Brown v. State

Citations

• 98 Miss. 786
• 54 So. 305

Syllabus

<p>1. Criminal Law. Indictment. Code 1906, § 1237. Murder. Malice. Evidence.</p> <p>Code 1906, § 1237, providing that every person who shall unnecessarily kill another, either while resisting an attempt by such other person to commit a felony, or to do any unlawful act, etc., shall be guilty of manslaughter, does not prevent a party so killing another from being indicted and convicted of murder. It is is a question for the jury on the trial under an indictment for murder, in such ease, to say on a consideration of all the facts and circumstances whether the offense is manslaughter under the statute or the graver offense of murder.</p> <p>2. Same.</p> <p>A property owner has the right to arm himself to resist the commission of a trespass, but his right to'use a deadly weapon is limited to cases where he has to protect his own life from a felonious assault by a resisting trespasser.</p> <p>3. Murder. Malice. Evidence.</p> <p>The malice essential to a conviction of murder may be ascertained from previous threats and measures taken in preparation, and too, may arise suddenly and be implied from circumstances as from the intentional use at the outset of a deadly weapon.</p> <p>4. District Attorney. Improper remarles.</p> <p>Where the father and brother of accused are present at the trial and . equally accessible to the state as to the defendant, it is reversible error for the district attorney in his closing argument over the objection of defendant to comment, on the fact that these witnesses were not called upon by the defendant to testify.</p> <p>5. Same.</p> <p>The rule that the failure of either party to examine a witness equally accessible to both, offers no foundation for a prejudicial inference, applies to both criminal and civil proceedings.</p>