Cowart v. State, 46873
| Decision Date | 04 December 1972 |
| Docket Number | No. 46873,46873 |
| Citation | 270 So.2d 350 |
| Parties | Llewyn J. 'Ben' COWART v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Hall, Abram, Tucker & Johnson, Jackson, for appellant.
A. F. Summer, Atty. Gen., by Timmie Hancock, Sp. Asst. Atty. Gen., Jackson, for appellee.
Llewyn J. 'Ben' Cowart was convicted of murder in the Circuit Court of Marion County. The jury fixed his punishment at death and, accordingly, he was so sentenced. From that conviction and sentence he has appealed here.
A great deal of appellant's brief is devoted to an attack upon the death penalty as falling within that category of cruel and unusual punishments prohibited by the United States and Mississippi Constitutions. This Court has rejected that contention in Peterson v. State of Mississippi, 268 So.2d 335 (decision rendered June 19, 1972). However, the decision of the United States Supreme Court, in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), prevents imposition of the death penalty upon one convicted of murder under the Mississippi statute as now written.
Almost the entire remaining portion of Cowart's brief is to the effect that, it is argued, since Cowart was the only eyewitness and his version of the homicide is reasonable, not contradicted by any other testimony or by physical facts, and is not inconsistent with facts of common knowledge, he was entitled to be discharged under the principle announced in Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933).
To understand the point raised a brief statement of the essential circumstances in evidence must be given.
Admittedly, the victim of the homicide was a bootlegger, keeping for sale and selling intoxicating liquor in a dry county. His place of business was his home. There is no indication of any previous difficulty or animosity or even of an association or connection of any kind between Cowart and the deceased prior to the day of homicide.
On that day, Cowart had twice previously gone to the deceased's home to buy beer. The first time deceased was not there. The second time, he obtained two cans from persons who had already bought. On Cowart's third visit the homicide occurred. There is some indication that on this latter occasion Cowart was under the influence of intoxicants. In any event, he was armed with a loaded pistol. According to Cowart's testimony, and his was the only testimony available on the point, there was a sudden flare-up of temper on the part of the bootlegger over a trivial disagreement as to who would get the beer from the refrigerator. Again, according to Cowart, when he, Cowart, returned a facetious answer, the bootlegger took up his pistol and tried to shoot Cowart, but Cowart was able to strike up his arm as he fired and the bullet buried itself in the wall. As this was happening, Cowart drew his own weapon and shot the victim twice, killing him.
There is some evidence which tended to show flight or rather a hiding out on the part of Cowart following the homicide. This is explained by Cowart as...
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Foster v. State
...scheme was substantially similar to the one in Georgia. Peterson v. State, 268 So.2d 335, 338 (Miss.1972); see also Cowart v. State, 270 So.2d 350 (Miss.1972) (holding that because the death penalty was unconstitutional under Furman, the defendant must be sentenced to ¶ 14. Both legislative......
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Clingon v. State
...the Weathersby rule is not available to the defendant in this case and that the question of his guilt was for the jury. Cowart v. State, 270 So.2d 350 (Miss.1972). Defendant assigns as error the giving on behalf of the state of instruction No. 6, which is similar to the one given in Patters......