Opinion
No. 30357.
April 3, 1933.
HOMICIDE.
Where evidence fully discloses circumstances surrounding alleged assault to kill, instruction that law presumes malice from use of deadly weapon is erroneous.
APPEAL from circuit court of Lincoln county. HON.E.J. SIMMONS, J.
James F. Noble, of Brookhaven, for appellant.
There was a full disclosure of all the facts attending and surrounding the shooting.
The first instruction for the state was erroneous, to-wit: "The court instructs the jury for the state that malice may be presumed from the deliberate use of a deadly weapon." This instruction was highly prejudicial to appellant.
There is an unbroken line of decisions of this state holding that such an instruction as the one now complained of constitutes reversible error when there is a full disclosure of all the facts surrounding and attending the shooting.
Walker v. State, 112 So. 673; Lamar v. State, 63 Miss. 265.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
I am fully aware of the decisions of this court which hold that this presumption of malice may be swallowed up by the full disclosure of all the facts and circumstances. This is clearly the law as gathered from the cases of Winchester v. State, 142 So. 454; Smith v. State, 137 So. 96; Cumberland v. State, 110 Miss. 521, 70 So. 695; Walker v. State, 112 So. 673, and others. Particularly would it seem that the last named case, the Walker case, applies to the case at bar and should control in this case if the court should hold that there has been a full and complete disclosure of all the facts and circumstances surrounding this assault and battery.
But, all that can be said from the testimony of these eyewitnesses, who testified at the trial of this case in the circuit court is that Smith was deliberately shot by Henry Batiste with a deadly weapon. No explanation is attempted, except by appellant and several of his witnesses to the effect that Smith was coming on him with a knife. This situation is so violently contradicted, not only by all of the state's witnesses, but by a number of defendant's own witnesses, that it seems that such explanation is supported by such an infinitesimal part of the testimony as to be of no weight whatsoever. In the light of all of this testimony it appears that all of the facts and circumstances surrounding this killing have not been shown and comes within the class of those killings which have not been explained.
If there has been that full disclosure, which the law requires, then under the former decisions of this court there is nothing else to do but submit that this conviction should be reversed.
The appellant was convicted in the circuit court of Lincoln county on an indictment charging an assault and battery with intent to kill and murder, and was sentenced to the state penitentiary for a period of five years.
The state offered seven eyewitnesses to the shooting in question. They gave a full and detailed account of the facts and circumstances surrounding the shooting, and their testimony, if believed, made a clear case of guilt of the crime charged. The appellant offered an equal number of eyewitnesses who testified fully as to the facts and circumstances surrounding the shooting, and their testimony tended to establish that the appellant shot in self-defense.
Upon this state of the record the court granted the state an instruction to the effect that "malice may be presumed from the deliberate use of a deadly weapon." It has been repeatedly held by this court that where all the facts and circumstances surrounding a homicide, or an alleged assault and battery with intent to kill and murder, are fully disclosed by the evidence, it is error to instruct the jury that the law presumes malice from the deliberate use of a deadly weapon. Walker v. State, 146 Miss. 510, 112 So. 673; Cumberland v. State. 110 Miss. 521, 70 So. 695; Smith v. State, 161 Miss. 430, 137 So. 96; Winchester v. State, 163 Miss. 462, 142 So. 454.
In the case at bar there was a full disclosure of all the facts and circumstances surrounding the shooting, and therefore for the error in granting the instruction complained of the judgment of the court below must be reversed.
Reversed and remanded.