Bishop v. State

Citations

• 62 Miss. 289

Syllabus

<p>3. Venue. Change of. Refusal to grant in murder case. Supreme court practice.</p> <p>This court will not reverse a judgment upon a conviction of murder because of the refusal of the circuit court to grant a change of venue, unless it be apparent by the record that there was an abuse of the court’s discretion.</p> <p>2. Murder. Presumption of malice. Sow overcome. Evidence “ to satisfaction of jury.” Instruction.</p> <p>In the trial of an indictment for murder an instruction was given for the State in these words: “Every killing with a deadly weapon is presumed to be malicious and amounts to murder until the ■ contrary appears from circumstances of alleviation, excuse, or justification, and it is incumbent on the defendant to make out such circumstances to the satisfaction of the jury unless they arise out of the evidence in the case; and if the jury believe from the evidence that defendant cut ancL killed deceased with a knife, and that said knife was a deadly weapon, and that at the time defendant so cut and killed deceased he had no reasonable ground to apprehend, from some overt act of deceased, that deceased designed immediately to kill him or do him some great bodily harm, in such case defendant is guilty of murder and the jury should so find.” The first clause of this instruction, which requires the defendant to rebut the presumption arising from the use of a deadly weapon “to the satisfaction of the jury,” would be condemned if viewed alone; but when considered with the latter clause interpreting and applying it, and in connection with proper charges for the defendant as to the burden ■of proof, quantity of proof required of the State, reasonable doubt, and the other phases of the defense, it is not fatally erroneous.</p> <p>3. Same. Use of deadly weapon. Presumption — how rebutted. Evidence “to satisfaction of jury.” Instruction.</p> <p>In the trial of a charge of murder the following instruction was given for the State: “ If the defendant killed the dece