Stewart v. State, No. 45495

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtETHRIDGE
Citation226 So.2d 911
Docket NumberNo. 45495
Decision Date06 October 1969
PartiesElsie Davis STEWART v. STATE of Mississippi.

Page 911

226 So.2d 911
Elsie Davis STEWART
v.
STATE of Mississippi.
No. 45495.
Supreme Court of Mississippi.
Oct. 6, 1969.

Clyde W. Mullins, Cecil Gill Smith, Jr., Natchez, for appellant.

A. F. Summer, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.

ETHRIDGE, Chief Justice.

Elsie Davis Stewart, appellant, was convicted in the Circuit Court of Adams County for shooting Lucille Chatman with intent to kill. Appellant admitted the shooting, but interposed a plea of self-defense. She and Chatman were the only eye witnesses to the incident who testified, and their accounts of the incident conflicted sharply. Accordingly, the key issue before the jury was whether appellant had acted with the specific intent required for this offense.

Page 912

The State obtained the following instruction:

The Court instructs the jury for the State that malice aforethought mentioned in the indictment may be presumed from the unlawful and deliberate use of a deadly weapon.

In a long line of cases, this Court has held that an instruction on an asserted presumption of malice from the use of a deadly weapon is proper only where the testimony has failed to establish the circumstances of the use of the weapon. Where the facts have been set forth in the evidence, as here on conflicting testimony, the question of malice should be left for the consideration of the jury, and the granting of such an instruction is error. Chinn v. State, 210 So.2d 666 (Miss.1968); Hydrick v. State, 246 Miss. 448, 150 So.2d 423 (1963). An instruction of this type can be very misleading to a jury. It certainly constitutes an unfair reference to a nonexistent presumption, because when all of the evidence is in, there is no presumption. Moreover, an instruction on a presumption in this posture of a case is a manifest attempt to bolster the state's evidence. Where the testimony has shown the circumstances of the use of the weapon, the district attorney should not request and the circuit court should not grant an instruction on a presumption of malice from the use of a deadly weapon. It was reversible error to give this instruction in this case.

Since the case is to be tried anew, a brief comment on other assignments of error is appropriate. The circuit court did not err in excluding evidence of previous threats and provocations by the prosecuting witness toward the appellant, which occurred six months before the shooting. The court's reason for the exclusion was...

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21 practice notes
  • Tran v. State, No. 92-KA-01058-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • August 22, 1996
    ...330 (Miss.1986) (citing Allison v. State, 274 So.2d 678 (Miss.1973); Blackwell v. State, 257 So.2d 855 (Miss.1972); Stewart v. State, 226 So.2d 911 (Miss.1969); Hydrick v. State, 246 Miss. 448, 150 So.2d 423 (1963); Funches v. State, 246 Miss. 214, 148 So.2d 710 (1963); Shields v. State, 24......
  • Carter v. State, No. 55659
    • United States
    • United States State Supreme Court of Mississippi
    • July 30, 1986
    ...been set forth, even on conflicting testimony, the question of malice should be left for the consideration of the jury. Stewart v. State, 226 So.2d 911 (Miss.1969); Chinn v. State, 210 So.2d 666 (Miss.1968); Hydrick v. State, 246 Miss. 448, 150 So.2d 423 (1963). Since it is apparently so di......
  • Tillis v. State, No. 93-KA-00029-SCT
    • United States
    • Mississippi Supreme Court
    • September 28, 1995
    ...was no evidence that the threat by the deceased to kill the defendant and the ultimate homicide were connected. In Stewart v. State, 226 So.2d 911 (Miss.1969) this Court Since the case is to be tried anew, a brief comment on other assignments of error is appropriate. The circuit court did n......
  • Hewlett v. State, No. 89-KA-1105
    • United States
    • United States State Supreme Court of Mississippi
    • August 5, 1992
    ...not be disturbed in the absence of clear proof of abuse of discretion. Howard v. State, 346 So.2d 918, 920 (Miss.1977); Stewart v. State, 226 So.2d 911, 912 (Miss.1969). To help a trial judge make that decision this Court has stated some guidelines in Barrett v. Shirley, 231 Miss. 364, 95 S......
  • Request a trial to view additional results
21 cases
  • Tran v. State, No. 92-KA-01058-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • August 22, 1996
    ...330 (Miss.1986) (citing Allison v. State, 274 So.2d 678 (Miss.1973); Blackwell v. State, 257 So.2d 855 (Miss.1972); Stewart v. State, 226 So.2d 911 (Miss.1969); Hydrick v. State, 246 Miss. 448, 150 So.2d 423 (1963); Funches v. State, 246 Miss. 214, 148 So.2d 710 (1963); Shields v. State, 24......
  • Carter v. State, No. 55659
    • United States
    • United States State Supreme Court of Mississippi
    • July 30, 1986
    ...been set forth, even on conflicting testimony, the question of malice should be left for the consideration of the jury. Stewart v. State, 226 So.2d 911 (Miss.1969); Chinn v. State, 210 So.2d 666 (Miss.1968); Hydrick v. State, 246 Miss. 448, 150 So.2d 423 (1963). Since it is apparently so di......
  • Tillis v. State, No. 93-KA-00029-SCT
    • United States
    • Mississippi Supreme Court
    • September 28, 1995
    ...was no evidence that the threat by the deceased to kill the defendant and the ultimate homicide were connected. In Stewart v. State, 226 So.2d 911 (Miss.1969) this Court Since the case is to be tried anew, a brief comment on other assignments of error is appropriate. The circuit court did n......
  • Hewlett v. State, No. 89-KA-1105
    • United States
    • United States State Supreme Court of Mississippi
    • August 5, 1992
    ...not be disturbed in the absence of clear proof of abuse of discretion. Howard v. State, 346 So.2d 918, 920 (Miss.1977); Stewart v. State, 226 So.2d 911, 912 (Miss.1969). To help a trial judge make that decision this Court has stated some guidelines in Barrett v. Shirley, 231 Miss. 364, 95 S......
  • Request a trial to view additional results

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