Byrd v. State

Decision Date30 September 1929
Docket Number28231
Citation123 So. 867,154 Miss. 742
CourtMississippi Supreme Court
PartiesBYRD v. STATE

Division B

APPEAL from circuit court of Simpson county, HON. W. L. CRANFORD Judge.

Jack Byrd was convicted of murder, and he appeals. Reversed, and defendant discharged.

Reversed, and defendant discharged.

J. B. Sykes and J. P. & A. K. Edwards, all of Mendenhall, for appellant.

A witness cannot be corroborated by proving that on other occasions he made statements conforming to his testimony for such statements are but hearsay.

Owens v. State, 33 So. 720; Williams v. State, 31 So. 196; Johnson v. State, 32 So. 49.

In a prosecution for murder the defendant should be allowed to show that the prosecuting witness and the deceased were intoxicated at the time of the shooting.

Vintson v. State (Ala.), 115 So. 695; Ferguson v. State, 105 So. 435.

The verdict of a jury manifestly without substantial support of competent evidence or contrary to overwhelming weight thereof is reviewable by the supreme court.

Horn v State, 60 So. 1011; Skyes v. State, 45 So. 838.

Wm. A. Shipman, Assistant Attorney-General, for the state.

The wrongful admission of testimony where harmless is not reversible error.

Brown v. State, 87 Miss. 800, 40 So. 1009; Brown v. State, 85 Miss. 511, 40 So. 737.

Motive upon a trial for murder need not be shown.

Und. Cr. Ev., Sec. 323 (2 Ed.).

Where the judgment of the court below is clearly right and in accordance with law and justice this court will not reverse it, even in a criminal case because an erroneous instruction was given, if the error be irrelevant and immaterial and not likely to have misled the jury in the verdict which they rendered.

Mack v. State, 36 Miss. 77, cited in Wilkerson v. State, 44 Miss. 375; Hawthorn v. State, 58 Miss. 788; Cannon v. State, 57 Miss. 147.

The court will allow the verdict of a jury to stand unless manifestly wrong.

Pickens v. State, 64 Miss, 533; Helm, v. State, 67 Miss. 574, 7 So. 487; Hunt v. State, 72 Miss. 419, 16 So. 753; Thomas v. State, 61 Miss. 60; Matthews v. State, 123 Miss. 729, 86 So. 514; Hays v. State, 130 Miss. 381, 94 So. 212; Johnson v. State, 140 Miss. 889, 105 So. 742; Harris v. State, 135 Miss. 171, 99 So. 754; Gamblin v. State, 45 Miss. 659; Brown v. State, 103 Miss. 639, 60 So. 726; Jackson v. State, 105 Miss. 782, 63 So. 269; Felder v. State, 108 Miss. 580, 67 So. 56; Simmons v. State, 109 Miss. 605, 68 So. 903; Wells v. State, 112 Miss. 76, 72 So. 859; Crawford v. State, 146 Miss. 540, 112 So. 681; Thomas v. State, 129 Miss. 332, 92 So. 225; Spight v. State, 120 Miss. 752, 83 So. 84; Chandler v. State, 143 Miss. 312, 108 So. 724; Ransom v. State, 115 So. 208.

OPINION

GRIFFITH, J.

In the circuit court of Simpson county, appellant was convicted of the murder of Bilbo Cox, and, the jury having agreed on the punishment, he was sentenced to the penitentiary for life.

There was but one witness in chief for the state. This witness was Burkett Neely, a half-brother of the deceased, Bilbo Cox. The testimony of this witness is: That he and the deceased went, a little after six o'clock on Christmas Eve of 1928, from their home in Braxton to the town of D'Lo, and that they were around the said town with "a bunch of fellows" until some time after midnight, when they started home. That about one-half mile north of D'Lo on the Dixie Highway at a point known as the negro quarters, through which quarters this highway runs, there were three negroes in the highway and that one of them was the defendant. That one of these negroes tried to flag them down, whereupon the witness and Cox turned their car back, and while turning "somebody shot two times." That they then went back to D'Lo and reported the occurrence to two men, one of them the nightwatchman. That in about twenty minutes they resumed their journey towards home, and, when they again arrived at the said negro quarters, and in front of a negro cafe there, two negroes, one of whom was the defendant, flagged them, and one of the negroes said, "Stop." That they stopped, and that Bilbo Cox started to get out of the car, and, just as he did so, without another word having been spoken or any demonstration of any kind having been made, the defendant shot the deceased, Cox, at close range with a shotgun, from the effects of which Cox died on the second day thereafter. The witness expressly disclaimed any knowledge whatever of any reason or motive that could have prompted the act or any of the asserted acts of the defendant.

