Herman v. State

• Decision Date: 03 January 1898
• Citation: 22 So. 873,75 Miss. 340
• Court: Mississippi Supreme Court
• Parties: JOHN HERMAN v. STATE OF MISSISSIPPI

22 So. 873

75 Miss. 340

JOHN HERMAN v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

January 3, 1898

December 1897

FROM the circuit court of Harrison county HON. THADDEUS A. WOOD Judge.

The appellant was indicted for the murder of one Minnie Swan. Upon the trial the court gave the state an instruction number 3, which was in these words: "Every homicide is presumed, in law, to be malicious, and therefore murder; and when the killing has been proven to the satisfaction of the jury, and beyond every reasonable doubt, the law will presume the malice requisite to murder, and the burden of proof is then shifted to the defendant to show some circumstance of alleviation, justification, or excuse, unless these arise out of the evidence which has been adduced in the case. The sixth instruction given for the state was as follows, viz "While it is true that the state must make out its case to the satisfaction of the jury, and beyond every reasonable doubt, yet it is also true, that the doubt which should induce a juror to withhold a verdict of guilty, must be a reasonable doubt; must be a doubt for which a reason can be given, a doubt which reasonably arises out of all the testimony in this very case."

The defendant requested the court to give, but the court refused the following instruction, numbered 1, viz.: "The court instructs the jury that, where the state relies on circumstances for a conviction, the circumstances must be such as apply exclusively to the defendant and such that would exclude all reasonable doubt as to defendant's guilt, and if the state has not done this and you have still a reasonable doubt in your mind, then you must acquit defendant."

The defendant was convicted, sentenced to the penitentiary for life and appealed to the supreme court.

Reversed and remanded.

Mayes & Harris, for appellant.

The third instruction is a copy of the fourth one in Hawthorn's case, 58 Miss. 778, 780. And it is true that in said case this court declared that the instructions for the state, except specific ones, were unexceptionable. But we respectfully submit that the instruction--the third one in this case--was objectionable and illegal, and that it was an inadvertence in the court to accept it as good in Hawthorn's case. It was a very natural inadvertence. The objection which was urged to the instruction in that case was not the objection which we shall now present; and in pronouncing upon it the court was speaking diverso intuitu; and the decision of the objections made there was correct.

The point made there against the instruction was that it was error to say that the mere proof of killing raised a presumption of malice; and that was the question on which the court held that it was unobjectionable--a holding with which we make no quarrel. But the point we now present was not urged.

There are three main propositions involved in the instruction: [1] Every homicide is presumed in law to be malicious, and, therefore, murder; and when the killing has been proved beyond a reasonable doubt, the law will presume the malice requisite to murder; [2] and, unless circumstances of alleviation, justification or excuse arise out of the evidence adduced in the case, then [3] the burden of proof is shifted to the defendant to show some circumstance, etc. Now, this instruction can only mean this: That when the state shall have closed its case, unless the testimony of the state discloses circumstances of alleviation, etc., the burden of proof shifts to the defendant to show them. A jury would certainly so understand the instruction, and would understand that the defendant must show it by testimony. We affirm that the burden of proof never does shift in a criminal case. Ford v. State, 73 Miss. 734-739. But the still more serious fault is that it lays on the defendant too heavy a burden in asserting that he must show circumstances of alleviation. The jury can only understand the word "show" to mean that he must prove circumstances of alleviation. The true rule is announced in the Hawthorn case itself, page 787. "We do not regard as correct, " said the court, "the statement in the opinion in Head v. State, that the true rule is: 'If there be no justification or excuse for the homicide by the accused shown in the evidence adduced by the state, then the accused is guilty of murder, unless he has by his evidence proved excuse or justification. The true rule is that the accused should be convicted if from the whole evidence there is not a reasonable doubt of his guilt.'"

To put it in a nutshell: the vice of the instruction is that it requires the defendant to show or prove his circumstances of alleviation, instead of allowing him simply to raise a reasonable doubt from the evidence as a whole. A second very serious objection to this instruction is this: In the Hawthorn case, as we understand it, there was no controversy over the fact that the accused did the killing. Here the agency of the accused in the killing is the principal fact in controversy, and the attempt of the state is to connect the accused with it by circumstantial evidence only. The instruction necessarily assumes this very fact. It tells the jury, in plain language, that "when the killing has been proven to the satisfaction of the jury, " etc., then that "the burden of proof is then shifted to the defendant to show some circumstance, " etc. Nowhere is the defendant given the benefit of the doubt as to his agency in the killing, even after the killing is shown. Non constat that the woman may have been killed by some other than the defendant, yet the defendant, because it is shown that she was murdered, is required to show that he had an excuse for killing her. Non constat but that she may have killed herself, yet the jury is told that the only predicate necessary for the state to lay is to show that she was killed. Greenleaf's Ev., vol. 3, sec. 134. There was no evidence offered by the state of the physical signs of a struggle, or any indicia to negative the possibility of suicide; and that was within the domain of a reasonable doubt. The jury should, in some way, have been warned in this instruction that they must believe that the killing was done by the accused. That was the very point in the case. Webb v. State, 73 Miss. 456.

The sixth instruction for the state is clearly within the express condemnation of Knight v. State, 74 Miss. 140. Just as in the Knight case, so here, the very point at issue is the want of proper evidence connecting the accused with the killing. Both were cases of circumstantial evidence, turning on the question of the identity of the slayer with the accused in this case; of the two horses in the Knight case. The principle of the two cases is exactly the same.

The court refused the defendant's first instruction Unquestionably it should have been given. It simply announced the doctrine that, in a case of circumstantial evidence, in order to convict the accused, the testimony must connect the accused with the homicide beyond a reasonable doubt. The court seems to have shied at the expression, "the circumstances must be such as to apply exclusively to the defendant." That expression puts it pretty strongly; but it is the law, and the defendant has a right to it and he asked it. Lamar v. State, 64 Miss. 428 Webb v. State, 73 Miss. 456-460.

We submit that it was error in the court to allow the admission of the knife offered in evidence by the state. 85 Va., 607; 61 Vt., 153; 89 Iowa 182; 94 Iowa 646; 91 Ga., 277; 94 Ala. 68; 103 Ala. S. It cannot be said that the prisoner was not prejudiced. The knife paraded before the jury in that connection must have been a grewsome object.

Wiley N. Nash, attorney-general, for appellee.

Appellant and the woman he was convicted of having murdered had beyond question lived in unlawful cohabitation. It appeared equally as certain that at the time of the murder there had been an estrangement between them. In ...