Opinion
No. 26974.
April 9, 1928.
CRIMINAL LAW. Instruction defining "malice" as doing of wrong act intentionally without just cause or excuse, though erroneous, held harmless.
Instruction defining "malice" as "the doing of a wrong act intentionally without just cause or excuse," though erroneous in that malice is a state of mind and not an act, held harmless, since "doing of a wrong act intentionally without just cause or excuse" evidences malice.
APPEAL from circuit court of Perry county; HON. R.S. HALL, Judge.
Deavours Hilburn and Herman D. Young, for appellant.
The definition of malice given in instruction number 11 is wholly erroneous and misleading. Malice is not the doing of a wrong. Malice is not an act, although this instruction defines it as being the doing of something. Malice is a state of mind. It may in some instances manifest itself by the doing of some act; that is, the doing of some act may lead to a fair or just inference that there is malice in the mind of the individual doing the particular act. The instruction is altogether misleading because its consideration leads the jury away from the consideration of the condition or state of mind in which the accused is, to a consideration of some act done by the accused. The subject-matter for the investigation of a jury in passing upon a murder case is the exact state of mind of the accused at the time the act complained of is done. When this state of mind is discovered, the jury determines whether there is malice in it. And this determination of the existence of malice must be a finding from the evidence that the jury believes to be true as a matter of fact beyond every reasonable doubt. A definition having reference to malice and malice aforethought approved by the supreme court of the United States is found in Thiede v. Utah, 159 U.S. 509, 40 Law Ed. 237. The definition is as follows: "The term denotes a wicked intention of the mind; an act done with a depraved mind and attended with circumstances which indicate a wilful disregard of the rights or safety of others, indicate malice. Malice aforethought is such wicked intention of the mind previously entertained." See, also, Brown v. State, 98 Miss. 794; Ellis v. State, 108 Miss. 62; Riley v. State, 109 Miss. 286; Staiger v. State, 110 Miss. 557.
Instruction number 10 given for the state is, in our opinion, clearly erroneous. The instruction reads as follows: "The court instructs the jury for the state that the danger which will justify the taking of an adversary's life must be imminent, impending and present, and unless the jury believes from the evidence in this case that the defendant or his brother is in real or apparent danger of the loss of his life, or some great bodily harm at the hands of the deceased, Walter Alpin, and that such danger reasonably appeared imminent, impending and present when the defendant cut and killed the deceased, Walter Alpin, then, under the law the cutting and killing of the deceased Alpin, by the defendant was not authorized by law and the defendant ought to be convicted." The objection to this instruction is that it substantially and markedly shifts the burden of proof from the state to the defendant; no doctrine is more clearly established under the decisions of this court than that the burden of proof in a criminal case never shifts from the state to the defendant. It is not true under the law that unless the jury believes what is set forth in this instruction that the defendant ought to be convicted. The defendant ought not to be convicted unless he is guilty. And there can be no guilt in law as long as there is a reasonable doubt of guilt. So when this instruction announces that the jury must believe that the defendant or his brother was in danger of death or great bodily harm when the cutting was done, it announced an erroneous statement of the law, because under this statement the burden would be on the defendant to convince the jury of this condition of affairs to the extent that the jury must believe that condition existed before the defendant would be entitled to an acquittal. Clearly this instruction imposed upon the defendant the burden of proof, and in effect required him to introduce such evidence as would impel the jury to believe a certain state of facts. In Hawthorne's case, 58 Miss. 778, the court said: "In considering the circumstances of a homicide, as disclosed by all the evidence, the jury is to keep in view the rule that if, from a consideration of all the evidence there exists a reasonable doubt as to the character of the killing, it must be resolved in favor of the accused, who should not be convicted of any crime not made out by the evidence beyond all reasonable doubt." In the Guice case, 60 Miss. 714, an instruction apparently devolving the burden of proof on the defendant was approved by the court. But in Lamar v. State, 63 Miss. 265, the court takes great pains to explain that the instruction in the Guice case was upheld only because of the peculiar circumstances of that case; and in the Lamar case the court expressly upholds the contention we now make in this case. See Cumberland v. State, 110 Miss. 521.
Rufus Creekmore, Assistant Attorney-General, for the state.
Counsel object to instruction number eleven, arguing that malice is not the doing of a wrong or the doing of an act, but rather is a state of mind. In this argument, I think that counsel are correct. In this case, however, the jury was not misled by the instruction, nor was the defendant prejudiced thereby, because the other instruction both for the state and for the defendant have so clearly defined the circumstances under which the defendant should be convicted, that any error in the granting of this instruction was cured by them.
Counsel next object to instruction number ten granted for the state, the objection being that it shifts the burden of proof in that it requires the jury to convict unless the defendant has proven that he was in real or apparent danger at the time the blow was struck. It is true that this instruction would have been perhaps more accurately worded had it contained the clause that the jury was only required to have a reasonable doubt of these facts rather than believing them from the evidence. Even though it be conceded that this instruction, when taken alone, is erroneous in this respect, yet when construed with the other instructions in the case, no error was committed by granting it.
Argued orally by Stone Deavours, for appellant, and Rufus Creekmore, for the state.
The state's tenth instruction, while inaccurately worded, viewed in connection with the other instructions, could not have misled the jury.
The state's eleventh instruction, which defines malice as "the doing of a wrong act intentionally, without just cause or excuse," is erroneous in that malice is a state of mind and not an act; but it was perfectly harmless, for "the doing of a wrong act intentionally, without just cause or excuse," evidences malice.
Some of the other instructions complained of are inaccurate when considered alone, but the errors therein disappear when they are considered along with the other instructions.
The testimony as to the striking of Floyd Alpin by Hatcher Rowell after the deceased was cut by the appellant may have been inadmissible; but if it was, it could not have prejudiced the appellant to an extent sufficient to justify a reversal.
The testimony of Houston Busby here complained of was admissible.
Affirmed.