Bowen v. State
| Decision Date | 07 November 1932 |
| Docket Number | 30136 |
| Citation | 164 Miss. 225,144 So. 230 |
| Court | Mississippi Supreme Court |
| Parties | BOWEN v. STATE |
1 HOMICIDE.
Giving instruction upon murder charge, where defendant's explanation of killing as in defense of home was uncontradicted, held error (Code 1930, section 988, clause e; section 995).
2. CRIMINAL LAW.
Defendant's explanation of homicide, not contradicted directly or by fair inference, must be accepted as true.
3. HOMICIDE. Where defendant sought to justify killing as in defense of home, instruction killing could not be justified unless to save defendant's life, or prevent great bodily harm, or unless defendant was in immediate danger, held erroneous as ignoring defense of habitation (Code 1930 section 988, clause e; section 995).
Instruction in substance told the jury that there was no justification in law for the shooting of one individual by another upon the plea of self-defense, unless it was done in order to save the life of the individual firing the shot or to save her from great bodily harm, or unless such individual was then in any immediate danger, real or apparent.
4 HOMICIDE.
Person is entitled to defend home with force against unlawful entries and to prevent, crimes from being committed therein (Code 1930, section 988, clause e; section 995).
5. HOMICIDE. Married woman's killing of deceased to prevent his reentering her home and committing assault upon her held not to constitute murder (Code 1930, section 988, clause e; sections 991, 995).
Facts disclosed that, on several occasions when defendant's husband was away, deceased had entered her home, had improperly conducted himself, and had solicited her to commit adultery with him; that on the occasion of the shooting, after having been told to stay away, deceased again entered defendant's home for the same unlawful purpose; that, as defendant threatened deceased with a shotgun, he left by one door, but attempted to reenter through another, at which time defendant shot him.
HON. WM. A. ALCORN, Judge.
APPEAL from circuit court of Bolivar county, HON. WM. A. ALCORN, Judge.
Mrs. Josie Bowen was convicted of murder, and she appeals. Reversed and remanded.
Reversed and remanded.
Colson & Guy, of Greenwood, for appellant.
The court below erred in overruling defendant's motion to exclude the evidence offered by the state and direct a verdict of not guilty on the part of the defendant.
There were no eye witnesses to the homicide nor anyone to testify on the part of the state as to what actually took place between the deceased and the defendant prior to the infliction of the mortal wound.
The burden is on the state to prove her guilty beyond every reasonable doubt and overcome the presumption of innocence.
King v. State, 21 So. 235; Houston v. State, 78 So. 182; McGehee v. State, 104 So. 150; Lee v. State, 134 So. 185.
The jury only received a small part of the statement and the acts of the defendant when, as a matter of fact, in order to reach a just verdict, they should have had the entire conversation and the acts of the defendant before them as was testified by the witness, in the absence of the jury.
The excluded evidence shows that the deceased was the aggressor by making persistent advances towards defendant and improper proposals previous to the day on which the fatal shooting occurred and ought to have been permitted to have gone to the jury so that they could have from this evidence reached a fair and just verdict as to who was the aggressor on the fatal day.
The court below erred in giving the state its last instruction. This instruction impresses on the jury the fact of the use of a deadly weapon and practically nullifies the defense set up by the defendant. There had been a full disclosure of the fatal difficulty by the defendant, and it should have been left with the jury to decide her guilt or innocence from the evidence and not from the presumption of guilt by the use of a deadly weapon unexplained.
W. D. Conn, Jr., Assistant Attorney-General, for the state.
The admission of the appellant that she killed the deceased necessarily carried with it under the evidence, an admission that she killed him with a deadly weapon, from which, in the absence of any explanation thereof, an inference that the killing was with malice arises.
Jackson v. State, 149 So. 683.
If the physical facts contradict the explanation, and if it appears to the satisfaction of the jury that it is untrue, then the mere fact that the defendant testified to such statement does not of itself entitle the defendant to an acquittal.
McGehee v. State, 138. Miss 822, 104 So. 683.
Whole conversations are admissible so far as they are relevant to the issue being tried.
Collins v. State, 148 Miss. 250, 114 So. 480.
The fact that she stated that she wanted to go to the sheriff and give herself up was not a part of the conversation regarding the circumstances surrounding the killing and in addition is not relevant testimony. Courts generally exclude such evidence on the ground that they are self-serving and irrelevant.
The court has held that it was error to exclude evidence of prior difficulty between defendant and deceased shortly before the homicide, as bearing on the question who was the aggressor and as showing provocation.
The court instructs the jury for the State that the law tolerates no excuse and accepts no justification for the shooting of one individual by another upon a plea of self defense unless it be reasonable so to do, in order to save the life of the individual who fires the shot, or to save her from great bodily harm. At the very time the shot was fired that inflicted the wound, and in this case, if you believe from the evidence, beyond a reasonable doubt, that the defendant, Mrs. Josie Bowen, wilfully, feloniously and of malice aforethought, shot and killed the said Melvin McFerrin at a time when she, the said Mrs. Josie Bowen, was not in any immediate danger, real or apparent, of suffering great bodily harm, at the hands of said Melvin McFerrin, then the defendant, Mrs. Josie Bowen, is guilty as charged, and it is the sworn duty of the jury to so find. There is nothing about a deadly weapon in the instruction and nothing in the instruction with reference to inferences to be drawn from the use of a deadly weapon and it was not error to give this instruction.
Argued orally by T. A. Guy, for appellant, and by W. D. Conn, Jr., for appellee.
The appellant, Mrs. Josie Bowen, was indicted and convicted of the murder of Melvin McFerrin, and was sentenced to life imprisonment.
There were no eyewitnesses to the killing, and the proof of the state, at its strongest, showed that the deceased, McFerrin, was killed at the home of the appellant within a short time after a witness for the state had seen McFerrin approaching the home of the appellant, and that he turned at the rear thereof and disappeared from view. The road ran to the rear of the appellant's home and within two or three feet of the back door of her house.
The deceased, Melvin McFerrin, was first seen after the shooting by other people, with his feet on the grass at the edge of the road next to the house, and his body lying in a northwesterly direction along the road. He was shot in the breast; the shot having ranged downward, coming out in the rear about the lower part of his shoulder blade.
The deceased, the appellant, and her husband, were neighbors, and lived on the same plantation. There were two other families living near the house of the appellant.
After the shooting, the appellant came out of the front of the house with a gun and some shells in one hand, and her baby in the other arm, and went in the direction of the nearby house of her sister and her sister's husband, at which place the husband of the appellant was at that time. When asked what was the matter, she stated to these parties that she had killed the deceased, that she had to do it, and that she was going to the sheriff and surrender. This latter part of her statement was not permitted to go to the jury. The appellant and her husband then went to the sheriff and she surrendered.
The only facts pertaining to the actual killing and the reason therefor were related by the appellant. According to her statement, the deceased had been attempting to show her attentions and flirt with her, and had gone to her house and conducted himself in a way of which she did not approve, in the absence of her husband, and, on his first visit in which he had so conducted himself, her sister was present; that appellant had asked him to leave and not to come to her home when her husband was not there; that he continued to annoy her with his attentions when passing and to conduct himself in a way of which she did not approve that on a former occasion, after he had been warned to stay away, he came to her house, when she was alone, and proposed sexual intercourse with her, which proposition she rejected and ordered him to leave, stay away, and never return. Some days after this happened, she reported the matter to her...
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