Collins v. State

• Decision Date: 25 September 1967
• Docket Number: No. 44421,44421
• Citation: 202 So.2d 644
• Parties: Walter COLLINS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 644

202 So.2d 644

Walter COLLINS v. STATE of Mississippi.

No. 44421.

Supreme Court of Mississippi.

Sept. 25, 1967.

Suggestion of Error Overruled Oct. 16, 1967.

Dyer & Dyer, on appeal only, Greenville, Townsend, Welch & Terney, Drew, for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.

INZER, Justice.

Appellant, Walter Collins, was indicted, tried and convicted of the crime of murder in the Circuit Court of Sunflower County. The jury fixed his punishment at life in the state penitentiary. A judgment was entered in accordance with the verdict, from which he appealed.

On Sunday, August 22, 1966, appellant, Willie Young, Willie's brother Dan, and others were at the home of Deretha Davenport in Sunflower County. Appellant and Dan engaged in an argument. They were 'throwing signs.' The meaning of the term 'throwing signs' is not clear in the record, but in any event, the argument did not result in any physical violence or threat. Appellant left, and told Dan that he would be back. He then drove his car down the road a short distance, turned around and returned. He stopped his car on the county road in front of the house. He got out of the car with a rifle which he proceeded to load. Willie Young started out to the road with the stated intention of telling appellant not to come up there shooting at his brother Dan. Young had in his hand a package of cigarettes and some matches, and as he approached appellant, he asked him if he wanted a cigarette. Appellant told Young to stop. When Young did not stop, appellant fired one shot over his head. Young still did not stop, and appellant fired another shot which struck Young in the center of the chest. Young fell, and died shortly thereafter. Appellant left the scene, and later that afternoon was arrested at his home by the sheriff of Sunflower County.

Appellant's assignment of errors is as follows:

(1) The lower Court erred in granting the State's instruction number 1 which attempted to define what is reasonable doubt.

(2) The lower Court erred in allowing the State to introduce into evidence over the objection of the defendant the .22 rifle which was said to have caused the death of the decedent.

(3) The lower Court erred in overruling Appellant's motion for a new trial.

There is no merit in the assignment of error relative to instruction number 1 granted the State. This instruction is similar to others that have been specifically approved many times by this Court, and is to the effect that the jury does not have to actually know that the defendant is guilty in order to convict, but may convict if the jury believes him guilty from all the evidence in the case beyond a reasonable doubt. Walton v. State, 212 Miss. 270, 54 So.2d 391 (1951); Bolin v. State, 209 Miss. 866, 48 So.2d 581 (1950); Allgood v. State, 173 Miss. 27, 161 So. 756 (1935); Sauer v. State,166 Miss. 507, 144 So. 225 (1932).

We have carefully considered the assignment of error relative to the introduction of the rifle into evidence over the objection of the appellant, and find no reversible error in this regard. The record reflects that W. I. Hollowell, Sheriff of Sunflower County, investigated the shooting. When he arrived, he found the body of Young lying in the road. He saw that Young had been shot in the center of the chest, and the size of the would indicated that it had been inflicted by a .22 caliber bullet. About an hour later he arrested the appellant at his home. In the course of his investigation he found a .22 caliber rifle in the back seat of appellant's car. He was unable to say whether the rifle had been recently fired, and made no effort to establish that this was the gun that fired the fatal shot. When the State offered the rifle in evidence, appellant objected. It was maked for identification, and later, when the state again offered it in evidence, appellant made the following objection: 'The defendant again objects on the ground that it has not been sufficiently connected up as being the weapon involved in this case, if any.'

The trial court overruled the objection and allowed the rifle to be introduced in evidence. No objection was made relative to the legality of the search at that time. Neither was it raised in appellant's motion for a new trial. Upon appeal it is argued for the first time that the search was illegal, inasmuch as the state offered no proof of the sheriff's authority for the search and seizure of the gun.

The conviction did not rest upon the question of whether the shooting was done with this particular rifle. Indeed, the evidence on behalf of the State was ample to support the conviction without the introduction of any weapon. Two eyewitnesses testified that they saw appellant shoot the deceased with a rifle and that he fell as a result of the shot. Appellant's defense was that of self-defense, so there was no issue relative to who shot and killed the deceased....