Joslin v. State

• Decision Date: 09 May 1898
• Citation: 23 So. 515,75 Miss. 838
• Court: Mississippi Supreme Court
• Parties: BURG JOSLIN v. THE STATE OF MISSISSIPPI

23 So. 515

75 Miss. 838

BURG JOSLIN v. THE STATE OF MISSISSIPPI

Supreme Court of Mississippi

May 9, 1898

March 1898

FROM the circuit court of Tishomingo county HON. E. O. SYKES Judge.

Burg Joslin, appellant, was indicted for murder, convicted of manslaughter, and appealed to the supreme court. The state prosecuted a cross appeal. The facts are stated in the opinion of the court.

Reversed and remanded.

Candler & Candler, for appellant.

If under seven years old, a person is doli incapax; between seven and fourteen years of age he is prima facie doli incapax. In such case, the trial for crime of one prima facie doli incapax, the evidence must show, to warrant conviction beyond a reasonable doubt, that the accused was at the time capable of committing the crime, and had a guilty knowledge of the crime charged. 4 Blackstone's Com., 24; 4 Am. & Eng. Enc. L., p. 684, note 3, and authorities there cited.

The first instruction given for the state was erroneous. There is no room for implied malice in this case. It will not do to say that the error of the instruction was cured by the other instructions. The other instructions do no more than contradict the first one, and left the jury to select between irreconcilable directions. The sixth charge given for the state is also erroneous; while it follows the language of the statute [1158 code 1892], it certainly has no application to a case like the one at bar.

Wiley N. Nash, attorney-general, for the state.

The instructions complained of, all announce correct principles of law. While they do not embody the idea that the state should prove the appellant doli capax, yet they must be read in conjunction with the other instructions, which give appellant the full advantage of the doctrine. Certainly instructions must be considered as a whole; the state's instructions excluding defendant's from consideration, are not only correct but fair and just to the accused. The evidence in this case, which justified the jury in finding that appellant was doll capax, is found in the incidents of the tragedy; the declarations and conduct of the accused just after; in short, in all the surrounding circumstances. This character of evidence is better than the opinion of witnesses. This court, we think, should affirm on the direct appeal, but on the cross appeal of the state, we ask for a judgment declaring that the dying declaration should have been received in evidence. The declarant stated that he expected to die--true, he did not say when--but his condition at the time, coupled with the statement, were conjointly sufficient to show that the deceased was, at the time he made the declaration, under a sense of impending dissolution.

Argued orally by E. S. Candler, Jr., for appellant, and by Wiley N. Nash, attorney-general, for the state.

OPINION

TERRAL, J.

Burg Joslin was convicted, at the January term, 1898, of the circuit court of Tishomingo county, of the crime of manslaughter, in the homicide of a neighbor boy, Lucius Brown. The unfortunate occurrence happened at night, at Barnes' Chapel, just as the congregation was about to disperse to their homes. The two boys were under fourteen years...