majority">Sykes, J.,

delivered tbe opinion of tbe court.

*316The appellant was indicted and convicted of unlawfully carrying a concealed weapon, from which conviction he appeals to this court. His defense was “that he was threatened, and had good and sufficient reason to, and did, apprehend a serious attack from an enemy.” This is a defense to this charge under section 1105, Code of 1906, Hemingway’s Code, section 831. This section further provides that the burden of proving this defense shall be on the accused. The testimony was conflicting upon this proposition. The jury could have found on this testimony either for or against the defendant. The state was given the following instruction:

“The court instructs the jury for the state that, even if you believe that the accused was threatened and apprehended an attack from his enemy, still that is not sufficient unless the defendant by a preponderance of the testimony convinces your mind that he had reasons to apprehend a serious attack from an enemy that would do him great bodily harm.”

While it is true that under the statute the burden of proving this defense is upon the defendant, at the same time it remains true that, so long as there is a reasonable doubt as to the defendant’s guilt or his probable innocence, the state has not satisfactorily made out its case. Strother v. State, 74 Miss. 447, 21 So. 147. The entire testimony must only raise a reasonable doubt as to the guilt of the defendant. It is not incumbent on the defendant to prove this- defense to the satisfaction of the jury by a preponderance of the evidence. The above instruction is therefore erroneous.

Reversed and remanded.

Citation profile

Relationships

How this case has been treated — in progress