Herring v. State

• Decision Date: 10 March 1924
• Docket Number: 23826
• Citation: 134 Miss. 505,99 So. 270
• Court: Mississippi Supreme Court
• Parties: HERRING v. STATE

99 So. 270

134 Miss. 505

HERRING v. STATE

No. 23826

Supreme Court of Mississippi

March 10, 1924

Division B

APPEAL from circuit court of Jones county, HON. R. S. HALL, Judge.

Proceeding between Dan Herring and the state. From the judgment rendered, the former appeals. Reversed and remanded.

Reversed and remanded.

Pack &amp Pack, for appellant.

The trial court erred in granting Instruction No. 2 for the state. This instruction is fatally erroneous. The instruction was highly prejudicial to the defendant in that it took no notice whatever of the essential elements of the crime charged. We submit that appellant might have been guilty of all the acts charged in this instruction, and still not have been guilty of the crime charged in the indictment. This instruction tells the jury that if, after the first difficulty, appellant and Odom "had another difficulty in which defendant cut and wounded the prosecuting witness Prent Odom, then you must find defendant guilty as charged, unless you further believe beyond a reasonable doubt from the evidence that defendant was not acting in his necessary self-defense."

There are three essential elements in the crime charged in the indictment: First, appellant must have acted of his malice aforethought; Second, there must have been a deliberate design to effect the death of Odom; Third, the weapon used must have been a deadly weapon.

It will be noticed that the above instruction does not recognize any of these elements. It says nothing whatever about the element of malice, and nothing about the intent to kill and murder. Certainly it cannot be denied that these two elements must have been present before there could be any crime.

As to the necessity of the element of malice, we find the rule clearly stated in 21 Cyc. 782. As to the necessity of the intent to kill and murder, the rule is clearly laid down in 21 Cyc. 782. 13 R. C. L. 799, announces the principle in these words: "The authorities are agreed on the general proposition that in a prosecution for assault with intent to kill or murder, the specific intent to take life is the gist of the offense. This intent must be charged in the indictment, and must be proved as charged. The jury should be instructed that before they can return a verdict of guilty, they must be convinced from the evidence that the accused entertained a design to kill."

If it be argued that the existence of malice aforethought, and of the intent to kill are presumed from the use of a deadly weapon, we answer that this instruction says nothing whatever about the weapon used, that is, whether it was a deadly weapon or not. Certainly this proposition should have been included in the instruction. One of the clearest expressions of our court upon this subject is found in Hibbler v. The State, 87 Miss. 362, 39 So. 896.

Harry M. Bryan, Assistant Attorney-General, for the state.

Instruction No. 2, for the state, while possibly loosely drawn, was not prejudicial to the defendant when read with all the instructions given for the state and defendant, and could not possibly constitute reversible error. It was not necessary for the court to include in each of its instructions every constituent element of the crime. This requirement would, as a general rule, so burden the mass of instructions in criminal cases as to render them not only well-nigh unintelligible, but would practically guarantee that juries would not read them, especially if many instructions are asked for the state and defense.

If the instruction complained of was not full and complete, it was most certainly cured by the instruction granted by the court for the defendant. Instructions No. 4, 6, and 8 given for the defendant are models of clearness and nicety of language and expression. They fully protected the defendant from any possible attempt by the jury to convict simply because they believed beyond a reasonable doubt that the defendant cut and wounded the prosecuting witness.

The test is, of course, whether or not the giving of a particular instruction worked to the prejudice of the defendant. It was held in Turnage v. Mississippi, 1 Miss. Dec. 532, that a verdict which is manifestly right will not be disturbed because an instruction given for the state is inaccurately drawn, when an instruction given for the defendant clearly states the same proposition.

It was held in Rosamond v. State, 1 Miss. 122, that even a palpably erroneous instruction for the state, when taken alone, will not cause reversal when the instructions given for the defendant give him the benefit of the principles of law he is entitled to. See, also, Sullivan v. State, 46 So. 248; Adams v. State, 24 So. 386; Hemingway v. State, 68 Miss. 371; Arbuckle v. State, 31 So. 440.

We respectfully submit that there is no reversible error in the record.

OPINION

ETHRIDGE, J.

The appellant was indicted for assault and battery with intent to kill and murder one Prent Odom. The facts surrounding the...