Roux v. City of Gulfport

• Decision Date: 06 June 1910
• Citation: 52 So. 485,97 Miss. 559
• Court: Mississippi Supreme Court
• Parties: JOSEPH ROUX v. CITY OF GULFPORT

52 So. 485

97 Miss. 559

JOSEPH ROUX v. CITY OF GULFPORT

Supreme Court of Mississippi

June 6, 1910

March 1910

FROM the circuit court of Harrison county, HON. THOMAS H. BARRETT Judge.

Roux appellant, was convicted in the municipal court of Gulfport for the violation of an ordinance of the city making it an offense against the municipality to commit an assault and battery within its limits. He appealed from the judgment of the municipal court to the circuit court, was there tried de novo and was again convicted and appealed to the supreme court. The facts upon which the case was decided are stated in the opinion of the court.

Judgment affirmed.

J. H Mize, for appellant.

The court below erred in refusing the instruction asked by defendant.

It is true that this court, for whose opinion at all times we have the greatest respect and deference, has decided against this instruction in the case of Runnels v. State, 96 Miss. 92, 50 So. 499, and, in criticizing its decision in that case, we do so in the light of the respect and deference we always entertain for the opinions of this court. First, we will say that, in its decision in the Runnels case, we do not think this court actually condemned this instruction but upheld its refusal on the ground that it did not constitute reversible error for the reason that the court in that case had charged the jury over and over again in several instructions to give the defendant the benefit of every reasonable doubt, and, when this was done, this instruction, we think, was virtually given, though in different language, as the court in the Runnels case held that the defendant had been given the benefit of the principle in the reasonable doubt instructions.

Further, we think that, in the Runnels case, the instruction was not correctly drawn, because it told the jury that if there arose from the evidence two reasonable theories, one favorable to the state, and the other to the defendant, it was their duty to accept the theory favorable to the defendant and acquit him, etc. The instruction in the instant case did not put it "favorable to the defendant," but expressed the real and true meaning of the application of the theory, in that the theory had to be a reasonable theory, and the theory had not only to be favorable to the defendant, but had to be a reasonable theory that defendant was innocent. There might arise a theory favorable to the defendant, and yet not reach the point where the theory is that the defendant is innocent, and we certainly think the refusal of this instruction in the instant case is reversible error, for the reasons above set forth.

John L. Heiss, for appellee.

Counsel for appellant recognizes the ruling of this court in Runnels v. State, 96 Miss. 92, 50 So. 499, and seeks to break the force of it by differentiating between that case and this at bar, by the fact that in the case of Runnels v State, supra, there were other instructions given which set forth the orthodox rule of giving the defendant the benefit of every reasonable doubt; while, in the instant case, only one...