Carson v. State, 46674
| Decision Date | 01 May 1972 |
| Docket Number | No. 46674,46674 |
| Citation | 261 So.2d 462 |
| Parties | Brister CARSON v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
J. Mack Varner, Vicksburg, James R. Christenberry, Rolling Fork, for appellant.
A. F. Summer, Atty. Gen., by Edwin A. Snyder, Sp. Asst. Atty. Gen., Jackson, for appellee.
The appellant was convicted of murder and sentenced to life imprisonment by the Circuit Court of Sharkey County, Mississippi.
On appeal appellant argues two assignments of error combined into one, as follows:
That the Lower Court erred in denying the Defendant's Motion for a Directed Verdict of not guilty and in refusing Defendants Instruction Number Fifteen.
The errors assigned require a review of the evidence. At about 12:30 a.m. on September 14, 1970 appellant killed Sidney Alexander at decedent's home by shooting him with a pistol. Shortly after midnight appellant picked up his wife at the home of Lonzy Williams and drove to the home of decedent where he saw a light in the middle room and on the front porch. He turned in at the home of the decedent and parked his car across the sidewalk. He had picked up his wife, Ella Mae, for the purpose of going to the home of Ernest Fisher and wife to discuss keeping a place of business open during the week which was operated by his wife only on weekends.
Appellant testified that when he walked up on the front porch of decedent's home, which faced west, the front porch light flicked out and he knocked on the door but the light in the middle room remained on. He stated that he saw the decedent in the corner of the front room and he heard some kind of gun being loaded 'with a magazine or something.' He knocked, identified himself and decedent told him to come in. Appellant stated he engaged in a conversation with decedent and inquired if he (decedent) was telling the truth about 'the NAACP card, or either give me the.$7.00, or either tell me what you did with the.$7.00.' After a detailed account of their conversation, appellant said that the decedent reached into the southeast corner of the room with his left hand; that the decedent picked up a gun and turned to point the gun at the appellant and in the appellant's own words, 'Well, when he practically got it on me, I just reached and got my gun and just commenced to squeezing the trigger.'
Appellant testified that after he had fired the second shot that decedent 'hollered' and he heard something fall over in the corner and he left immediately.
During the occurrence described above, appellant's wife got out of the car. Appellant then drove out into the country and returned to the 'apartment room' that he was renting from Mamie Williams and asked her to call the police about 3:00 a.m.
Appellant had previously seen decedent at the cafe operated by his wife about 1 1/2 to 2 hours before the shooting and when asked why he didn't talk to decedent at that time about the business, replied: Appellant did not recall that he fired his gun 4 times.
Sidney Alexander, Jr., the 16 year old son of the decedent, was seated on the porch of the home of Vestile Myles with Dorothy Myles and observed the appellant stop at the home of his father. He testified about 2 or 3 minutes later he heard 4 shots and appellant came out of the house, backed his car about 2 blocks and left. After the first 2 shots were fired he heard a loud scream and a lady came running from 'around that way.' Before appellant left the scene, he ran to some bushes at a house next door and observed the appellant on his father's porch. The witness entered the house and found his father on the floor in the middle room and he and his girl friend placed his father in an automobile and he carried his father to the hospital. His father was dead when they reached the hospital. The wounds were described as two in the left side above the hip, one on the left leg and a 'scrape across the knee.' He then returned home and found his father's gun in the southeast corner of the front room. He took the gun into the middle room, found the clip for it on the dresser and placed the gun on the bed in that room.
Robert Earl Alexander, the 15 year old son of the decedent, was asleep in the middle room at the time the event occurred and was awakened by the gunfire. His father staggered into the middle room and fell on the floor and did not have any weapons on him when he stumbled on the floor.
Appellant's explanation for carrying the pistol was that he was a gambling man and that he carried plenty of money for gambling; that he went to Louisiana and Arkansas alone and carried his gun when he was going to be out at night. On cross-examination he stated that he did not know how to gamble.
Appellant moved for a directed verdict and urges that the Weathersby Rule should apply in this case.
In the case of Gordon v. State, 258 So.2d 752, 753 (Miss.1972), we reviewed many of the cases dealing with the Weathersby Rule and stated:
The appellant's motion for a directed verdict was based upon the so-called Weathersby Rule. The rule expressed by this Court in Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933) is in the following language:
165 Miss. at 209, 147 So. at 482.
The Weathersby Rule has been accepted by this Court in many cases since it was announced. Some of the late cases on this rule are Wilson v. State, 199 So.2d 445 (Miss.1967); Kinkead v. State, 190...
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McWilliams v. State, 49339
...rule has been quoted and relied upon often, but seldom sustained as being applicable to the facts of particular cases. In Carson v. State, 261 So.2d 462 (Miss.1972) and Gordon v. State, 258 So.2d 752 (Miss.1972), the Court restated the 'The Weathersby Rule has been accepted by this Court in......
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Pace v. State, 47506
...Pace's version of the homicide was materially contradicted by the physical facts as well as testimony of other witnesses. Carson v. State, 261 So.2d 462 (Miss.1972), and the authorities therein We have considered the record, the authorities cited by the appellant and others, by our research......
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Sartain v. State, 48433
...in a particular case is a question to be determined by the court and is not a proper subject of an instruction to the jury. Carson v. State, 261 So.2d 462 (Miss.1972); Gordon v. State, 258 So.2d 752 (Miss.1972). Of course, such action is always subject to review by this We have thoroughly e......