Boyles v. State

Decision Date26 May 1969
Docket NumberNo. 45461,45461
Citation223 So.2d 651
PartiesWayne BOYLES v. STATE of Mississippi.
CourtMississippi Supreme Court

Townsend & Young, Drew, for appellant.

A. F. Summer, Atty. Gen., by Guy N. Rogers, Asst. Atty. Gen., Jackson, for appellee.

BRADY, Justice:

This is an appeal from the Circuit Court of Sunflower County, Mississippi, wherein the appellant, Wayne Boyles, who had been indicted for murder for the July 7, 1968, killing of Claude Hughes at Mr. Rogers' store on Sunflower Plantation, having entered a plea of 'not guilty,' was tried and convicted of the crime of manslaughter and was sentenced to twelve years in the Mississippi State Penitentiary at Parchman.

According to the testimony of the appellant, he went to Rogers' store on two separate occasions on July 7, 1968, the first time being about noon. The appellant testified that the deceased was at the store about noon and that the deceased asked the appellant if he would buy him, the deceased, a beer. The appellant returned to the store about sundown, and at that time the deceased again asked the appellant about the beer he owed him. The appellant testified that he told the deceased that he did not owe him any beer. The appellant further testified that he had drunk one beer at the store at noon and two when he returned about sundown. Henry White, the father-in-law of the deceased, testified that the deceased first asked the appellant for a beer outside the store and again after the two had gone inside the store. Harry Rogers, the owner of the store, testified that the appellant had drunk three cans of beer and that the appellant got up and went over to the stool near the door where the deceased was sitting and said to the deceased, 'You have not bought me no beer, you x.x.x., I will kill you.' Tommy Hughes, son of the deceased, testified that the appellant pushed his father out of the door and stated, 'I am going to kill you.' The appellant denied making these threats. The deceased went outside the store in front of the appellant. Tommy Hughs testified that his father picked up a coca-cola case, but dropped it, and that the appellant ran to his pick-up truck to get his pistol. Mrs. Carroll testified that the appellant said either that he was going to kill the deceased or shoot him and that he was using vile language toward the deceased and that when she saw the appellant push the pistol which he had obtained from under the seat of his car into the stomach of the deceased, she fell down on the floorboard and that she heard two or possibly three shots. It is undisputed that when the appellant secured his pistol, which was then in the holster, and ordered the deceased to back up, the deceased grabbed with both hands the pistol and jerked appellant away from his truck. They wrestled over the gun. Three shots were fired, one striking appellant in the left side of the throat and two entering the deceased's body in the lower stomach or abdomen. Tommy Hughes testified that the first shot fired by appellant struck his father when his father was some nineteen steps away from the appellant. The deceased fell on the concrete porch, face downward, and was bleeding when Deputy Sheriff Herman Parker arrived. Parker pronounced him dead. When C. O. Sessums, Jr., Sheriff, arrived, he listened for a heart beat on deceased's back or for any sign of life, and heard none. Then he checked to see if Claude Hughes was breathing, but did not detect any sign of life.

The record further discloses that the appellant delivered himself to the police station at Drew, Mississippi, where he awaited arrival of the sheriff. When the sheriff arrived, the appellant voluntarily handed him the pistol; and at the time that the pistol was received from the appellant, the appellant stated that he had shot a man.

Several assignments of error are urged, some of which require but slight comment; nevertheless, we will accord them such consideration as is necessary. The first error urged is that the state failed to prove the corpus delicti by substantial evidence. A review of the pertinent facts as above set forth disposes of this assignment of error for the reason that the death of the deceased was conclusively shown, not only by the testimony of Mrs. Parker, Mr. Sessums and Mr. Rogers, based upon their observations at Rogers' store, but by the fact that the body was taken to the funeral home where it was undressed and where the two other bullet wounds in the abdomen were detected by the sheriff and the deputy sheriff.

It is undisputed that a difficulty arose and that the deceased was shot three times and that the shots were fired by the appellant. As was pointed out in Elliott v. State, 183 So.2d 805 (Miss.1966), the criminal agency as to the cause of the death can be established by circumstantial evidence and reasonable inferences drawn from the evidence. However, in the case at bar the cause of death was shown not only by circumstantial evidence but by actual evidence insofar as hearing the shots being fired is concerned. The record discloses that the weapon was a nine shot H. & R. double action revolver. The sheriff testified that he took six live 22 cartridges and three hulls or cartridges which had been fired from the pistol which appellant handed to him. The proof shows that there were three bullet holes in the deceased. Tommy Hughes testified that 'Mr. Wayne shot my father.' Even in the absence of this direct testimony on the part of the sixteen year-old son of the deceased, the circumstantial evidence presented sufficiently warrants the finding on the part of the jury that the deceased was shot and killed by the appellant; and therefore, we find that the State properly proved the corpus delicti. King v. State, 251 Miss. 161, 168 So.2d 637 (1964); Keeton v. State, 175 Miss. 631, 167 So. 68 (1936); Perkins v. State, 160 Miss. 720, 135 So. 357 (1931); Pitts v. State, 43 Miss. 472 (1870).

Insofar as the second error urged is concerned, which is that the court erred in overruling the appellant's motion for a new trial on the ground that the verdict of the jury was against the overwhelming weight of the competent evidence, we conclude with assurance that the impartial and objective testimony of Mrs. Carroll and Mr. Rogers, together with the other testimony offered by the witnesses in this case, establishes the fact that the appellant shot and killed the deceased and that there was ample evidence upon which the jury could find that the appellant was not in imminent danger of losing his life or of suffering great bodily harm. The basic testimony with reference to any great bodily harm which might have been done to the appellant was that relating to the deceased picking up a coca-cola case as he went outside the store. The record, however, shows that he dropped this coca-cola case and that at the time he was shot he had nothing in his hands except the barrel of the pistol which appellant had obtained from his truck, and was doing nothing which could possibly be considered as an act of aggression that would justify the taking of his life in the prevention thereof. Hinton v. State,246 Miss. 790, 151 So.2d 413 (1963). In addition, the appellant was six feet two inches tall and weighed 240 pounds, while the deceased was six feet tall or better and weighed between 160 and 170 pounds and was unarmed as far as the record discloses.

Though not in the order assigned, we turn to the fifth error urged, which is that the trial court committed error in permitting the admission of the appellant to be placed in evidence for the reason that the appellant was not warned of his constitutional rights after being taken into custody and prior to the time that he made the admission. Appellant relies for the most part upon Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966). The facts in the Miranda case differ completely from the facts in the case at bar. Moreover, the facts in the case at bar are remarkably similar to the facts in Nevels v. State, 216 So.2d 529 (Miss.1968). As is pointed out in the Miranda decision, supra, the purely voluntary and spontaneous admissions of a person who is in custody prior to interrogation are admissible. It is stated in Nevels v. State, supra, as follows:

Under all of these circumstances, the trial court admitted in evidence Nevels' confession as being volunteered and spontaneously given immediately after he came under the fence. The confession was properly admissible in evidence, not being in violation of the Miranda rule. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (10 A.L.R.3d 974) (1966). Miranda states: 'In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess a crime, or a person who calls the police to offer a confession on any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today. (384 U.S. at 478, 86 S.Ct. at 1630, 16 L.Ed.2d at 726.)' 216 So.2d at 530.

As was true in Nevels v. State, supra, so also in the case at bar. The statement 'I have shot a man' was given 'freely and voluntarily, without any compelling influences.' When the sheriff went into the police station at Drew, Mississippi, where the appellant had gone and voluntarily surrendered, the record discloses that the appellant handed the sheriff the pistol and...

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