Brandon v. State

Mississippi Supreme Court March 15, 1898

Brandon v. State, 75 Miss. 904 (Miss. 1898)

Whitfield

Opinion of the Court

Whitfield, J.,

delivered the opinion of the court.

Lucy Brandon was plainly committed to jail, under § 1384 of the code of 1892, in the course of the trial, in the presence and hearing of the jury. In the very doubtfully balanced state of the testimony this is fatal error. Golden v. State, ante, p. 130. The tenth instruction for the state is misleading and erroneous. An unnecessary killing could not be predicated of appellant’s killing deceased, if at the time deceased had his pistol drawn and was killed by defendant to save his own life. *907The only felony deceased could have been attempting, on the testimony, was the killing of his father, and killing by appellant to prevent being killed, if the jury believed the witnesses for the defense, was not an unnecessry killing. As to the cross appeal, it is only necessary to say that the court properly refused the sixth instruction for the state. Herman v. State, ante, p. 340.

Judgment reversed, verchict set aside and cause remanded.

Reference

Full Case Name: Jordan Brandon v. The State of Mississippi
Cited By: 12 cases
Status: Published
Syllabus: 1. Cbiminal Law. Arrest of witness in presence of jury. Coda 1892, 1 1384. When reversible error. It is error for the trial court to cause the arrest of a witness, under ' code 1892, 1384, providing- for the arrest of palpable perjurers, in the presence of the jury. Such arrests, if possible, should be made out of their presence and hearing. And where the evidence against the party on trial is fairly balanced by that in his favor, he will be entitled to a reversal on account of such improper arrest. Golden v. State, ante, p. 130; Chase v. State, ante, p. 502. 2. Same. Unneeessa/ry hilling. Instruction. An unnecessary killing cannot be predicated of a homicide committed in self-defense. An instruction so doing is erroneous. 3. Same. Burden of proof. Instruction. An instruction for the state predicated of the idea that the burden of proof may be shifted to defendant, should not be given. Herman v. State, ante, p. 340.