Powers v. State

• Decision Date: 29 March 1897
• Citation: 21 So. 657,74 Miss. 777
• Court: Mississippi Supreme Court
• Parties: M. F. POWERS v. THE STATE OF MISSISSIPPI

21 So. 657

74 Miss. 777

M. F. POWERS v. THE STATE OF MISSISSIPPI

Supreme Court of Mississippi

March 29, 1897

March 1897

FROM the circuit court of Panola county, second district HON. Z M. STEPHENS, Judge.

Appellant was indicted for the murder of one Mills, was tried and convicted of manslaughter, and appealed. On the trial it was shown that appellant shot Mills, that almost immediately after the shooting, and before Mills was removed from the scene of the conflict, and when he was in extremis, appellant walked up and said to decedent that he "was sorry he did it" or "sorry that he had to do it" (witnesses were not certain which form of expression was used); and that deceased responded: "You have killed me without cause." To the introduction of the statement of deceased objection was made that the statement was a mere conclusion but the objection was overruled, Evidence of the good character of the defendant previous to the homicide was introduced by the defense. The instructions appear in the opinion.

Reversed and remanded.

Stone & Lowrey and L. L. Pearson, for appellant.

The eighth instruction for the state, to be "satisfied as a fair, reasonable and conscientious man, " is not equivalent to finding defendant guilty beyond every reasonable doubt. Burt v. State, 72 Miss. 408; Hammond v. State, 21 So. No. 6.

The only reasonable construction of the twelfth charge is that, in determining the guilt or innocence of the defendant, the jury must eliminate all evidence of character and settle his fate by the other evidence in the case, but if from this the jury are unable to say whether he is guilty or innocent, then the jury may consider the question of character. This is not the law, as expressly held in Coleman v. State; Hammond v. State, 21 So. No. 6; Rice on Crim. Ev., secs. 371, 373, 375, 378, 379.

The statement of deceased to appellant, after the killing, "You have killed me without cause, " was admitted by the court as a dying declaration. If the deceased had been present in court testifying, he could not have given his conclusions from the facts. A dying declaration must be a narrative of the facts. We are aware that this court, in Payne v. State, 61 Miss. 161, has held almost the identical language here used by the deceased admissible as a dying declaration, but, with all due deference to the learned judge who rendered the opinion, we respectfully ask the court again to pass upon whether the language here used is not a conclusion, rather than a statement of the facts attending the killing.

Wiley N. Nash, attorney-general, for appellee.

The reporter fails to find a brief for appellee on file.

OPINION

WOODS, C. J.

The eighth instruction given for the state is in these words, viz.: "The court instructs the jury that while it is true they must, in order to convict the accused, believe him guilty beyond a reasonable doubt, arising out of the evidence, and to a moral certainty, yet this thing of a reasonable doubt the law cannot and does not undertake to define. The jury are not required to know that the defendant is guilty, but it is only necessary, in order to convict, that the jury, after a full consideration and comparison of all the evidence, should be satisfied, from the evidence, as fair, reasonable, and conscientious men, of the defendant's guilt, and if they so believe it is their duty to convict."

Singularly enough, this instruction very properly and accurately states the impossibility of and the aversion to, by the law, of doing that which is incapable of being done, to wit, the definition of a term which is indefinable, and then proceeds in an attempt to enlighten the jury as to what is a reasonable doubt--to declare, in effect, that when all the evidence satisfies the jury, as fair, reasonable, and conscientious men, of defendant's guilt, then it is their duty to convict, which is equivalent to stating that in such case there is no reasonable doubt. The error of the instruction is glaring. Every jury is presumably composed of fair, reasonable, and conscientious men. The law requires the selection of such men in cases of murder, and when the competency of the jurors has been declared by the court under whose direction the selection of jurors is made, the further presumption arises that this requirement of the law has been complied with. Now, with such a jury, composed of such men, the instruction states that it is only necessary that all the evidence, after full consideration and comparison of it by the jury, shall satisfy the jury of defendant's guilt. The idea of satisfaction to a moral certainty, and beyond all reasonable doubt, is...