Regan v. State

Mississippi Supreme Court November 15, 1905

Regan v. State, 87 Miss. 422 (Miss. 1905)

39 So. 1002

Calhoon

Opinion of the Court

Calhoon, J.,

delivered the opinion of the court.

We do not think there was such an abuse of discretion in refusing a change of venue as warrants the intervention of this court. Bishop v. State, 62 Miss., 290; Dillard v. State, 58 Miss., 368. If there was error, we should -not interfere where, as here, appellant. did not exhaust his peremptory challenges. See the authorities cited in the brief of the assistant attorney-general on this point.

*428Appellant seems to have had a perfectly fair trial, and his defense was conducted by his counsel with very great ability. He had every principle of law to which he was entitled embodied in the instructions given by the court. His thirteenth instruction was properly refused. Others of them gave him the full benefit of any reasonable doubt. This does no more, and was unnecessary, and is a useless refinement. Belief in a charge implies conscientious belief, and the jury were repeatedly told to acquit unless satisfied of his guilt beyond every reasonable doubt. This is enough, and carries with it the idea that they might believe him guilty, and yet should acquit unless they believed it — equal to “conscientiously” believed it — beyond reasonable doubt. The tenth instruction was properly refused. It omits the vital feature that the overt acts might reasonably induce, and did induce, the belief of danger of death or great bodily harm then about to be done the accused. It directs • this conclusion as matter of law, without reference to belief or what the jury might conclude from the facts shown. The modification of the ninth instruction is quite clearly not reversible error in this case, as the question — if there was a question — was one of danger of life from a pistol about to be drawn, and the accused testified that he thought his life was in danger and shot to save it. The modification of the fourteenth charge cannot properly be complained of. It sought to exonerate Began for shooting deceased “in the back,” and the court interposed the proviso that he had grounds to believe, and did believe, it was necessary to shoot him in the back “to protect himself from great bodily harm.” This assumes no fact not assumed by the charge as offered.

This case will not be reversed because of the language of the district attorney used in argument. No objection was made at the time it was used. Powers v. State, 83 Miss., 691 (36 South. Rep., 6); Cartwright v. State, 71 Miss., 82 (14 South. Rep., 526). The evidence very amply sustains the verdict.

Affirmed.

Reference

Full Case Name: J. Edward Regan v. State of Mississippi
Cited By: 5 cases
Status: Published
Syllabus: 1. Criminal Law. Change of venue. Appeal. Harmless error. Peremptory challenges. Failure to exhaust. A conviction of murder will not be reversed on appeal because of the denial of a change of venue: (a) Unless it clearly appear that the trial court abused its discretion; nor then (5) Unless it appear that the accused exhausted his peremptory challenges. 2. Same. Instructions. Reasonable doubt. On the trial of a murder case, an instruction to the effect that the jury might conscientiously believe the defendant guilty, and yet not believe him guilty beyond a reasonable doubt, and in such case they should acquit,* may properly be refused where another instruction had been given telling the jury to acquit unless satisfied of the defendant’s guilt beyond every reasonable doubt arising from the evidence, as unnecessary and a useless refinement. 3. Same. Homicide. Instructions. An instruction in a murder ease which predicates the defendant’s asserted right to kill of certain overt acts of the deceased, at the time of the killing, may properly be refused if it omit the idea that the overt acts reasonably induced defendant to believe that he was in danger of great bodily harm. 4. Same. In a prosecution for murder, where the accused defended upon the ground that he did the killing because he thought his life in danger from a pistol about to be drawn by the decedent, and that he shot in self-defense, it is proper to modify. a requested instruction predicated of such defense by inserting the. condition that the defendant must have shot the deceased by reason of the belief actually engendered in his mind that his life was in danger. 5. Same. Where, on the trial of a murder case, the defense was that the deceased attempted to draw a pistol to shoot defendant at the time defendant killed him, it is proper to modify a defendant’s instruction by inserting a proviso toi the effect that to warrant an acquittal defendant must have had reasonable ground to believe, and did believe, that it was necessary for him to shoot the deceased in order to protect his own life or '.himself from bodily harm. 6. Same. Argument of counsel. Question not raised below. Where no objection was made at the time in a murder case to the language of the district attorney in argument to the jury, a conviction will not be reversed therefor.