Ellerbe v. State

79 Miss. 10

• Court: Mississippi Supreme Court
• Decided: March 15, 1901
• Status: Published

Opinion

CalhooN, J.,

delivered the opinion of the court.

This is an indictment for murder and a conviction of manslaughter. The entire defense was put on the ground that the killing was justifiable, and in self-defense. In this condition the state asked an instruction, numbered 3, in these words : “ The court instructs the jury that they may find either one of the four following verdicts : First. ‘ We, the jury, find the defendant guilty as charged in the indictment.’ Under this verdict the punishment is death. Second. ‘We, the jury, find the defendant guilty as charged in the indictment, and fix his punishment at imprisonment in the penitentiary for life,’'— in which case the court will sentence the defendant to the penitentiary for life. Third. ‘ We, the jury, find the defendant guilty of manslaughter.’ Under this verdict the court may fine the defendant in any sum not less than $500, or imprison him in the county jail not more than one year, or both, or may sentence him to the penitentiary not less than two years. Or, fourth, ‘ We, the jury, find the defendant not guilty,’ which would be an acquittal.” We think the granting of this charge reversible error, because of its third clause. It is faulty in stating the punishment, and that in its milder forms. It looks too much like an invitation to the jury to compromise on the lesser offense. The jury have nothing to do with, and should be told nothing of, the character or degrees of punishment in any case whatever, except in those capital' cases in which the statutes authorize them, upon conviction, if they see proper, to fix the penalty at imprisonment fot life in the penitentiary; and in such cases they should not be charged touching the punishment which the court may inflict if the accused should be convicted of any constituent offense not so punishable. It may be that this charge, and it alone, produced the manslaughter verdict. The ninth instruction given for the state, we think, was also erroneous. It tells the jury the danger, to justify the killing, must be “ so urgent that there is no reasonable mode of escape except to take life.” Bang v. State, 60 Miss., 571, and the authorities it cites. Besides, the charge assumes that the shooting was “ on sight,” which was not the fact, and assumes also as true that deceased was not ‘ ‘ prepared and armed, ’ ’ and that he was ‘‘ at the time making no hostile demonstrations, ’ ’ —both questions of fact. The thirteenth charge for the state, after an effort to define a reasonable doubt, concludes thus : “ All that is required to enable a jury to return a verdict of guilty is, after a comparison and consideration of all the testimony, to believe conscientiously that it establishes the guilt of defendant.” We think this instruction should have- been refused. Powers v. State, 74 Miss., 777, 21 So., 657, and the authorities cited in the opinion in that case.

Reversed and remanded.