Riley v. State

Citation109 Miss. 286,68 So. 250
CourtMississippi Supreme Court
Decision Date22 March 1915
PartiesRILEY v. STATE

March 1915

APPEAL from the circuit court of Leake county. HON. C. L. DODDS Judge.

Ben Riley was convicted of murder and appeals. Reversed, and defendant discharged.

Reversed and remanded. Judgment amended.

W. F Triplett and R. B. Walker, for appellant.

The error that we shall notice is the instruction of the state No. 1. "The court instructs the jury for the state that the law presumes malice from the deliberate and unlawful use of a deadly weapon whereby life is taken and this presumption of law will prevail unless overthrown by the facts and circumstances in evidence, marked "Given."

This instruction should not have been given (1) because there is no competent evidence to show deliberation (2) where the circumstances of a killing are fully laid before the jury, instructions announcing legal presumptions should not be given. Raines v. State, 81 Miss. 489. (3) The last clause of this instruction "unless overthrown by the facts and circumstances in evidence" throws the burden of proving excuse of justification for the killing upon the defendant. The burden is never upon the defendant but always upon the state. It is sufficient if there arises a doubt in the mind of the jury as to whether the defendant acted in self-defense or not, this doubt, of course, being reasonable. See Lamar v. State, 63 Miss. 265 and cases cited by court in opinion in that case.

Taking into consideration that this defendant is a negro charged with the killing of a prominent white man, that under such circumstances there wells up in the breast of every member of the white race, who takes part in such trials from the constable who may have made the arrest, to the judge on the bench a varying amount of prejudice against the defendant, the fact that witnesses are timid in testifying for such a negro, and the further fact that this defendant is a pauper being defended by two lawyers of limited experience under appointment by the court, we believe and are confident that we have gotten enough of the facts of this case before the court to convince them that, to let this verdict stand, would be a travesty upon justice.

Ross A. Collins, Attorney-General, for the state.

The instruction given for the state at which appellant complains is as follows:

"The court instructs the jury for the state that the law presumes malice from the deliberate and unlawful use of a deadly weapon whereby life is taken and this presumption of law will prevail unless overthrown by the fact and circumstances in evidence."

It is true that it never devolves upon the defendant in a criminal case to prove his innocence but that the state must prove his guilt, yet there is a certain state of facts which, if not avoided by some proof in the disclosure of the whole case, will warrant a verdict of guilt. Such for instance is the presumption that attaches from the deliberate use of a deadly weapon. The instruction complained of does not say in any manner whatsoever that it devolves upon the defendant to prove his innocence but merely tells the jury that a certain presumption attaches to the deliberate and unlawful use of a deadly weapon unless this presumption is overthrown by the facts and circumstances in evidence. It does not limit or direct the jury's attention to the evidence adduced by the defendant but merely says that if, in the light of a full disclosure of all the facts and circumstances in the case, there are no extenuating circumstances, they will be warranted in presuming malice from the deliberate use of a deadly weapon. In the Lamar Case, 63 Miss. 265, cited by the appellant, does not sustain his contention in regard to this instruction but on the other hand, I cite it to the court to uphold its correctness.

COOK, J. REED, J. SMITH, C. J., dissenting.

OPINION

COOK, J.

Appellant was convicted upon an indictment charging him with murder, and was sentenced to the penitentiary for life. Defendant is a negro, and the deceased was a white man. There were two trials of this case. The first trial resulted in a mistrial.

The evidence for the state shows that, on the day next preceding the day of the homicide, deceased and defendant had a conversation about some "confusion" (a negro term) between them, when deceased said to defendant:

"Ben, I want you to go with me to straighten up those lies that you have been telling on me. If you don't go, somebody will get a kicking, and, Ben, you will be the man to get the kicking."

No eyewitness testified about the homicide but it appears that deceased went to the home of defendant, armed with a loaded gun; that when he got there both parties fired on the other. The shots were fired so close together that witnesses who heard them said that they were distinguishable, but were so nearly simultaneous that they sounded like one big gun. Deceased was shot in the head, and the wound was of such a character as to immediately paralyze him.

The physical facts seem to demonstrate that defendant was inside of the house when the tragedy occurred, and that...

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21 cases
  • Hendrieth v. State, 45557
    • United States
    • Mississippi Supreme Court
    • 12 Enero 1970
    ...contained in this instruction is sanctioned by the authorities above cited. * * *' (28 Miss. at 698) In the case of Riley v. State, 109 Miss. 286, 68 So. 250 (1915), the testimony shows that although no eyewitnesses testified about the homicide, it appeared that the deceased went to the hom......
  • Motley v. Smith
    • United States
    • Mississippi Supreme Court
    • 18 Febrero 1935
    ... ... There ... was no effort whatever to show a motive for the killing or ... alleged murder on the part of the state. Nothing was shown by ... the state to show that malice existed at any time prior to ... the time of the killing, or even attempted to be shown ... 177 ... In ... addition, malice is presumed from the unexplained, deliberate ... use of a deadly weapon ... Riley ... v. State, 109 Miss. 286, 68 So. 250; Bennett v ... State, 120 So. 837, 152 Miss. 728; Holmes v. State, 151 ... Miss. 702, 118 So. 431 ... ...
  • Jackison v. State
    • United States
    • Mississippi Supreme Court
    • 4 Abril 1932
    ... ... House ... v. State, 94 Miss. 107, 48 So. 3 ... Under ... the facts in this case the jury were warranted in inferring ... the presence of malice from the use of the deadly weapon, the ... knife with which the mortal wound was inflicted ... Riley ... v. State, 109 Miss. 286, 68 So. 250; Johnson v ... State, 140 Miss. 895 ... Argued ... orally by L. H. McGehee, for appellant, and by D. C ... Bramlette, for the state ... Smith, ... C. J., Griffith, J., Anderson J., dissenting ... [140 So. 684] ... ...
  • Gilliam v. State
    • United States
    • Mississippi Supreme Court
    • 11 Diciembre 1939
    ...788; Hawthorne v. State, 58 Miss. 778; Godwin v. State, 73 Miss. 873, 19 So. 712; Raines v. State, 81 Miss. 489, 33 So. 19; Riley v. State, 109 Miss. 286, 68 So. 250; Cumberland v. State, 110 Miss. 521, 70 So. Patty v. State, 126 Miss. 94, 88 So. 498; Walker v. State, 146 Miss. 510, 112 So.......
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