Sullivan v. State
| Decision Date | 11 May 1908 |
| Court | Mississippi Supreme Court |
| Parties | WILLIAM SULLIVAN v. STATE OF MISSISSIPPI |
March 1908
FROM the circuit court of Lincoln county, HON. MOYSE H. WILKINSON Judge.
Sullivan appellant, was indicted, tried and convicted for the murder of one Pickering, sentenced to the penitentiary for life and appealed to the supreme court.
The deceased was killed while in a buggy with his brother driving along the highway at night. He was shot from ambush and instantaneously killed. There was ample proof on the part of the state to show prima facie that appellant was the guilty party. In defense appellant sought to prove an alibi. On appeal the principal assignment of errors was predicated of the court's action in granting the instruction asked by the state, set forth in the opinion of the court.
Affirmed.
A. C. & J. W. McNair, for appellant.
Every indictment charging murder must contain every essential of the crime, or it will be bad on demurrer. Likewise, when, on the trial of a defendant for murder, the court attempts to charge the jury, every element necessary to constitute the crime must be embodied in the charge.
The instruction for the state is fatally defective in that it charges the jury to convict, if they believe beyond a reasonable doubt that the defendant willfully and deliberately and of malice aforethought killed deceased, and fails to add the two very important and necessary elements of unlawfullness and feloniousness. For, unless a homicide is unlawfully and feloniously committed, no matter how deliberately it may be carried out, the act is not murder. Johnson v. State, 89 Miss. 777, 42 So. 606.
Clem V. Ratcliff, on the same side.
The instruction for the state is manifestly erroneous. One may willfully and deliberately kill another, and be warranted in law in so doing.
George Butler, assistant attorney-general, for appellee.
As the only issue in this case was whether the appellant shot the deceased from ambush, and under the circumstances the killing of deceased by whomsoever committed was an atrocious assassination, it must follow that the instruction for the state was not erroneous. The issue was not as to how appellant killed deceased, or what motives caused him to kill him, but whether or not appellant did the shooting.
But even if the instruction were erroneous, the error was cured by the court's action in granting full and ample instructions...
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Dedeaux v. State
... ... resolution itself." So, when the jury is told to find ... him guilty as charged in the indictment, the indictment is ... made a part of the instruction ... It is ... only in instructions that attempt to define a crime that ... technical words should be used. Sullivan v. The ... State, 92 Miss. 828, 46 So. 248. The omission of words, ... however, in an instruction which attempts to define a crime, ... such words being statutory, would be error. Rutherford v ... The State, 100 Miss. 832, 57 So. 224. So again, where ... the instruction does not attempt to ... ...
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...itself discloses that the assault was made with a deadly weapon with a deliberate and expressed intent to kill and murder. Sullivan v. State, 92 Miss. 828, 46 So. 248; Wesley v. State, 37 Miss. 327, 75 Am.Dec. Error is predicated of the failure of the instructions for the state to define th......
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