Hibbler v. State
| Decision Date | 29 January 1906 |
| Citation | 87 Miss. 362,39 So. 896 |
| Court | Mississippi Supreme Court |
| Parties | BRUCE HIBBLER v. STATE OF MISSISSIPPI |
November 1905
FROM the circuit court of Lafayette county, HON. JAMES B. BOOTHE Judge.
Hibbler the appellant, was tried for and convicted of an assault with intent to murder one Monroe Patterson, and appealed to the supreme court.
The instruction referred to in and condemned by the opinion of the court was in these words:
"The court instructs the jury, for the state, that if they believe from the evidence beyond a reasonable doubt that the defendant with deliberate design shot at Monroe Patterson not in self-defense, either real or apparent, and that the gun at the distance it was fired would likely produce death, then the presumption of law is that he intended to kill the said Monroe Patterson, and the jury should find the defendant guilty as charged in the indictment; but if the jury believe that the gun was so loaded that it would not likely produce death at the distance it was fired, but that the defendant was not shooting in self-defense, either real or apparent, then the defendant would be guilty of assault and battery only, and the form of their verdict should be: 'We, the jury, find the defendant guilty of assault and battery only.'"
Reversed and remanded.
Kimbrough & Thomison, for appellant.
The instruction for the state undertook to charge the jury as to the presumption of law arising from the use of a deadly weapon, the effect of which was that if defendant intentionally, and not in self-defense, fired the gun at Patterson at a distance of fifty feet, and if the gun at that distance would likely produce death, then the presumption of law is that he intended to kill, etc., and they should find him guilty as charged. The jury should have been left free to consider whether the testimony offered by the accused to rebut this legal presumption, or otherwise submitted to them on the part of the state, satisfied their minds of the absence of such intention. Jeff v. State, 37 Miss 321. Further, this instruction ignores altogether the contents of the gun, when the law is that it must be proven that the gun was so loaded as to be capable of producing death. Vaughn v. State, 3 Smed. & M., 553; Porter v. State, 57 Miss. 300.
R. V. Fletcher, assistant attorney-general, for appellee.
The objection to the charge given for the state rests upon the contention that it precludes the...
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...appellant's mind to effect the death of Applewhite. It merely instructed the jury on the weight of the evidence. In the case of Hibbler v. State, 87 Miss. 362, S.C., So. 846, in a terse and clear opinion delivered by Justice TRULY, the court set out the things which a jury must believe in o......
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Gentry v. State
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