Dooley v. State
| Citation | 86 A.L.R.2d 718,238 Miss. 16,116 So.2d 820 |
| Decision Date | 11 January 1960 |
| Docket Number | No. 41447,41447 |
| Parties | , 86 A.L.R.2d 718 J. E. DOOLEY v. STATE. |
| Court | United States State Supreme Court of Mississippi |
J. W. Kellum, Sumner, for appellant.
Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., for appellee.
J. E. Dooley was indicted for the murder of Billy Joe Barnhart. The jury found him guilty of manslaughter; and from a judgment and sentence of seven years in the state penitentiary, he appealed.
The killing occurred about 2:00 A.M. on Sunday, June 29, 1958, at the Dairy Barn, a night spot in Leflore County. According to the evidence of J. H. Whatley, the deceased bought a 40 or 45 cent can of beer from Dooley, 69 years of age, the operator of the place, and gave a dollar in payment. Dooley said that he had no change, to which the deceased replied that it was all right and he would get the change later. About 30 or 40 minutes thereafter, the deceased asked for another can of beer, but Dooley told him he had sold out. The witness heard the deceased ask for his change. The next thing that the witness knew was the firing of a shot. He did not see Dooley pick up the shotgun, but when the shot fired, he turned and indicated the position in which he saw Dooley holding it. The witness testified that the deceased did not advance toward Dooley or do anything to him.
Lee Phillips testified that he saw the deceased about five seconds before he was shot; that the man was standing between the cigarette machine and the end of the counter, with his arm leaning on the counter; that he was flipping a 50 cent piece; that Dooley was standing behind the counter; and that the deceased did nothing to Dooley, and did not start around the counter, and he did not see deceased put his hand in his pocket.
Dooley testified that the deceased wanted beer; that he told him that he had sold out, but that the deceased replied 'You have it and I am going to get it'; that the deceased was 'pretty tight' and had his right hand in his front pocket though he did not see anything in his hand; but that he shot because he was scared and did not want the man to come behind the counter toward him.
The parties were about 8 or 10 feet apart when the shot was fired. Death resulted from the discharge of the shotgun which left a two-inch hole on the right side of the neck in the jugular vein above the collarbone, and which came out through the chin.
The appellant's sole assignment is that the identity of the deceased was not established, and that the trial court erred in overruling his motion for a directed verdict because of insufficient proof as to the corpus delicti.
The record discloses that Sheriff Charles W. Lee, who made an investigation following the killing, did not know the dead man, but that he conferred with the office manager of the Houston Construction Company, presumably the employer of the deceased, who identified the man. It also appears that V. R. Deal, an embalmer, who picked up the body, checked and double checked with fellow employees and relatives of the deceased, who also established the identity of the dead man. In each instance, this information was hearsay, and was obtained from others after the death.
Just why the State failed and neglected to put on the stand, as a witness, the employer or a fellow employee or a relative of the deceased, for the rudimentary proof that his name was Billy Joe Barnhart, is not shown, and is truly inexplicable.
It is true, beyond question, that the proof must show that the person killed is the same person as the one charged in the indictment to have been killed. McDaniels v. State, 203 Miss. 239, 33 So.2d 785, and the cases there cited. See also 41 C.J.S. Homicide Sec. 313, pages 23-24. This important point cannot be left to conjecture or speculation--it must be proved beyond reasonable doubt. Harris v. State, 155 Miss. 398, 124 So. 493; Pitts v. State, 43 Miss. 472.
But, circumstantial evidence is sufficient for this purpose, if it is clear and cogent and leaves no room for reasonable doubt. Articles found in connection with the remains may be sufficient. 41 C.J.S. Homicide Sec. 313, pages 23-24; 26 Am.Jur., Homicide, Section 327, page 377. See also State v. Barnes, 47 Or. 592, 85 P. 998, 7 L.R.A.,N.S., 181, where identification of the deceased was effected by a consideration of personal property in and about the scene of the killing, and which cites cases where certain articles of the deceased were held to be sufficient evidence of identity. In McCue v. State, 75 Tex.Cr.R. 137, 170 S.W. 280, a Texas case, where the body was not clearly identified by any witness, certain letters and a time book...
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