Davis v. State

• Decision Date: 11 November 1940
• Docket Number: 34275
• Citation: 189 Miss. 768,198 So. 572
• Court: Mississippi Supreme Court
• Parties: DAVIS v. STATE

198 So. 572

189 Miss. 768

DAVIS v. STATE

No. 34275

Supreme Court of Mississippi

November 11, 1940

Suggestion Of Error Overruled November 25, 1940.

APPEAL from the circuit court of Greene county, HON. ARTHUR G BUSBY, Judge.

Hubert Davis was convicted of murder, and he appeals. Affirmed.

Affirmed.

Earle L. Wingo, of Hattiesburg, for appellant.

We do not feel that there was sufficient testimony before the jury upon which to predicate a conviction of the crime laid in the indictment for the reason that the testimony shows that the appellant did not use any deadly instrument whatever in pursuing his part of the alleged assault. For this reason we earnestly feel that the motion for a peremptory instruction of not guilty should have been sustained, and because of the error in refusing to grant the same the appellant should receive a new trial.

One of the instructions for the State directed the jury to find the appellant guilty of murder merely if they believe that the appellant was present and aided, assisted and encouraged such killing. This is an improper statement of the law because it eliminates the necessary element of a felonious intent on the part of the appellant and the commission of an act feloniously and with malice aforethought by the appellant to commit the crime of murder. Under this instruction if the jury believed that the deceased was killed with malice aforethought by the act of another then the jury would only have to further believe, under said instruction, that the appellant was present and aided, assisted and encouraged such killing in order to find him guilty of murder. We submit that the instruction is fatally defective on this point.

Another instruction is in the following language: "The court instructs the jury for the state that each person present at the time of, and consenting to and encouraging, the commission of a crime, and knowingly, wilfully and feloniously doing any act which is an ingredient in the crime or immediately connected with it, or leading to its commission, is as much a principal as if he had with his own hand committed the whole offense."

We submit that the above instruction is confusing for the reason that since the appellant was being tried for the crime of murder the jury is told in substance that they would be warranted in finding the appellant guilty of murder merely because the proof may have shown that the appellant was present at the time of and consenting to and encouraging the commission of the crime. The instruction was highly misleading and does not state the law.

W. D Conn, Jr., Assistant Attorney-General, for appellee.

The evidence fully established the corpus delicti of murder and had pointed out appellant as one of the criminal agents. Under such circumstances, it would have been improper for the court to have excluded this evidence and directed a verdict of not guilty.

Both of the instructions complained of state the law with reference to persons who aid and abet the commission of an offense. This law is particularly applicable to the facts of the case at bar where it appears...