M. Ney Williams and John Williams, both of Raymond, for appellant.
In this case, as well as all criminal cases, the defendant is entitled under the law to the presumption of innocence, and this right carries with it the solemn pledge of the law that no man can be convicted of any crime unless proven guilty beyond every reasonable doubt. It cannot be said then that if there is a probability of the guilt of the defendant in the minds of the jury from the evidence or lack of evidence that the defendant can be convicted, or if there is a probability of the innocence of the defendant in the minds of the jury from the evidence or lack of evidence that the defendant can be convicted. Probability of guilt will not warrant the jury in convicting the defendant, as the law guarantees this defendant a prompt acquittal, unless the jury believe beyond every reasonable doubt from the evidence that he is guilty.
Probability of the innocence of defendant, if arising from the evidence or lack of evidence, places the defendant under the same guarantee of the law, and he cannot be convicted so long as there is such a probability.
Nelms v. State, 58 Miss. 362 ; Browning v. State, 30 Miss. 656 ; Mixon v. State, 55 Miss. 525 ; Jackson v. State, 66 Miss. 90 , 5 So. 690; Gentry v. State, 108 Miss. 505 , 66 So. 982.
The refusal of an instruction applying the law to a theory of facts constituting of themselves a complete defense for the accused is not cured by another authorizing an acquittal, provided the jury believes those facts in connection with other facts stated.
Gerdine v. State, 64 Miss. 798 , 2 So. 313.
The accused is entitled to a separate and distinct charge upon the law of self defense on the trial of an indictment charging assault and assault with intent to murder, where self defense is set up, and it is in evidence that both the prosecuting witness and the accused had threatened each other, and it is not clear from the proof which commenced the fight in which the wound was given.
Gerdine v. State, 64 Miss. 798 , 2 So. 313; Lamar v. State, 1 So. 354; Aldrige v. State, 59 Miss. 250 .
Hilton Kendall, of Jackson, for appellant.
The testimony of a witness that is manifestly unreasonable or untrue will not be sufficient to support a conviction when it is contrary to all of the credible testimony in the case.
Mathews v. State, 96 Miss. 169 , 50 So. 561.
The wife in this case would have been competent to testify to any matter not privileged because it was of a confidential nature, information about which had been obtained under the sanctity of the marital relationship. However, as above stated, she was not offered as a witness for the reason that it seemed to be assumed by all parties, including the attorneys for the defendant, that she was
incompetent. That this opinion was also held by the court was indicated by his statement that it was a matter which could be waived. However, through this mutual mistake it seems probable that a miscarriage of justice has resulted.
Carter v. State, 167 Miss. 331 , 145 So. 739 .
Upon consideration of all of these facts, and upon a mature consideration of the record as a whole, it is evident that this verdict is contrary to the overwhelming weight of the evidence and is such as to show passion, prejudice, or bias on the part of the jury. If it is asked out of what this prejudice arose, we have only to point to the unsupported testimony of the prosecuting witness to the effect that the defendant was unduly intimate with his wife. The "unwritten law" is still a powerful factor and influence upon juries in Mississippi, and the faintest breath of suspicion in this direction may have been more than sufficient to prejudice them against the defendant. As we view this case, the evidence was entirely insufficient to support this verdict, and this case should be reversed and the appellant discharged under the authority of Walters v. State, 153 Miss. 709 , 122 So. 189 ; Jarman v. State, 178 Miss. 103 , 172 So. 869 ; Sides v. State, 96 Miss. 638 , 51 So. 465.
A.M. Byrd, Assistant Attorney-General, for appellee.
It is not error for a circuit court to refuse to a party an instruction which presents substantially the same proposition contained in the instructions already given to that party.
Harmon v. State, 168 Miss. 417 , 150 So. 904 ; Barnes v. State, 164 Miss. 126 , 143 So. 475 ; Williams v. State, 163 Miss. 475 , 142 So. 471 ; Wright v. State, 162 Miss. 494 , 139 So. 869 ; Evans v. State, 159 Miss. 561 , 132 So. 563 ; Reeves v. State, 159 Miss. 498 , 132 So. 331 ; Taylor v. State, 158 Miss. 505 , 130 So. 502 ; Roberts v. State,.
A circuit court may limit the number of instructions given to a party to such as are necessary to announce the principles applicable to the case being tried, and when the applicable principles have been fairly announced, may refuse all others.
Dewberry v. State, 168 Miss. 366 , 151 So. 479 ; Harper v. State, 83 Miss. 402 , 35 So. 572; Mabry v. State, 71 Miss. 716 , 14 So. 267.
All of the evidence in this record, with the exception of the appellant's own thoughts in the matter, conclusively showed that the appellant had no good reason to run after the prosecuting witness and shoot him in the back, conclusively showed that when he did so he acted with malice and not in his necessary self defense.
If there be any substantial, reasonable testimony, and conceding that testimony to be true, which sustains the case of a party litigant, a peremptory instruction should not be granted against that party.
Justice v. State, 170 Miss. 96 , 154 So. 265 .
It is only in exceedingly rare cases where, from the whole circumstances, the testimony is contradictory and unreasonable and so highly improbable that the truth of it becomes so extremely doubtful that it is repulsive to the reasoning of the ordinary mind that this court will disturb the finding of a jury and grant a new trial upon the weight of the evidence.
Hinton v. State, 175 Miss. 308 , 166 So. 762 ; Dean v. State, 173 Miss. 254 , 160 So. 584 ; Stokes v. State, 172 Miss. 199 , 159 So. 294 ; Lewis v. State (Miss.), 163 So. 144; Thomas v. State, 129 Miss. 332 , 92 So. 225.
As incidental to his contention that he is entitled to a new trial, the appellant contends that he is entitled to favorable consideration by this court because the wife of the prosecuting witness did not testify upon the trial of this case. He admits that he did not offer her as a witness, but he contends that his attorneys and the court
and the State's attorneys were all wrong in assuming that she was not a competent witness and that the mutual mistake of law is somehow to his credit. That there is no merit in this contention of the appellant is apparent, because this record not only shows that the wife of the prosecuting witness was not offered as a witness by the appellant but it also shows that one of the appellant's attorneys first made the mistake of assuming that she would not be a competent witness, if a mistake was made, as it is here contended by the appellant.