Brown v. State

• Citation: 169 So. 837,176 Miss. 448
• Decision Date: 12 October 1936
• Docket Number: 32362
• Court: United States State Supreme Court of Mississippi
• Parties: BROWN v. STATE

169 So. 837

176 Miss. 448

BROWN v. STATE

No. 32362

Supreme Court of Mississippi

October 12, 1936

Division B

Suggestion Of Error Overruled October 26, 1936.

APPEAL from circuit court of Forrest county HON. W. J. PACK, Judge.

Charlie Brown was convicted of homicide, and he appeals. Affirmed.

Affirmed.

Hearst, Pittman & Pittman, of Hattiesburg, for appellant.

All we can make of this case is that the state at most made a weak doubtful, and uncertain prima facie case against the appellant, if in fact it did that much, and after that, the appellant and his witnesses made a complete, full, and sufficient case of self-defense, and this defense is substantially and overwhelmingly proved, and there is not anything in the whole record for the state or for the appellant that denies one single material element of the defense.

Jones v. State, 60 So. 735; Houston v. State, 117 Miss. 311, 78 So. 182; Patty v. State, 126 Miss. 94, 88 So. 498; Walters v. State, 122 So. 189.

The appellant submits that the circuit court committed reversible error in permitting the testimony of a witness with reference to the appellant being near a whiskey still or a place where the whiskey still was found. This testimony was all irrevelant, incompetent, and immaterial. Of course, and this is evident from the record, the only effect such inquiries and answers had on the jury was to prejudice them against the appellant.

The appellant submits that it was reversible error for the court to permit the introduction of the testimony of the sheriff, George W. Boone, with reference to the demonstration which he made with the gun used in the homicide, and the pattern of the shot made by the gun.

Our objection to this testimony is two fold, first, it was immaterial under the evidence in this case exactly how far apart the parties were, and in the second place the demonstration made by the sheriff was not qualified as competent evidence.

And since it came from the sheriff an officer of the court, prominent in the county, and exercising extraordinary influence around the court room, and his exhibition of the gun in illustrating his demonstration, and in the exhibition and introduction of the pattern made by the gun, which was an exceedingly horrifying thing for the jury to see, had powerful prejudicial effect on the trial and undoubtedly operated to the injustice and prejudice of the appellant.

Webb M. Mize, Assistant Attorney-General, for the state.

We submit that a case was made out against the defendant. On motion to exclude and for a peremptory charge evidence tending to prove guilt must be considered most favorably to the state.

Redwine v. State, 149 Miss. 741, 115 So. 889; Pruitt v. State, 163 Miss. 735, 140 So. 683; Chisholm v. State, 168 So. 479; Johnson v. State, 168 So. 479.

Certainly, the testimony for the state could not be unreasonable and if it stood alone, it was sufficient to convict.

Justice v. State, 170 Miss. 96, 154 So. 265.

It was up to the jury to decide what witnesses were testifying truthfully and what parts of the testimony were to be believed. As a verdict on conflicting evidence must stand, this case cannot be reversed.

Evans v. State, 159 Miss. 561, 132 So. 564; Stewart v. State, 154 Miss. 858, 123 So. 891.

It is always permissible to show motive in a homicide case. The case of Murphy v. State, 129 Miss. 634, 92 So. 694, held that in that case evidence that deceased and defendant had been engaged in the unlawful manufacture of liquor was permissible to show motive. In the case at bar, this testimony was admissible as a circumstance in connection with the other defense to show motive and it was properly coupled with other facts which tended to show guilt and was, therefore, admissible.

Morris v. State, 148 Miss. 680, 114 So. 750.

The fourth assignment of error is that the court erred in permitting the introduction of the testimony of the sheriff, George W. Boone, about the demonstration which he testified he made with the gun with which, it is said, deceased was killed and about the pattern he made with the gun and in permitting the pattern itself to be introduced before the jury. This testimony was most competent, as it showed that the deceased was twenty feet away from the defendant at the time the fatal shot was fired. This evidence was very material to show that appellant did not shoot deceased in self defense and to show that appellant was not reasonably apprehensive of death; and also to show that deceased was not near enough to defendant to attempt to cut him with a knife.

LeBarron v. State, 107 Miss. 663, 65 So. 648; Jones v. State, 148 Miss. 531, 114 So. 343.

OPINION

Griffith, J.

Appellant admitted that he shot and killed the deceased with a double-barreled shotgun, and defended on the asserted ground that the deceased was advancing upon him with a knife, threatening at the time to kill the appellant. The eye-witnesses introduced on behalf of the state testified that, at the instant the fatal shot was fired, the deceased was approximately twenty feet away from the appellant, and it therefore became a question for the determination of the jury whether the issue of self-defense should be solved in favor of the accused. The jury was fully and correctly instructed as to the law upon that issue, and they...