Rush v. State, 47312
| Decision Date | 28 May 1973 |
| Docket Number | No. 47312,47312 |
| Citation | 278 So.2d 456 |
| Parties | Dewitt RUSH v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Alford & Mars, Philadelphia, for appellant.
A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
In the Circuit Court of Neshoba County, appellant Rush was convicted of manslaughter (culpable negligence). A pistol bullet which killed Parker, a bystander, was fired by Rush, who was in a ruckus with Marshall. Rush received a sentence of twenty years in the penitentiary and appeals. We affirmed.
The facts show that, along with several others, appellant Rush was at the home of Ora Sue and Booker T. Parker, where he had been invited. Rush carried on his person two pistols which he fired several times (before any difficulty erupted) trying them out. There was testimony that Rush and others were shooting firecrackers during which time one Marshall threw some firecrackers on Rush. Someone threw a firecracker toward Marshall, who became angry. Rush and Marshall, both of whom were drinking beer, became involved in a dispute about the firecrackers. Testimony showed that Rush moved from the yard into the road where he pulled out the two pistols. Marshall was following him. Some testimony indicated that Rush was asking Marshall to get out in the road with him. At this point Rush fired into the ground and one bullet struck Marshall in his foot.
Others went near Marshall in an effort to persuade him to become disinvolved in the affray. Also, Rush was asked by bystanders to cease and to get into the car of Williams and leave in it with them. Then he put the pistols into his pocket and got into the car. Apparently Rush was in the car as if no leave when Marshall got in front of the car and, according to Rush, was coming toward him when Rush fired the pistol. Others said Marshall was standing still in front of the car, unarmed and doing nothing when Rush fired at him. Still other witnesses said Marshall was by the side of the car and near Rush when the fatal shot was fired. The bullet missed Marshall but struck and killed Booker T. Parker who was standing nearby. Some testimony indicated that Rush was attempting to shoot Marshall while other testimony was that he, while sitting in the car, just fired the gun haphazardly without carefully aiming. Parker was beside the car toward its front end. Several others were near Parker when he was shot.
Different details were reflected by different witnesses but the foregoing are the salient facts upon which decision is based.
It is first charged that reversible error was committed by the lower court in the early stages of the trial when a venireman on voir dire examination stated that he knew Rush and had a money judgment against Rush. The court asked the prospective juror if he could lay aside and dismiss from his mind the fact that he knew the parties and had an unpaid judgment against Rush, and if he could 'try this case on the testimony . . . and the law that will be given you in the form of written instructions by the court as if you had never had any dealings with this defendant in your life?' Said prospective juror answered affirmatively. Rush challenged said venireman for cause and the court overruled the challenge. Said juror was peremptorily excused by Rush and in fact did not serve on the jury.
There is no indication in the record that the prospective juror, Walton, had in his mind any fixed opinion about guilt or innocence of the accused. Simmons v. State, 241 Miss. 481, 130 So.2d 860 (1961). We find no error as to the court below denying the challenge for cause, especially where it is not shown in this record that Rush had exhausted his peremptory challenges and was thereby compelled to accept said juror. Chapman v. Carlson, 240 So.2d 263 (Miss.1970); Miss.Code 1942 Ann. § 1763 (1956).
Appellant contends that his requested instructions numbered 1, 5, 7 and 12 were erroneously refused and that such refusal denied his right to plead self-defense. We cannot agree with this contention that he was denied his right to plead self-defense because the state's instruction No. 3 and the appellant's instructions No. 4 and No. 9 adequately submitted to the jury the proposition of self-defense. Instructions granted both the state and the accused are to be read together. When considered together, if the instructions adequately instruct the jury there is no reversible error present. In view of the meaning and guidance expressed by the totality of instructions given both sides, we find there was no reasonable possibility that the jury in this case was misled by instructions to the prejudice of appellant. Holmes v. State,201 Miss. 509, 29 So.2d 312 (1947).
Instruction No. 7 requested by appellant contained a double negative. As written, it was confusing and was properly refused for lack of clarity.
Rush also contends that the court committed reversible error by granting the state's instruction No. 2, to-wit:
The Court instructs the Jury for the State of Mississippi, that criminal or culpable negligence is such gross negligence which under the circumstances then and there existing evidences a wanton, reckless and wilful disregard of human life, and the conscious and wanton and reckless disregard of the probabilities of fatal consequences to others as a direct result of the wilful creation of an unreasonable risk thereof; and if you believe from all the evidence in this case, beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis that at the time and place complained of, the defendant was then and there guilty of such culpable negligence and as a direct result thereof, he, the defendant did with a deadly weapon, towit: a pistol, kill and slay the deceased, Booker T. Parker, and if you so believe from all the evidence in this case, beyond a reasonable doubt and . . . then the...
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Billiot v. State, 54960
...general rule is that failure to excuse for cause is error when appellant has exhausted his peremptory challenges. See, e.g., Rush v. State, 278 So.2d 456 (Miss.1973). At the time this juror was peremptorily excused, appellant had not exhausted his peremptory challenges, and he did not do so......
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Shell v. State, 03-DP-0087
...challenges remaining to remove the jurors if they so desired. See Gilliard v. State, 428 So.2d 576, 580 (Miss.1983); Rush v. State, 278 So.2d 456, 458 (Miss.1973). Shell relies heavily on Mhoon, supra, to support his claim that the venire, and consequently the jury, were tainted by the pres......
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Bell v. State
...was a member of the same church and lodge, but who stated under oath that these facts would not influence his verdict. In Rush v. State, 278 So.2d 456 (Miss.1973), although a prospective juror knew the defendant and had obtained a judgment against him, where he stated that he could put the ......
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