Hood v. State

• Citation: 155 So. 679,170 Miss. 530
• Decision Date: 11 June 1934
• Docket Number: 31077
• Court: Mississippi Supreme Court
• Parties: HOOD v. STATE

155 So. 679

170 Miss. 530

HOOD v. STATE

No. 31077

Supreme Court of Mississippi

June 11, 1934

Division B

1. CRIMINAL LAW.

Where presumption or inference is one of fact merely, court is not warranted in declaring it to jury as a presumption authoritatively raised by law.

2. CRIMINAL LAW.

Although instruction may be correct as legal proposition, it should not single out for prominent presentation to jury certain portions of testimony thereby giving undue emphasis to parts of testimony, unless parts singled out are so completely sufficient within themselves that the ultimate issue may be determined solely upon them, if found to be true.

3. CRIMINAL LAW.

Instructions which charge upon weight of evidence should not be given except where they involve nature of judicial proceedings and technical proprieties, legal presumptions, or cautionary instructions.

4. CRIMINAL LAW.

Instruction that law presumed that man of more dangerous character was more likely to make deadly assault than man of peaceable disposition, and that opposite party, knowing of dangerous character, might justly resort to more prompt measure of self-preservation against person of such dangerous character held properly refused as charge upon weight of evidence.

HON. D M. ANDERSON, Judge.

APPEAL from circuit court of Scott county HON. D. M. ANDERSON Judge.

Jerry Hood was convicted of an offense, and he appeals. Affirmed.

Affirmed.

Frank F. Mize, of Forest, and Webb M. Mize, of Gulfport, for appellant.

The evidence is undisputed that defendant killed deceased in defense of his brother from meeting his death.

Blackledge v. State, 127 So. 684; Wesley v. State, 120 So. 918; Weathersby v. State, 147 So. 481; Walters v. State, 122 So. 189.

The court below erred in refusing to grant an instruction for the appellant to show that he had the right to act in the defense more promptly when the deceased was a man of violent character.

L. R. A. 1916A 1251; Garner v. State, 28 Fla. 113, 29 Am. St. Rep. 332, 9 So. 835; Pritchett v. State, 22 Ala. 39, 58 Am. Dec. 250; Bullington v. State, 69 So. 319; Karr v. State, 100 Ala. 4, 46 A. S. R. 17, 14 So. 851; Storey v. State, 71 Ala. 329; De Arman v. State, 71 Ala. 351; Perry v. State, 94 Ala. 25, 10 So. 650; State v. Pearch, 15 Nev. 188; State v. Marcy, 25 Ore. 241, 35 P. 655, 36 P. 573; Hudson v. State, 6 Tex.App. 565, 32 Am. Rep. 593.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

The most that can be said, so far as appellant is concerned, is that there is a direct conflict in the evidence; in fact, some of the testimony for the defendant tends to strengthen, instead of weaken, the theory of the state.

The judge in any cause, civil or criminal, shall not sum up or comment on the testimony, or charge the jury as to the weight of evidence, etc.

Section 586, Code of 1930; Section 732, Code of 1892; Maston v. State, 83 Miss. 647.

The instruction which was refused in the case at bar undertakes to tell the jury the reason for which certain testimony was admitted, the same thing being attempted in the Maston case.

Argued orally by F. F. Mize, for appellant, and by W. D. Conn, Jr., for the state.

OPINION

Griffith, J.

There are three assignments of error: First, that the court erred in refusing to direct a verdict of acquittal. We have examined the evidence, and find it ample to avoid a peremptory charge. Second, that the court erred in granting the state's third instruction. Whatever inaccuracy or obscurity there may be in that instruction was well cured by the elaborate and clearly drawn instructions granted at the request of the defendant. Third, that the court erred in refusing the following instruction requested by the defendant: "The court instructs the jury for the defendant that the reputation for peace and violence of the deceased, Henry Eagan, in the community in which he lived is competent to be shown because the law presumes that a person who by nature is violent, vehement and oppressive, is more dangerous in an altercation than a quiet and peaceable man, and this may always be established by evidence of the reputation of the deceased, and if it be shown to your satisfaction in this case that the deceased, Henry Eagan, had a bad reputation for peace and violence, and that said reputation was known to the defendant, Jerry Hood, then the defendant had a right to act more quickly than he would have had if his brother's adversary had been a quiet and peaceable man."

It is said that the instruction announces a correct principle of law, and cases such as Garner v. State, 28 Fla. 113 9 So. 835, 29 Am. St. Rep. 332, and Pritchett v. State, 22 Ala. 39, 58 Am. Dec. 250, are cited in support thereof. That it states a correct principle of adjudication is true, but the language is inaccurate in its import that there is a legal presumption in respect to the facts mentioned. The presumption is one of fact, is a permissible inference, not a fixed legal presumption; and while the court may charge upon fixed presumptions of law, it is not allowable that a special charge upon inferences or the weight to be attached thereto, contrary to the rule hereinafter to be stated, may be given; that is to say, upon presumptions of fact, and this prohibition is not to be avoided by a recital that the law presumes, as is observed in the quoted instruction. Where a presumption or inference is one of fact merely, the court is not warranted in...