De Silva v. State

47 So. 464, 93 Miss. 635

• Court: Mississippi Supreme Court
• Decided: October 15, 1908
• Status: Published

Opinion

Whitfield, C. J.,

delivered the opinion of the court.

The second instruction given for the state was fatally erroneous. It is in the following words: “The court instructs the jury for tbe state that tbe sending of tbe postal cards introduced in evidence to parties other than defendant, or members of her immediate family, did not justify an assault and battery upon Mrs. Margaret Harvey by the .defendant.” This plainly assumes two facts which, should have been submitted to the jury on the evidence, if there was any evidence on these two points: First, it assumes that postal cards had been introduced in evidence, addressed to parties other than the defendant, or to members of h'er immediate family, and that they had been sent; second, it assumes that Madame De Silva had made an assault and battery upon Mrs. Harvey. Whether an assault was made was a question of fact for the jury, and whether any such postal cards were sent was also a question of fact for the jury. Indeed, there was no evidence whatever in the record that any such postal cards had been sent at all.

Reversed and remanded.