Duke v. State, 42146

• Decision Date: 02 April 1962
• Docket Number: No. 42146,42146
• Citation: 139 So.2d 370,243 Miss. 602
• Parties: David Richard DUKE v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 370

139 So.2d 370

243 Miss. 602

David Richard DUKE v.STATE of Mississippi.

No. 42146.

Supreme Court of Mississippi.

April 2, 1962.

Howard A. McDonnell, Biloxi, for appellant.

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

GILLESPIE, Justice.

David Richard Duke, appellant, was jointly indicted with Ethel Alyne Tipton for the murder of John Loncharte.Ethel Alyne Tipton entered a plea of guilty and testified against appellant, who was convicted and sentenced to serve a life term in the penitentiary.

The evidence was sufficient to sustain the conviction.

The Channel Inn is located at the north end of the Gulfport Harbor, and Ethel Alyne Tipton was the bar maid.She slept in a room connected to the bar and for some time prior to January 31, 1958, the appellant, David Richard Duke, shared this room with Ethel Alyne Tipton.On or about January 31, 1958, the deceased, whose name was not known to any of the witnesses, went aboard a shrimp vessel and drank whiskey with two men on the vessel.They left the shrimp vessel and went to the Channel Inn where they drank beer.The deceased was last seen in the Channel Inn about dark on said date.About midnight, Ethel Alyne Tipton was in her room when appellant brought deceased to the room.Deceased went to sleep, or passed out from drinking.Appellant was also lying on the bed apparently asleep and Ethel Alyne Tipton was sleeping in a chair.Sometime before daylight, appellant awoke Ethel Alyne Tipton and told her he was going to have to '* * * get this man out because something was wrong with him.'Appellant and Ethel got the deceased up and carried him out of the Channel Inn, around the water front, to a barge tied up about 300 yards from the Channel Inn.Appellant then took wires and fastened a heavy bolt to the deceased, who was still alive, and pushed him overboard.

The next day appellant told Ethel Alyne Tipton that she was as deep in it as he was and not to call the police.Appellant told Ethel he had gotten some money from the deceased.

On February 2, 1958, the United States Immigration Authorities arrested appellant as an alien illegally in this country and deported him to Canada.

On February 17, 1958, a tug was moving a barge and the turbulence caused by the propellers revealed the body of deceased, and the police were called and the body taken from the water to the undertaker, where an autopsy was performed.The cause of death was drowning.

The only question justifying any discussion is whether the State established the identity of the deceased.

The indictment charged the defendants with the murder of John Loncharte.It was necessary for the State to prove that the person killed was the same person as the one charged in the indictment to have been killed.Dooley v. State, 238 Miss. 16, 116 So.2d 820.

The proof is clear that the person appellant killed by pushing his weighted body into the water was the same person whose body was...