Fletcher v. State

92 So. 557, 129 Miss. 578

Opinion

Cook, J.,

delivered the opinion of the court.

On a former day of this term- this cause was reversed, the opinion being reported in 91 So. 338. The court there held that on the facts in this record the defendant was not guilty of a higher crime than manslaughter; and the cause was remanded for trial on the issue of manslaughter only. The attorney-general now suggests that we erred in remanding the cause for trial only on the issue of manslaughter, and insists that it should be remanded for trial generally. We think this contention is correct.- Upon the first trial the defendant was convicted of murder, and the remanding of the case to the trial court is for the purpose of having it tried de novo. If on a new trial in the court below the proof presents the same case that was before this court on this appeal, the court, by proper instructions, should limit the issues to that of manslaughter, but should the evidence on a new trial present a different case, the instructions granted should be made to conform thereto and to cover all issues supported thereby.

The suggestion of error is therefore sustained, and the former opinion modified to the extent herein indicated, and the cause is remanded for a new trial generally.

Suggestion of error sustained.