses. Under no authority of law is the said instruction warranted, but is in conflict with every decision that we have been able to find rendered by this court.

For the fatal error in the instruction complained of for the state, we most earnestly insist that this case should be reversed.

Instruction number 12, as asked by the defendant and refused by the court, should have been given.

W. C. Easterling, for appellee.

Instruction number seven correctly announces the law. The instruction does not tell the jury that the burden of proof shifts. True it is that the burden of proof never shifts to the defendant. Under the law of this commonwealth an unexplained killing is murder. It has always been the law that malice is presumed from the deliberate use of a deadly weapon, and when the state proves the killing with a deadly weapon, the law presumes malice requisite to murder and the burden of procedure shifts. The instruction simply informs the jury that the law presumed malice from the use of a deadly weapon, unless the jury had a reasonable doubt from the evidence, that is, the whole evidence of the case, as to whether or not the defendant's life was in real or apparent danger at the hands of the deceased at the time of the killing. This instruction was given in Guice's case, 60 Miss. 714, by Judge Christman.

Instruction number six for the defendant told the jury that the presumption of innocence stood by the defendant throughout the trial, testifying as a witness as to his...