ANDERSON, J., delivered the opinion of the court.
Appellant was indicted and convicted in the circuit court of Tunica county of the crime of the murder of George F. Andrews, and sentenced to be hanged. From that judgment he prosecutes this appeal. No good purpose will be answered in setting out in this opinion the evidence of appellant's guilt.
The only assignment of error worthy of discussion is the giving of the only instruction given for the state, which follows:
"The court instructs the jury for the state that, if the jury believe from the evidence in this case beyond a reasonable doubt that the defendant, Willie Upton, deliberately murdered the deceased, George F. Andrews, as charged in the indictment herein, then the jury should find the defendant guilty as charged, and should return their verdict into open court in one of the following forms:
"First. `We, the jury, find the defendant guilty as charged.' If this is the verdict of the jury, the court will sentence the defendant to be hanged.
"Second. `We, the jury, find the defendant guilty as charged, and fix his punishment at life imprisonment in the penitentiary.' If this is the verdict of the jury, the court will sentence the defendant to imprisonment in the state penitentiary for the term of his natural life.
"Third. If the jury believe from the evidence in this case beyond a reasonable doubt that the defendant is guilty as charged in the indictment, but are unable to agree as to his punishment, the jury should not for this reason hang the jury, but should return their verdict into open court in the following form: `We, the jury, find the defendant guilty as charged, but disagree as to his punishment.' If this is the verdict of the jury, the court will sentence the defendant to imprisonment in the state penitentiary for the term of his natural life."
Appellant's criticism of the instruction is that it fails to sufficiently define the elements of the crime of murder. The criticism is well founded. The Attorney-General argues that the clause in the instruction "as charged in the indictment" was sufficient to incorporate into the instruction the definition of the crime of murder as set out in the indictment; in other words, his contention is that the instruction was pieced out and cured of its error by reference to the charge in the indictment where the elements of the crime were set out. This court has held more than once that errors in instructions cannot be cured in that manner; that all the instructions taken together must be complete without reference to the pleadings in the case.
This erroneous instruction for the state, however, was cured by the instructions for appellant. The court gave 17 instructions for appellant. Especially in two of those instructions the elements of the crime of murder were properly defined. And the instructions given appellant were not in conflict with the erroneous instruction given the state. The error in the instruction for the state is not that it improperly defined the elements of the crime of murder, but that it failed to define them at all. As stated, they were properly defined in the instructions given appellant. Therefore the instruction given the state and those given appellant defining the elements of the crime of murder, not being in conflict, fit into each other, and could not have misled the jury. All the instructions construed together put to the jury every phase of the law applicable to the case.
We find no error whatever upon which to reverse the judgment.
Affirmed and execution set for June 18, 1926.
Affirmed.