James v. State

63 So. 669, 106 Miss. 353

Opinion

Reed, J.,

delivered the opinion of the court.

Appellant was indicted for murder, tried and convicted, and sentenced to the penitentiary for life.

It is in the assignment of errors, and earnestly argued by appellant’s counsel, that the court erred in failing to grant an instruction defining manslaughter and informing the jury that appellant might be convicted of that offense.

No such instruction was asked for by either side in the trial of the case. We have decided recently, in the ease of Johnson v. State, 63 So. 338, that, where appellant has not presented a written instruction on manslaughter, with the request that it be given, the failure by the court to give such instruction will not be deemed error upon appellant’s complaint. In the opinion in that case we said: “Under the system of judicial procedure in. Mississippi, it is not in the province of the juclg’e to give instructions to the jury, unless ¡one of the parties request him to do so, and present'to him in writing the desired instruction. He is not permitted to instruct the jury at his own instance. Having failed to present a written instruction on manslaughter to the judge, with .the request that it be given, appellant cannot now be heard' to complain that she has not received the benefit of such instruction.”

•• We find-no error in the trial of the present case.

Affirmed.