Lewis v. State

• Decision Date: 02 November 1908
• Citation: 93 Miss. 697,47 So. 467
• Court: Mississippi Supreme Court
• Parties: JOHN LEWIS v. STATE OF MISSISSIPPI

47 So. 467

93 Miss. 697

JOHN LEWIS v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

November 2, 1908

October 1908

FROM the circuit court of Jackson county, HON. WILLIAM H. HARDY Judge.

Lewis appellant, was indicted, tried and convicted of an assault and battery with intent to kill and murder one William Jones and appealed to the supreme court.

The ninth instruction asked by defendant and refused by the trial court is as follows:

"No 9. The court instructs the jury that good character may in itself create a reasonable doubt, when otherwise no such doubt would exist; and if, in the judgment of the jury, the evidence of good character raises a reasonable doubt of defendant's guilt, they have a right to entertain such doubt, and the defendant should have the benefit of it."

The eleventh instruction asked by defendant and refused by the trial court is as follows:

"No 11. The court instructs the jury that, if they believe the evidence justifies, they may convict of assault and battery."

The court granted instruction No. 10 asked by the defendant, which is as follows:

"No. 10. The court instructs the jury that, if they believe from the evidence that the gun with which the defendant assaulted Will Jones was not charged or loaded in such a manner as would cause the death of or serious injury to a person when fired at the distance the parties were from each other, they must acquit the defendant of the intent, but may convict of an assault and battery."

Affirmed.

John H. Cook, for appellant.

On the facts of record the testimony of both the defendant and Jones, the court below erred in refusing instruction eleven as asked for by defendant. Where a defendant is charged with a crime which includes other offences of an inferior degree, the law of each degree or included offence which the evidence tends to prove should be given to the jury by proper instructions, and the refusal to so instruct is error. Bedwell v. State, 50 Miss. 492; Curtis v. State, 36 Ark. 284; Brookins v. State, 100 Ga. 310.

The indictment for an assault and battery with intent to kill and murder certainly embraces the two lessor offences of assault and assault and battery, and in common justice the defendant should have had the benefit of the instruction.

George Butler, assistant attorney general, for appellee.

The court had no right to tell the jury that evidence of good character was or was not sufficient to raise a reasonable doubt of defendant's guilt. Coleman v. State, 59 Miss. 484. True it is that evidence of good character should go to the jury as any other fact and should be considered by them along with all the other evidence in the case; and if when thus considered, there exists...