Burge v. State, 55569

• Decision Date: 05 June 1985
• Docket Number: No. 55569,55569
• Citation: 472 So.2d 392
• Parties: William BURGE v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 392

472 So.2d 392

William BURGE v. STATE of Mississippi.

No. 55569.

Supreme Court of Mississippi.

June 5, 1985.

Rehearing Denied July 24, 1985.

J. Kennedy Turner, Philadelphia, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Leyser Q. Morris, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.

ROBERTSON, Justice, for the Court:

I.

This appeal follows the conviction of William L. Burge on the charge of manslaughter by culpable negligence under Miss.Code Ann. Sec. 97-3-47 (Supp.1984) for which he has been sentenced to twelve years imprisonment.

On appeal, Burge contends that the lower court erred in: (1) overruling his request for a peremptory instruction and subsequent motion for judgment of acquittal notwithstanding the verdict of the jury, (2) refusing to grant his motion for a new trial made on grounds the jury verdict was against the weight of the evidence, and (3) allowing the State to question Burge regarding his failure to flee when assaulted by the deceased.

The heart of this appeal is the all too familiar Weathersby ¹ wolf cry. Although his version of the homicide was the only one the jury had before it, Burge overlooks that his story suggests reasonable inferences consistent with guilt. We affirm.

II.

On September 22, 1983, Juanita Calloway was fatally wounded by William L. Burge, the Defendant below and the Appellant here. Burge had driven Calloway in his car to his home in order to get a long-sleeved shirt. The two argued over the fact that Calloway was apparently sleeping with one of her sons. Calloway displayed a knife. Burge, who carried a gun to shoot the snakes which lived in the walls of his house, pulled his gun, pointed it at Calloway and cocked it. The two continued to argue, and with the knife still drawn and the gun still pointed, Burge attempted to push Calloway back into his car. When Burge pushed Calloway, her hand hit the gun causing it to discharge and strike her. Burge immediately placed Calloway in his car and attempted to rush her to the hospital, but his car began to run out of gas so he stopped by a tire store and had an ambulance called. Calloway expired momentarily.

When the police arrived, Burge read and signed his waiver of Miranda ² rights and gave an oral statement basically identical to his later testimony at trial.

Burge was formally charged with the manslaughter of Juanita Calloway by culpable negligence in an indictment returned by the Grand Jury of Neshoba County, Mississippi and filed on February 7, 1984. The case was called for trial a week later, on Tuesday, February 14, 1984. At the trial the sole description of the events of September 22, 1983, was that provided by Burge, both in his own testimony and in the testimony of Sheriff J.A. Phillips, Jr. regarding Burge's oral statement made shortly after the homicide. What Burge told Sheriff Phillips, as related by Sheriff Phillips at trial, did not vary materially from Burge's trial testimony.

At trial, the prosecution extensively cross-examined Burge regarding why he did not flee, but rather pulled a gun, when confronted by Calloway with a knife.

At the conclusion of all of the evidence, Burge requested a peremptory instruction of "not guilty" which was denied. Thereafter, the case was submitted to the jury accompanied by liberal instructions encompassing the defense theories of the case, including instructions regarding justifiable homicide by reason of self-defense as well as excusable homicide by reason of accident or misfortune. With respect to Burge's plea of self-defense, the jury was correctly instructed that the State was required to "prove beyond a reasonable doubt that William Burge did not act in self-defense" before a guilty verdict could be returned.

The jury was further instructed that Burge was under no duty to flee when Calloway first appeared with a knife and that he had the right to stand his ground and employ reasonable force in defending against any threat she posed. Beyond that, the jury was given a Weathersby instruction to the effect that Burge was the only eye witness to the killing and that his version of what happened, if reasonable, had to be accepted as true unless substantially contradicted in material particulars by the physical facts or by facts of common knowledge.

Having received these instructions, the jury retired to consider its verdict and shortly thereafter found Burge guilty as charged. The Circuit Court thereupon sentenced Burge to the custody of the Mississippi Department of Corrections for a term of twelve years.

Burge filed timely a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial which on February 21, 1984, was overruled. This appeal has followed.

III.

A.

By virtue of the positive law of this state, the killing of a human being by the culpable negligence of another and without authority of law is made felonious and is denominated manslaughter. Miss.Code Ann. Sec. 97-3-47 (Miss.1972). Elaborating upon this rule, we have held that culpable negligence includes conduct evincing a reckless disregard for the value of human life or the conscious or wanton disregard of, or utter indifference to, the safety of another. See Gandy v. State, 373 So.2d 1042, 1046 (Miss.1979); Campbell v. State, 285 So.2d 891, 893 (Miss.1973); Grinnell v. State, 230 So.2d 555, 558 (Miss.1970); Moore v. State, 238 Miss. 103, 109, 117 So.2d 469, 471 (1960).

On the other hand, our law provides that the killing of a human being is not unlawful when committed in the defense of one's own person where there be reasonable grounds to apprehend a design on the part of the person killed to do some great personal injury and coupled with imminent danger of such design being accomplished. Miss.Code Ann. Sec. 97-3-15(f) (Supp.1984). Such a killing is in our law labeled justifiable homicide and is not punishable. By the same token, the killing of a human being is excusable homicide and hence not punishable when committed by accident or misfortune in the doing of a lawful act by lawful means with usual and ordinary caution and without any unlawful intent. Miss.Code Ann. Sec. 97-3-17(a) (1972).

B.

These rules well in mind, we recall that the evidence in this case is essentially without dispute. The only version of what happened to Juanita Calloway is that provided by William L. Burge. The question suggested is whether that evidence is reasonably susceptible of differing interpretations and inferences such that it was within the province of the jury to decide whether, on the one hand, Burge was guilty of manslaughter by culpable negligence or, on the other hand, whether the homicide was justifiable or excusable. Procedurally, the question is posed to us via Burge's first assignment of error that the trial judge erred in refusing to grant his motion for judgment of acquittal notwithstanding the verdict which, of course, was a renewal of his request for a peremptory instruction made at the conclusion of all of the evidence.

Burge asks this Court to hold, as a matter of law, that the evidence is insufficient to support the verdict and that he must be finally discharged. The standards of review we employ when considering such an assignment of error are familiar. We must consider all of the evidence, not just the evidence which supports the State's case, in the light most favorable to the State. May v. State, 460 So.2d 778, 781 (Miss.1984). This Court must accept as true the evidence which supports the verdict. Spikes v. State, 302 So.2d 250, 251 (Miss.1974). The State must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Glass v. State, 278 So.2d 384, 386 (Miss.1973). If the facts and inferences so considered point in favor of the defendant with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, the assignment of error should be sustained. On the other hand, if there is substantial evidence in the record of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions regarding the guilt of the defendant, we have no authority to disturb the jury's verdict. May v. State, 460 So.2d 778, 781 (Miss.1984).

Burge invokes here a refinement of this premise announced originally in Weathersby v. State, 165 Miss. 207, 209, 147 So. 481, 482 (1933), to the effect that, where the defendant is the only eyewitness to a homicide, his version of what happened, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by credible evidence, physical facts or facts of common knowledge. May v. State, 460 So.2d 778, 782 (Miss.1984); Westbrook v. State, 202 Miss. 426, 432, 32 So.2d 251, 252 (Miss.1947).

We emphasize that in this case the record reflects no material contradictions with Burge's version of the physical facts of what happened on September 22, 1983. This is not one of those cases which can be taken out of the Weathersby rule merely because the defendant's...