Mabry v. State, 42824
| Decision Date | 20 December 1963 |
| Docket Number | No. 42824,42824 |
| Citation | 158 So.2d 688,248 Miss. 149 |
| Parties | Percy N. MABRY, Calvin Sullivan and William Gordon Sullivan v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
William O. Semmes, Grenada, Breland & Whitten, Sumner, for appellants.
Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
Percy N. Mabry, Calvin Sullivan and William Gordon Sullivan were indicted, tried and conviction on a charge of burglary in the Circuit Court of Grenada County, and were each sentenced to serve a term of three years in the state penitentiary.
The case must be reversed because of errors in the instructions obtained on behalf of the State. There were several instructions granted in the case but in none of them was the crime of burglary defined. Three of the State's instructions were in identical language, and they pertained separately to each of the defendants. The instruction obtained by the State in the case of Percy N. Mabry is as follows: 'The Court instructs the jury for the State that if you believe from the evidence beyond a reasonable doubt that the defendant, Percy Mabry, is guilty as charged in the indictment, then it is your sworn duty to so find, and the form of your verdict will be: 'We the jury find the defendant Percy N. Mabry guilty as charged."
The same instruction as to each of the other defendants, except as to the name of the accused, is in the same language. It is to be noted that this instruction, as well as the instructions for the State in the cases against the two Sullivans, did not define the crime. They simply stated that, 'if the jury believed the defendant was guilty as charged in the indictment, then the jury should so find.' In civil cases involving a charge of negligence, it is well established that instructions for the plaintiff must state the alleged acts of negligence and define them, and may not simply refer to the negligence as charged in the declaration. In criminal cases such a requirement should be even stronger and more necessary. This is the general rule. The jury should be instructed properly as to the nature and elements of the offense charged, and 'the court must define and explain the crime charged, setting forth the essential elements thereof.' 23A C.J.S. Criminal Law Sec. 1193.
We hold that it is essential that an instruction shall charge the nature and elements of the offense, instead of referring the jury to the pleadings to ascertain what crime the defendant is alleged to have committed.
In Upton v. State, 143 Miss. 1, 108 So. 287, the State's instruction referred to the crime of murder, 'as charged in the indictment herein'. It was held that this criticism was 'well founded', but the Court held that this instruction was cured by instructions for the defendant which adequately defined the crime of murder. However, in the instant case there are no instructions for the defendants which cure, or attempt to cure, the error in the State's instructions.
Moreover, this is a case based entirely upon circumstantial evidence, and there was no instruction either for the State or the defendant which required the jury to believe that either of the defendants was guilty to the...
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...168 So. 862 (1936). In Yelverton v. State, 191 So.2d 393 (Miss.1966) this Court cited the following rule from Mabry v. State, 248 Miss. 149, 151, 158 So.2d 688, 689 (1963): 'In civil cases involving a charge of negligence, it is well established that instructions for the plaintiff must stat......
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Newell v. State
...of the indictment. Northcutt v. State, 206 So.2d 824 (Miss.1967); White v. State, 202 So.2d 633 (Miss.1967) and Mabry v. State, 248 Miss. 149, 158 So.2d 688 (1963), wherein we We hold that it is essential that an instruction shall charge the nature and elements of the offense, instead of re......
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Wilson v. State
...finds that the stolen property was worth more than $5,000. But see Apprendi, 530 U.S. at 490, 120 S.Ct. 2348.6 Mabry v. State, 248 Miss. 149, 151, 158 So.2d 688, 689 (1963) (“The jury should be instructed properly as to the nature and elements of the offense charged, and the court must defi......
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Gray v. State, 53525
...court pick out one of the four facts in evidence and comment upon it and was correctly refused. Appellant relies upon Mabry v. State, 248 Miss. 149, 158 So.2d 688 (1963) and Cutshall v. State, 191 Miss. 764, 4 So.2d 289 (1941), in his contentions here. However, Mabry was reversed because th......