Bergman v. State
| Decision Date | 06 April 1931 |
| Docket Number | 29355 |
| Citation | 160 Miss. 65,133 So. 208 |
| Court | Mississippi Supreme Court |
| Parties | BERGMAN v. STATE |
HOMICIDE. Killing committed in resisting unlawful arrest or rescuing prisoner unlawfully arrested amounts to manslaughter only evidence as to killing of officer, who was attempting illegally to make arrest for misdemeanor without warrant held to warrant conviction for manslaughter only (Code 1930 section 995).
A killing committed in resisting unlawful arrest or in rescuing a prisoner under unlawful arrest amounts to manslaughter only, under section 995, Code of 1930. Williams v. State, 120 Miss. 604, 82 So. 318 and other cases cited.
APPEAL from circuit court of Bolivar county, Second district, HON. W. A. ALCORN, Judge.
Alice Bergman was convicted of murder, and she appeals. Reversed and remanded.
Reversed and remanded.
W. W. Simmons, of Cleveland, for appellant.
Under all the circumstances of the difficulty which resulted in the death of Mr. Caraway, at most the crime could not amount to more than manslaughter, if that.
Every person who shall unnecessarily kill another either while resisting an attempt by such other person to commit any felony, or to do any unlawful act, or after such attempt has failed, shall be guilty of manslaughter.
Section 1016 of Hemingway's Mississippi Code of 1927, Section 995, Code 1930.
The contention of the defendant is that her case comes squarely under the provisions of this statute, and that under the facts and the law she could not be guilty of murder, and that the only crime of which the defendant could be found guilty is that of manslaughter, and this contention is amply borne out by the decisions of the Supreme Court of this state dealing with this section of the Code.
Williams v. State, 82 So. 318, 120 Miss. 604; Williams v. State, 84 So. 8, 122 Miss. 151; Williams v. State, 90 So. 705, 127 Miss. 851; Fletcher v. State, 91 So. 338, 129 Miss. 207; Richardson v. State, 121 So. 284.
Walter A. Scott, Jr., Assistant Attorney-General, for the state.
The jury was justified in believing that Tom Travillion shot and killed Mr. Caraway at the instance of the appellant herein. And if the jury did so believe, then it is clearly a case of murder and not of manslaughter.
The cases cited by appellant are not in point because each of them shows that the defendant pleading the foregoing section (section 955, Code of 1930), was the person unlawfully arrested.
The appellant, Alice Bergman, was indicted for the murder of one Burnett Caraway, in a joint indictment also charging Charlie Bergman, Tom Travillion, and Frank Bergman with said crime. The actual killing was done by Tom Travillion.
The appellant, Alice Bergman, was tried, convicted, and sentenced to life imprisonment in the state penitentiary from which she appeals.
The main contention of appellant is that the killing, at most, could amount to only manslaughter, and that she should have had a peremptory instruction.
It is not necessary to set out the facts in detail, but it appears that Burnett Caraway was the manager of Pecan Grove Plantation in Bolivar county, and that the defendants named in the indictment lived upon said plantation as tenants and employees thereon. That there was being built upon said plantation a brick veneer building and that a trowel was missed. Mr. Burnett Caraway, the deceased, went to the home of Alice Bergman, the wife of Jim Bergman, to get the trowel and it was given to him. While there he heard a disturbance or fuss going on in the house, and was told by appellant that the boys were disputing about cutting some wood. According to the appellant's witnesses, who were the only ones then present, Mr. Caraway remarked, "I bet I am going to kill some of them sons of bitches yet;" that he went back to his house and procured a shotgun and then returned to the house of Alice Bergman. That on seeing Mr. Caraway approach the house, Aug Bergman, one of the sons of appellant, ran out the back door and through the field, and was pursued by Mr. Caraway, After pursuing Aug Bergman some distance, Mr. Caraway fired a shot and wounded him. He thereupon took him, the said Aug Bergman, the son of appellant, and marched him back to house of Alice Bergman; but before he reached the house, Tom Travillion and one of the other defendants came out into the road armed with pistols, but marched along the road in company with Mr. Caraway and Aug Bergman until they reached the house. When they got to the house, Alice Bergman was "hollering" and wringing her hands, and asking Mr. Caraway not to kill her child, and calling upon the others not to let Mr. Caraway take her child away.
According to the state's witnesses, the appellant was calling out, "Shoot Mr. Caraway."
The proof shows that when they reached the house Mr. Caraway made Aug proceed down the road, and that Travillion and one of Aug Bergman's brother called upon him to stop; that Mr. Caraway told him to go on and he went on, and Travillion cursed and told Aug to stop and that he meant it.
A brother-in-law of Mr. Caraway, who was also present, but who was not introduced as a witness, was told by Mr. Caraway to pick up a stick and knock hell out of the appellant, and the brother-in-law proceeded to pick up a scantling, when one of the sons of the appellant, who was present with a pistol, told him not to hit his mother.
It is shown that, thereupon Mr. Caraway turned in the direction of this son of the appellant, who ran behind the...
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...261; Strickland v. State, 81 Miss. 134, 32 So. 921; Stenson v. State, 80 So. 506; Fletcher v. State, 129 Miss. 207, 91 So. 338; Bergman v. State, 133 So. 208; Jones State, 170 Miss. 581, 155 So. 430; Walker v. State, 189 So. 804. The verdict of the jury and the judgment and sentence of the ......
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...manslaughter. Malice is not predicable under the facts of the case before us.' 122 Miss. at 177-178, 84 So. at 14. In Bergman v. State, 160 Miss. 65, 133 So. 208 (1931), a plantation manager was killed by Tom Travillion, at the alleged insistence of Alice Bergman, at a time when the plantat......
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Shinall v. State, 44352
...execution of the appellant Cloudies Shinall in the gas chamber, as required by law. Affirmed. All Justices concur. 1 Bergman v. State, 160 Miss. 65, 133 So. 208 (1931); Shedd v. State, 203 Miss. 544, 33 So.2d 816 (1948); Williams v. State, 120 Miss. 604, 82 So. 318, 84 So. 8 (1919); William......