Carter v. State

• Decision Date: 08 October 1928
• Docket Number: 27270
• Citation: Carter v. State, 118 So. 369, 152 Miss. 43 (Miss. 1928)
• Court: Mississippi Supreme Court
• Parties: CARTER v. STATE. [*]

118 So. 369

152 Miss. 43

CARTER v. STATE. ^[*]

No. 27270

Supreme Court of Mississippi

October 8, 1928

Division B

1.CRIMINAL LAW.Ruling on motion for change of venue will not be disturbed, where record does not contain testimony taken thereon.

A ruling of the trial court upon a motion for change of venue will not be disturbed, where the judgment of the court in passing on such motion recites that the court heard testimony on the motion, and where the record does not contain such testimony taken thereon.

2 HOMICIDE.Evidence that person seriously wounded by defendant died subsequent thereto held sufficient to show corpus delicti in homicide prosecution.

Where the evidence shows that the defendant cut and seriously wounded the person he is charged with killing, and the evidence of the state's witness showed that such person died the Tuesday following the cutting, and there is nothing in the evidence to show that such person was alive after such date on which it is said he died, and the witness was not examined as to his means of knowledge of such death, such evidence is sufficient to show the corpus delicti.

3 HOMICIDE.Evidence held to sustain conviction for manslaughter.

The evidence in this examined, and held to be sufficient to sustain a conviction of manslaughter.

HON. W H. POTTE, Judge.

APPEAL from circuit court of Hinds county, Second district, HON. W. H. POTTER, Judge.

Wilmon Carter was convicted of manslaughter, and he appeals.Affirmed.

Judgment affirmed.

Geo. L. Teat and M. Ney Williams, for appellant.

The only evidence offered by the state as to the death of Graves Woodruff, was that given by his brother, Percy Woodruff.This man testified as to the nature of the wounds, but knew nothing of the facts of the difficulty, as he did not reach his brother until some time after the cutting.

This is all the evidence offered by the state as to the death of Graves Woodruff.The witness Percy Woodruff, never stated that he saw his brother, Graves Woodruff die, or saw his body after death, or that he even attended his brother's funeral.It seems that the district attorney "took it for granted" that the negro was dead, and so questioned the witness, and made his only proof of death in this case.

Proof of the death of the man cut is just as essential as proof of the fact that Carter cut him.Every material fact must be proved beyond every reasonable doubt in any criminal case before the jury can convict the defendant.Haynes v. State,27 So. 601.

The court erred in overruling the motion of appellant for a change of venue.Anderson v. State,92 Miss. 656, 46 So. 65.

J. A. Lauderdale, Assistant Attorney-General, for the state.

A motion for a change of venue is largely within the discretion of the trial court and where same is overruled on conflicting testimony this court will not interfere unless it is clearly shown that the trial court abused the discretion.Cummins v. State,144 Miss. 634;Wallace v. State, 143 Miss. 439.

I admit, of course, that it is necessary to prove that Graves Woodruff was dead.However, the testimony proves that fact conclusively.There is no contradictory testimony on that point.

OPINION

ETHRIDGE, P.J.

J.The appellant was indicted for murder, and convicted of manslaughter, in the circuit court of the Second district of Hinds county, for the killing of Graves Woodruff, and sentenced to a term of eight years in the state penitentiary.The killing occurred in the town of Edwards in December, 1925.The circumstances of the killing, as shown by witnesses, are as follows:

The appellant, accompanied by a woman, was in the town of Edwards on the day the killing occurred.Appellant introduced the woman to one Frank Smith as his first wife, and, upon Smith's starting to shake hands with the woman, the appellant said, "No hand shaking here," and Smith backed away.The deceased, standing back of Smith, then stepped up where the woman was, and said, "I shakes all women's hands," and took her by the hands, and, according to the testimony of one of the witnesses, took hold of her in an improper way.The appellant remonstrated with the deceased, and some words passed between them, after which they separated.Shortly afterwards, in front of a store in the town, the appellant came up where the deceased and others were standing, and, according to the state's witnesses, without saying anything to the deceased, cut him on the neck.A struggle between them followed, and the witness Smith seized the appellant, holding his hand in which he held the knife.According to the state's evidence, the deceased "hollered" to some one to hold the appellant.During the struggle between the appellant and the deceased, the appellant cut and stabbed the deceased in the stomach and intestines.Graves, the deceased, died a few days thereafter.

The evidence in behalf of the appellant tended to show misconduct on the part of the deceased, and a threat of using a weapon, at the scene of the first difficulty.

The appellant argues three grounds for the reversal of the case: First, that the court erred in refusing the change of venue asked for by him; second, that the evidence is insufficient to show the corpus delicti; and, third, the evidence is insufficient to support the verdict of the jury convicting the appellant of manslaughter.

When the case was called for trial, the appellant filed a motion for change of venue, on the ground that he could not get a fair and impartial trial in the district in which the offense had been committed, because of the prejudgment of the case and the hostility of the public mind.The application for change of venue was accompanied by an affidavit made by two persons, averring the existence, in their belief, of such prejudgment and hostility as would prevent the...