The testimony of the defendant opened with the introduction of more than a dozen witnesses, taken apparently from the more prominent and responsible walks of life, who testified that they knew the general reputation of the deceased, Cox, in the community in which he lived for peace and violence, and that his said general reputation was bad. The defendant also showed that the general reputation of the prosecuting witness for truth and veracity was bad, to which we shall refer again later. The state made no effort to refute or dispute this evidence. The defendant then made repeated efforts to show, and did show by the testimony of witnesses taken out of the hearing of the jury but which upon objection was not allowed to get fully to the jury, that both the said prosecuting witness and the deceased were intoxicated, and specifically that they were in that condition on the streets of D'Lo only two hours before the fatal difficulty, and that, as a consequence, they were disorderly on the streets; and by several eyewitnesses who were in no way related to or connected with the defendant, and who are in no manner impeached or discredited, that these two half-brothers in a condition which disclosed every evidence of the excitement of intoxication went into a negro cafe in said negro quarters some time after midnight, and flourishing pistols, they demanded whisky, and, not being able to obtain whisky, then announced that they were not so much looking for whisky as they were for somebody who shot into their car, and that when they found the person they were going to kill him, in which connection we may say just here that there is no evidence that their car was shot into by anybody. That, while thus engaged in this cafe, Wes Byrd, a brother of defendant, came into the cafe for the purpose of inquiring if Jim Smith had been there, and, being informed in the negative, Wes Byrd started to leave, whereupon the prosecuting witness, Burkett Neely, asked him where he was going, to which Wes replied that he wanted to go "up the street." That then the said Neely, with profane expressions, demanded that Wes wait until his hurry was over, and charged Wes with having a pistol, and demanded that Wes put up his hands and be searched, the said Neely announcing between oaths that he Neely was "the law." At this time the deceased, Cox, joined actively in the enterprise, menacing Wes Byrd with his pistol and with oaths and threats to kill him unless he immediately comply with the demand to put up his hands and be searched. The demand was complied with, and Wes was searched.

At this juncture, the negro John Williams, who was running the cafe and who was much frightened at what was happening, went out hastily through the back way to the neighboring house of Mr. Manning, an elderly white man who owned the property in which the cafe was being operated, and besought Mr. Manning to come to the cafe and see if he could not prevail on these young white men to leave or else desist from their threatening and dangerous conduct. Mr. Manning, however, was unwell from influenza and was unable to go. The defendant, a brother of Wes, was in a house next to Mr. Manning, and, hearing this conversation, and learning that his brother Wes was in trouble, came out and got the particulars thereof from the negro John Williams. The defendant then got a single-barrel shotgun and went to the front of the cafe and called his brother Wes. The latter then again attempted to go out, but the two white youths again barred the way, but, having become interested in the person who had called Wes from the front, the two white men then went to the gallery on the front of the cafe, and, seeing the defendant there with a gun, demanded to know what he was doing with it and demanded that he lay the gun down, and, with a stream of profanity pouring from both of them, they threatened to kill him unless he did so. The defendant during this time was insisting that he did not want any trouble, and that he had only come to get his brother. This was not in accordance with the commands of the two white brothers, and thereupon one of them called to the other to shoot the defendant, at which time one or both of the white men with pistols in their hands had got to the ground off the gallery and began firing. The defendant fell up against the wall, but not being wholly disabled from the wound, he raised his gun and fired the shot which resulted in the death of Cox. The two negroes then escaped over the gallery through the cafe; the white men still firing so that several bullets lodged in the front of the cafe.

The above statement of facts is necessarily made as brief as is consistent with an understanding of the main bearings of the case. The record is large, and the opinion to cover the more important questions will be of an unusual length even with the facts abbreviated to the extent that they are. For the same reason we are unable to deal with all the assignments of error.

It is assigned as error that the court permitted the state over the objection of the defendant to introduce witnesses to show that, when the two young white men returned to D'Lo after having been first flagged down in the negro quarters, they made certain statements to...

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