Augustine v. State , 201 Miss. 731 ( 1947 )

ON SUGGESTION OF ERROR. Since the defendant, as a witness in his own behalf, freely admitted that he committed the crime of robbery on the occasion in question by putting his victim, Frank Mead, in grave fear of some immediate injury to his person, and that he took the sum of $78 in money, a billfold and a flashlight from him, the only remaining issue to be submitted to the jury was whether or not the weapon exhibited by him on that occasion was a deadly weapon, to wit, a real pistol, or was merely a paper-cap pistol as testified to by the defendant.

And it is true that the instructions for the State did not submit to the jury his defense that he was merely guilty of robbery without the use of a deadly weapon, but the defendant himself obtained an instruction to the effect that the burden of proof was upon the State to prove that the crime was committed by the exhibition of a deadly weapon, and that the use of such weapon "is a necessary and essential part of the crime alleged against this defendant and that unless the State has offered evidence which absolutely convinces you and each of you, beyond a reasonable doubt, that a real pistol which was in truth and in fact a deadly weapon was exhibited and used on the occasion set out in the indictment herein, then under the law you can not under your oaths sentence him to death on the charge herein."

It was for the consideration of the jury as to whether or not the testimony of the defendant was reasonable and believable when he said that he committed the robbery by the exhibition of a mere paper-cap pistol. Ordinarily, when a man goes to the place of business of another to rob the owner of his money by putting him in fear, he is prepared to kill if he deems it necessary in order to carry out his unlawful purpose, and the exhibition of a toy or paper-cap pistol is not in keeping with common knowledge and human experience. It is not, therefore, to be presumed that the jury when considering as a whole the State's instructions and that of the defendant hereinbefore quoted from, would have rendered a verdict against him which carried the infliction of the death penalty unless the jury had believed beyond a reasonable doubt that the weapon exhibited was a real pistol.

We are, therefore, of the opinion that the suggestion of error insofar as the instructions are concerned should be overruled, and no other error is assigned that would justify a reversal of the case.

Suggestion of error overruled.