The comet., 1881-06-11
SUPREME COURT DECISIONS.
APRIL TERN. 1851.

| SAMUEL HAWTHORNE,
VS..
STATE OF MISS.
Error TO the Circuit Court of Warren
} county Hon. Upton NJ. Young Judge.
/, Plaintiff in error was indicted, tried and
! convicted at the October term of the Cir
cult Court OF Warren county, of murder,
and in accordance with the verdict of the
jury, sentenced to Imprisonment for life
in the State penitentiary. Accused was
indicted, tried and convicted of murder
under 262S Code of 1871, which is as fol-
lows: "The killing of human being
without the authority OF law by any means
J or in any manner, in the following eases !:
when done with u deliberate design to eff
feet the death of the person killed or of
any human being. sit is urged by
counsel for appellant that this section of
the Code defining murder has abrogated
the common law doctrine of implied malice
from the use Of Il deadly weapon in the
homicide and that the words deliberate de-
sign were not synonomous with malice
dforethOagh and that consequential if eX-
press malice were not shown, the accused
could only be convicted Of Manslaughter.
On the trial the following instructions
among others were gwen for the State.
"2. Murder is the killing Of human |
being with malice aforethought -" |
50. Malice may also be implied from the |
deliberate use of deadly weapon. And |
| if the jury believe from the evidence be-
yond every reasonable doubt arising there
| from that the defendant shot and killed the
deceased with deadly weapon, and that
such killing was done deliberately, then
the law will imply the malice requisite to
murder, and the burden of showing that
killing was not malicious will be upon the
defendant, and unless he does this to the
satisfaction of the jury, they will find him
guilty of MURDER
SO. Malice may also be inferred from any
circumstances of barbarity and cruelty at
tending the killing, and if the jury believe
from the evidence beyond every reasonable
doubt arising therefrom, that defendant
killed deceased, and that he did it in
cruel and barbarous manner, then the law
will declare the killing to be malicious and
therefore murder, and it VIII then deyoyc
upon the prisoner to show that it was
done either in the heat Of passion lin which
case 1t would be manslaughter,) or that it
was does% Matthews, theyise of him
selCn
For the defendant the court gave the fol-
lowing instruction, among others {,
80. The law presumes that the prisoner
is innocent and the burden of proof is on y
the State to show that he is guilty; and if I,
upon all the evidence the. jury entertains n a
reasonable doubt as TO whether the killing I
proceeded from murderous intent on the t
part Of the prisoner or on the other hand t
from the principle of self-defcnsc, they =
must find the prisoner not guilty" u
ii. L. Simrall, l.. w. Magruder, Il. V. =
Booth and NJ. Marshall for plaintifn error. i
Il. q. Catchings for defendant in error a
CAMPBELL, j., q
1. The law implies malice from the Use of Il
a deadly weapon, and every homicide by h
the use Of such weapon Is presumed to be ol
murder ~
2. There Is no difference In the definition - -
Of the word murder between the Act of II
j lls
Art. l6j, p. 600, of Code of 1851, ana z262s, n
Code Of 1871. The Act of 1889 has the A
phrase premeditated design" which in n
he Codes is changed into ''dcliberate de- n
'ign," and these prases are equivalent and q,
are used conyertibly in defining murder 81
3. II Is sufficient charge in an indictment IL
'or murder "that the defendant did fcloni- OF
,usly, wilfilly and of his malice afore- In
thought, Kill and murder the deccased."- v,
ode 1871, S2S02. IN
4. We reject the suggestion that our -,
tatute alters the common law as to implied II
malice, and that murder is limited BY the Al
tatute TO killing with "express malice" II
md adhere 10 the view of our predecessors, b,
hat murder is the unlawful killing of al
luman being with malice expressed or inn cl
,licd, and that malice is implied from any N,
killing, which the law does not +
make justifiable or excusable. !.
b. The 9th and 9th instructions for the ~ II
state are erroneous in not adding the quail IN
fcation ''unless they arise out Of the evI- In
lence produced. against him." Besides
his, the 9th instruction declares that the
burden Of showing that the killing was not
Malicious was upon the prisoner, and un-
ess he did this 10 tie sdtiSfdctioa Qf tie jury
Ie was TO be found guilty. IL not only inn
'osed ON the accused the duty to show that ut
he killing was not malicious, bat suggests IL
hat he must furnish q preponderance of of
violence in support of this negative. Ia
o. The true rule is, il, from all the evil au
ence there is n reasonable doubt a. to the ~,
haractaF Of the killing, the prisoner must y.
e acquitted. Ii is not incumbent on him u y,
D prove his innocence. The State must Tn
rove that he is guilty. vo
Z. 1t is held in Head VS.. State, ~ Miss, WI
hat in such cases the accused is guilty of ra
lurder, "unless he has by his eUidoaee to
T0ged excuse or Justification. In Evans
5. State, A. Miss, 762, it was said that IL m.
fas necessary after the State had proved
he killing, for the accused to show by
ear and sdtisfdctody Procf that there was
ctual necessity for killing the deceased.
We disapprove this doctrine.
8. The settled rule is that all the instruc- Jo
ons are to be considered together, and IL til
) whole, they correctly announce the law, tic
reversal will not occur although some Of ia
le charges In themselves may be incorrect. do
ut IL should very clearly appear that any ,.,,
rror in the instructions for the State was ",
fectually cured and corrected by instruc- III
ons for the accused bearing on the point. sci
0. We cannot say with confidence that sol
le evil in the Instructions for the State nc,
as efectually cured by those given for the pe
,cused. Error was committed against f.,
i'm. Itis not certain that IL is completely ~
.moyed. III
Judgment reversed, and a new trial gr'
sarded. on
fro BE REPORTED -