Cumberland v. State

Citations

• 110 Miss. 521
• 70 So. 695

Syllabus

<p>1. Homicide. Instructions. Malice. Burden of proof. Sufficiency of evidence. Reasonable doubt. Self defense. Opinion evidence. Conclusion. Hearsay. Trial. Rebuttal evidence.</p> <p>Where in a trial for murder the state’s testimony was sufficient to sustain a conviction and the defendant’s testimony made out a case of self-defense, an instruction for the state that, if the jury believed beyond a reasonable doubt that defendant shot and killed deceased, the use of a pistol was prima facia evidence’ of malice and an intent to murder, to overcome which it must be shown that at the time of the killing defendant was then in immediate, real, or apparent danger of losing his life or suffering great bodily harm from deceased, which danger must have been present and imminent at the moment of the killing, was. erroneous, since in effect it shifted to defendant the burden of showing his innocence if the killing with a deadly weapon was shown.</p> <p>2. Same.</p> <p>Such an instruction was further erroneous in not stating that the jury must acquit the defendant if they have a reasonable doubt of his guilt arising from the evidence or the want of evidence.</p> <p>3. Criminal Law. Reasonable doubts.</p> <p>In the trial of a murder case an instruction that the state must ■ make out its case to a moral certainty, and until it does so, the accused is not required to do anything, and thereafter he need only raise a reasonable doubt of his innocence to entitle him to an acquittal, should have been given.</p> <p>4. Homicide. Burden of proof. Self defense.</p> <p>It is not true that, if no excuse or justification of the killing is shown by the state’s evidence, the defendant is guilty of murder unless he has by his evidence proven the excuse and justification and an instruction announcing this law should not have been refused defendant.</p> <p>5. Criminal Law. Opinion evidence. Conclusion.</p> <p>' In’a-trial for murder a witness should not have been permitted to express his opinion t