Gee v. State
| Decision Date | 07 April 1902 |
| Citation | 31 So. 792,80 Miss. 285 |
| Court | Mississippi Supreme Court |
| Parties | JESSE GEE v. STATE OF MISSISSIPPI |
FROM the circuit court of Bolivar county. HON. FRANK A. LARKIN Judge.
Jesse Gee, appellant, was indicted for the murder of one Taylor Nicholson, in October, 1901. He was tried, convicted, and sentenced to death, from which conviction and sentence he appealed to the supreme court.
On the trial the state's evidence showed that appellant had been intimate with a woman, Lucy McKeever, before his marriage to another woman. After appellant married, Nicholson, the deceased, took up with Lucy, and was visiting her. On the night of the killing Gee was at Lucy's house, and a short time after he left a pistol was heard near the gallery of the house, and Lucy and her mother, who were in the house testified that Gee ran around the house, and said: "If you tell this in forty years, I will kill you." It was also shown that appellant had exchanged a gun for a pistol a short time before the killing. There was no eye witness to the killing. Nicholson was found dead near the doorsteps of Lucy McKeever's house the next morning after the witnesses heard the pistol shot.
The instruction No. 2 for the state, referred to in the opinion of the court, is as follows:
"The court instructs the jury that every homicide is presumed in law to be malicious, and therefore murder; and, when the killing by defendant with a deadly weapon has been proved by the evidence beyond a reasonable doubt, the law will presume the malice requisite to constitute murder, and it is then incumbent upon the defendant to show some circumstances of justification, alleviation, or excuse, unless these arise out of the evidence adduced against him."
Reversed and remanded.
F. A Montgomery, for appellant.
Upon the testimony the second instruction given for the state is wrong, and could not fail to prejudice the defendant's case in the minds of the jury.
The instruction cannot be given without serious prejudice to the rights of a defendant who denies that he has committed the homicide with which he is charged, and which must first be proved to the exclusion of every reasonable doubt, before the degree of guilt can be ascertained.
It cannot be said in the case at bar that the instruction is anywhere modified or its fault cured by any other instruction given either for the state or defendant, nor can it be said from this record that the evidence fixing the homicide with which the appellant was charged, upon him, is so clear and conclusive that the verdict of the jury will not be disturbed because substantial justice has been done.
Monroe McClurg, Attorney-General, for appellee.
Instruction No. 2 given for the state is a correct enunciation of the law under the facts in this case. Bishop v. State, 62 Miss. 289; ...
To continue reading
Request your trial
-
Hendrieth v. State, 45557
...said: 'It is erroneous, however, to give this instruction, where it may be misleading under the facts, (as in the case of Gee v. State, 80 Miss. 285, 31 So. 792) or in a case where malice is an essential element of the crime charged, and where all of the facts are known and detailed in evid......
-
Shields v. State, 42239
...p. 874. It is erroneous, however, to give this instruction, where it may be misleading under the facts, (as in the case of Gee v. State, 80 Miss. 285, 31 So. 792) or in a case where malice is an essential element of the crime charged, and where all of the facts are known and detailed in evi......
-
Gladney v. State, 42544
...pivotal issue. With such understanding, the jury would necessarily conclude that malice aforethought could be presumed. Gee v. State, 80 Miss. 285, 31 So. 792 (1902); Johnson v. State, 223 Miss. 167, 77 So.2d 824 (1955). Instructions of this type may be so misleading to the jury, as here, a......
-
Funches v. State
...pivotal issue. With such understanding, the jury would necessarily conclude that malice aforethought could be presumed. Gee v. State, 80 Miss. 285, 31 So. 792 (1902); Johnson v. State, 223 Miss. 167, 77 So.2d 824 (1955). Instructions of this type may be so misleading to the jury, as here, a......