
    William Sullivan v. State of Mississippi.
    [46 South., 248.]
    1. Criminal Law and Procedure. Homicide. Murder. Instruction. Harmless error. Assassination. Alibi.
    
    In a murder case where the deceased was shot from ambush and the defense was an alibi, an instruction for the state, authorizing a conviction upon a finding from the evidence, beyond every reasonable doubt arising therefrom, that the defendant wilfully, deliberately and of his malice aforethought shot and killed the deceased, does not constitute reversible error, although it omits the qualifying words “unlawfully” and “feloniously.”
    2. Same. Error cured. Defendant’s instructions.
    
    The harmless error of the instruction in this case, if erroneous at all, was cured by instructions given for the defendant requiring the jury to acquit, unless they found that the killing was both “unlawful” and “felonious.”
    From the circuit court of Lincoln county.
    Hon. Moyse H. Wilkinson, Judge.
    Sullivan, appellant, was indicted, tried and convicted for the murder of one Pickering, sentenced to the penitentiary for life and appealed to the supreme court.
    The deceased was killed while in a buggy with his brother, driving along the highway at night. He was shot from ambush, and instantaneously killed. There was ample proof on the part of the state to show prima facie that appellant was the guilty party. In defense appellant sought to prove an alibi. On appeal the principal assignment of errors was predicated of the court’s action in granting the instruction asked by the state, set forth in the opinion of the court.
    
      A. G. <$> J. W. McNair, for appellant.
    Every indictment charging murder must contain every essential of the crime, or it will be bad on demurrer. Likewise, when, on the trial of a defendant for murder, the court attempts to charge the jury, every element necessary to constitute the crime must be embodied in the charge.
    The instruction for the state is fatally defective in that it charges the jury to convict, if they believe beyond a reasonable doubt that the defendant willfully and deliberately and of malice aforethought killed deceased, and fails to add the two very important and necessary elements of unlawfullness and feloniousness. For, unless a homicide is unlawfully and feloniously committed, no matter how deliberately it may be carried out, the act is not murder. Johnson v. State, 89 Miss., JVl, 42 South. 606.
    
      Clem V. Ratcliff, on the same side.
    The instruction for the state is manifestly erroneous. One may willfully and deliberately kill another, and be warranted in law in so doing.
    
      George Butler, assistant attorney-general, for appellee.
    As the only issue in this case was whether the appellant shot the deceased from ambush, and under the circumstances the killing of deceased by whomsoever committed was an atrocious assassination, it must follow that the instruction for the state was not erroneous. The issue was not as to how appellant killed deceased, or what motives caused him to kill him, but whether or not appellant did the shooting.
    But even if the instruction were erroneous, the error was cured by the court’s action in granting full and ample instructions for the defendant.
   Oalhoon, J.,

delivered tbe opinion of tbe court.

Tbe court gave only one intruction for the state, to-wit:

“Tbe court instructs tbe .jury for tbe state tbat, if they believe from tbe evidence in tbis case beyond a reasonable doubt tbat tbe defendant willfully, deliberately, and with malice aforethought shot and billed Hardy Pickering, be is guilty as charged ■in tbe indictment.”

It is objected tbat tbis is defective because it leaves out tbe words, “unlawfully and feloniously.” We think there is nothing in. tbis objection, tbe shooting being from ambush. All instructions must be based on tbe facts, and in tbis case tbe •only question was whether tbe defendant shot Pickering from ambush on tbe roadside. If be did so, and tbe jury believed be did, be is manifestly guilty of murder,- and if, under tbe facts, tbe court bad charged merely tbat if Sullivan shot Pickering, tbe instruction would perhaps have been valid for tbe reason tbat, if be shot and did tbe killing, it was plainly murder and nothing else. But, if we could be mistaken in our ruling on tbe point made, tbe defendant below himself cured any error of tbat sort by asking, and tbe trial court gave them, twenty in■structions elaborately prepared by very skillful counsel, in tbe very first one of which tbe court charged tbat tbe jury could not convict unless satisfied beyond all reasonable doubt “tbat tbe •defendant willfully, unlawfully, feloniously, and of bis malice aforethought-killed and murdered tbe deceased.”

Tbe other points made, wie think, on tbe record as presented, require no notice.

'Affirmed.  