Burnett v. State

Mississippi Supreme Court March 15, 1908

Burnett v. State, 92 Miss. 826 (Miss. 1908)

46 So. 248

Oalhoon

Opinion of the Court

Oalhoon, J\,

delivered the opinion of the court.

It was error to refuse instructions Nos. 1 and 2 asked by the defense. Every person charged with murder is entitled to have the jury pass on whether the killing was done willfully, féloni*828ously, and of his malice aforethought. On certain facts, the law sometimes presumes malice, but these facts must exist to supply the presumption, and the jury alone can determine the existence of these facts. The state may explain these, if it chooses, in counter charges, but the accused is none the less entitled to the ■instruction that malice aforethought must exist.

Reversed and remanded.

Reference

Full Case Name: John Burnett v. State of Mississippi
Cited By: 1 case
Status: Published
Syllabus: 1. Criminal Law and Procedure. Murder. Malice aforethought. Irtrstructions. Where the state’s theory in a murder case was that defendant had' deliberately and wilfully shot, from the outside of the house through a window, into a room crowded with wedding guests,, striking and killing deceased, the accused is entitled to have the jury instructed that malice aforethought is a necessary ingredient of murder. 2. Same. Counter instruction. Presumption. The state in such case would be entitled to a counter instruction, to the effect that malice aforethought might be presumed from proof of the. shooting and killing.