Dixon v. State

Smith, C. J.,

delivered the opinion of the court.

Appellant having’ been convicted of the crime of murder, appealed to this court, and the judgment of the court below was at a former day affirmed. His counsel now suggest that we erred in so doing, for many reasons, three of which seem to be that the court below .erred: First, in granting the state’s first and only instruction; second, in not giving the jury a definition of the crime of murder; and, third, in granting the instructions requested by appellant.

The instruction granted at the request of the state charged the jury that “if you believe from the evidence beyond a reasonable doubt that the defendant deliberately murdered the deceased, you will find him guilty, and may return either of the following verdicts,” etc. The objection to this instruction seems to be that it omits the qualifying words “without authority of-law,” and the cases of Ivy v. State, 84 Miss. 264 , 36 So. 265 , and Rutherford v. State, 100 Miss. 832 , 57 So. 224 , are cited as establishing that the omission constitutes fatal error. In these cases the instructions condemned charged the jury that: ‘ ‘ Murder is the killing of a human' being with the deliberate design to effect the death of the person killed.” This, of course, was an incomplete definition of murder, because the killing, however deliberate, was not murder unless it was done “without authority of law.” *699 The instruction in the case at bar however, made no attempt to define murder, and the nse of the word “deliberate ’ ’ therein was mere snrplnsage. If it had instructed the jury to find appellant guilty if he ‘ ‘ deliberately killed the deceased,” the objection waived would he well taken.

No instruction was asked by either the state or defendant requesting the court to define the crime of murder, and therefore, under section 793 of the Code, it was without power to so instruct them; consequently it did not err in not so doing, for error cannot be predicated upon the failure of the court to do a thing which it is expressly forbidden by the statute to do.

If the instructions granted at the request of appellant are erroneous, he is without just cause of complaint thereat, for the reason that the court simply did what he requested it to do. Concensus tollit errorem.

If there is any merit in appellant’s second and third objections, it is that the section of the Code here under consideration should be repealed and the judges be permitted to discharge their common law duty of aiding the jury in arriving at its verdict, and not merely act as umpire in a game, sometimes of chance, participated in by opposing counsel.

Overruled.