Cromeans v. State, 46785

• Decision Date: 17 April 1972
• Docket Number: No. 46785,46785
• Citation: 261 So.2d 453
• Parties: Eugene CROMEANS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 453

261 So.2d 453

Eugene CROMEANS v. STATE of Mississippi.

No. 46785.

Supreme Court of Mississippi.

April 17, 1972.

Rehearing Denied may 8, 1972.

Jimmy D. Shelton, Billy W. Shelton, Tupelo, for appellant.

A. F. Summer, Atty. Gen., by James W. Haddock, Sp. Asst. Atty. Gen., Jackson, for appellee.

BRADY, Justice:

This is an appeal from the Circuit Court of Lee County, Mississippi, wherein the appellant, Eugene Cromeans, was tried and found guilty of murder and was sentenced to life imprisonment in the state penitentiary. From that verdict and judgment, the appellant appeals.

There is great conflict in the testimony of witnesses in this case and the following is but a short statement of what occurred on the night of March 13, 1970. On that date, sometime between 10:00 and 10:30 p.m., the appellant drove his automobile into the driveway and near the house of the deceased, Elbert Franks. In the automobile with the appellant were a Mr. Clippard and Nelson Franks, one of Mr. Elbert Franks' sons. It is apparent from the record that all three men had been drinking, though to what extent is in conflict. It is admitted, however, that both wine and beer had been consumed by these individuals prior to their arrival at the home of the deceased.

Upon stopping in the driveway, the appellant got out of his automobile and immediately entered the home of Elbert Franks. There is conflict as to whether the appellant merely opened the door and entered the house or whether he kicked and hammered at the door demanding to be let in. Nelson Franks, who was in the automobile with the appellant, got out of that car and entered a parked automobile belonging to one Billy Wayne Lyles. In the automobile with Billy Wayne Lyles was a Miss Magdaline Smith; on the back seat at the time was another son of the deceased, Richard Franks. Richard Franks was approximately twenty-six years old and Nelson Franks was twenty. During the time they were in the Lyles automobile, they heard loud voices coming from within the house. In the house at that time were Mrs. Elbert Franks, wife of the deceased, Mr. Elbert Franks, the deceased, who was on the bed, and Tommy Cromeans, the son of the appellant, who was spending the night there and was in bed in a back room of the house.

The record reveals that a violent argument arose between the appellant and Mrs. Franks. The appellant was in the house a very short period of time when numerous witnesses saw him leave the house and reenter his car. There is testimony that the appellant dared Mrs. Franks to follow him. She followed him out of the house and she in turn was followed by Tommy Cromeans. Mrs. Franks carried a stick or a toy gun barrel or a vacuum cleaner hose in her hand. Appellant asserts that she struck his car with the object. There is testimony that the appellant told her not to hit his car. She struck his car, and Mrs. Franks' testimony is corroborated that he thereupon struck her, knocking her to the ground and kicking her. She testified that he then said: 'Die you bitch, die, bitch, like your husband is going to do.' Appellant contends that he never struck her, that he merely attempted to grab the object away from her. The record discloses that Nelson Franks ran to the house calling his father and telling him that the appellant had beaten his mother. Richard Franks tried to assist his mother in getting up off of the ground, and when doing so she cried out: 'Kill them, kill them, he hit me.'

After this violent confrontation between the appellant and Mrs. Franks, the appellant got in his car and backed it down to the blacktop road, some one hundred and twenty feet from the Franks' home. His son Tommy was already seated on the back seat of the automobile, and Mr. Clippard was seated on the front seat. The testimony is very contradictory as to exactly what was stated and what occurred at that time. It is the contention of the appellant that Mr. Elbert Franks called to him: 'Wait a minute' or 'Hold it.' On the other hand, witnesses for the state testified that the appellant stopped the car and yelled to Mr. Franks to get 'his little dried-up _ _ out there.' It is apparent from the record that Mr. Elbert Franks ran out of the house with a pocker in one hand, and that he picked up a stick of firewood in his other hand, and ran toward the appellant's car. Nelson Franks admits that he picked up a crowbar and went toward the appellant's car. The record reveals that Mr. Franks struck the appellant's automobile one or more times. The state's witnesses, Richard Franks, Mrs. Elbert Franks, Nelson Franks and Billy Wayne Lyles, testified that the appellant got out of his automobile and either took the stick of wood away from Mr. Franks and struck him with it or picked it up off the ground and struck Mr. Franks. In addition, he struck Mr. Franks numerous times with his fist and then kicked him when he lay on the ground. The appellant testified that he got out of the car only because he was afraid the windshield was going to be broken into his face, and that when he threw the car door open it hit Mr. Franks, knocking him to the blacktop toward the front of the car. He asserted that Mr. Franks dropped the poker at that time. However, his son Tommy, who was seated in the back seat, testified that his father got out of the car and took the poker away from Mr. Franks and threw it or laid it on the side of the road.

Mr. Jimmy Clippard, who was in the car, testified that he had been asleep and did not wake up until someone struck the car; that he got out and walked toward the front of the car where he tripped over Mr. Franks, who was lying on the blacktop. Nelson Franks, who arrived at the scene at approximately the same time his father did, testified that he struck with the crowbar someone whom he believed to be Mr. Clippard. The appellant testified that he assisted Nelson Franks in picking up Elbert Franks from the blacktop. Appellant testified that he offered to take Mr. Franks to a doctor. However, the testimony of some of the state's witnesses was that the appellant told them to get the 'S_ _-of-a b_ _' out of the way or he would run over him.

Mr. Franks was first carried into his house by his son Nelson with the assistance of Billy Wayne Lyles. Mr. Franks was then taken to the office of Dr. Thomas McDonald in Mantachie at about 10:30 p.m. Dr. McDonald testified that Mr. Franks was a small man, approximately five feet, six or seven inches, and weighed less than a hundred pounds. The doctor stated that Mr. Franks was not orientated and was unable to respond to questions. He testified, however, that he was moving all extremities, and the injuries were confined to the head. There were approximately five injuries: One about each ear, one over each eye and one in the area behind the right ear. The doctor's testimony was that the injury to the left ear was more severe than the one to the right ear and that the left ear was swollen and blue. It was the doctor's opinion that the most severe of all the injuries and the only one that was bleeding was the one in the area behind the right ear. This injury seemed to be more a hole in the head, and the doctor proceeded to explore with his finger to make sure that there was no depressed skull fracture. It was the opinion of the doctor that the other injuries were made by some blunt instrument but that the injury back of the right ear seemed to have been made by some sharp instrument. The doctor treated the different injuries and shaved the scalp in the area behind the right ear but did not do any sutural work. He merely placed a bandage over the injury. He...