Eaverson v. State

Citations

• 73 Miss. 810

Syllabus

<p>1. Criminal Law. DeadVy weapon. Sudden passion. Presumption of malice.</p> <p>When, on a trial for assault with intent to kill and murder, there is evidence tending to show that the act of the accused was committed during a violent assault by the prosecutor, the fact that he employed a deadly weapon does not afford such a presumption of malice as will justify an instruction depriving him of the benefit of the defense that he acted in sudden heat of passion, and could at most be guilty only of an assault with intent to commit manslaughter.</p> <p>2. Same. Instructions. Occurrences of the instant. Antecedent facts.</p> <p>When, on a trial for assault with intent to kill and murder, the testimony for the defendant tends to show that, when he committed the act in question, the prosecutor had first knocked him down with a club, and was about to repeat the blow, or had struck at him again, and that the wound he received from defendant’s axe resulted from his striking against it while defendant held it in a purely defensive position, and the testimony for the state is to the effect that defendant had assaulted the prosecutor without provocation, and nearly severed his wrist by a blow with the axe, it is error to instruct the jury to convict “if they believe from the evidence that defendant struck J. (the prosecutor) with an axe, which they believe was a deadly weapon, when J. was not trying to do him some great injury,” for such charge makes the finding turn upon the occurrences of the instant without reference to the antecedent facts.</p>