Dunbar v. State

• Decision Date: 09 March 1931
• Docket Number: 29111
• Court: Mississippi Supreme Court
• Parties: DUNBAR v. STATE

132 So. 748

159 Miss. 603

DUNBAR v. STATE

No. 29111

Supreme Court of Mississippi

March 9, 1931

Division B

1. CRIMINAL LAW. Defendant is entitled to instruction that jury cannot disbelieve him simply because he is defendant.

Where a defendant on trial for homicide testified in his own behalf he is entitled to have the jury instructed that the law of this state gives the defendant the right to testify in his own behalf, and the jury have no right to disbelieve him simply because he is the defendant, but his testimony is entitled to just as much faith and credit as under all the circumstances the jury think it ought to have, and his testimony is just as entitled to consideration as that of any other witness who testified in the case. To so instruct the jury is not to tell the jury how much consideration or what credence the evidence should have, but merely to Inform them that his testimony is to be considered and given such weight as the jury think it is entitled, on circumstances, to have.

2. CRIMINAL LAW. There being no eyewitnesses, defendant is entitled to instruction that Jury must resolve in defendant's favor reasonable doubt created by defendant's testimony.

Where there are no eyewitnesses to a homicide, except the defendant, and his testimony is contradicted by evidence that might cause the Jury to disregard it or discredit it, he is entitled to have the jury instructed that, if there be any fact or circumstance in the case susceptible to two interpretations, one favorable and the other unfavorable to the accused, and when the jury have considered such fact or circumstance with all other evidence, and there is a reasonable doubt to the correct interpretation, they must resolve such doubt in favor of the accused and place upon such fact or circumstances the interpretation favorable to the accused.

HON. B L. CORBAN, Judge.

APPEAL from circuit court of Franklin county, HON. R. L. CORBAN Judge.

Carson Dunbar was convicted of manslaughter, and he appeals. Reversed and remanded for new trial.

Reversed and remanded.

Torrey & Torrey, of Meadville, for appellant.

Defendant's evidence as to homicide witnessed by no other person would be controlling, in the absence of other facts and circumstances showing guilt, and there would be no question for the jury.

Grady v. State, 144 Miss. 778; Strahan v. State, 143 Miss. 519; McFatter v. State, 147 Miss. 133.

The court should have given the appellant an instruction as to his own competency as a witness in his own behalf. The defendant was entitled to an instruction that the jury could not disbelieve him simply because he was the defendant.

W. A. Shipman, Assistant Attorney-General, for the state.

There was a sharp conflict in the evidence and it was the duty of the court to submit the issue for resolution to the jury. The incongruity of the appellant's testimony is too apparent on its face to have carried any considerable weight with a jury.

The jury, it is presumed, was made up of men possessed of common sense and possessing capable reasoning powers. They were warranted in applying to the explanation of the appellant as to how the killing occurred the test of human experience and human observation, and, as thus tested, they found it wanting in consistency and in harmony with such experience and observation.

Strahan v. State, 143 Miss. 519; McFatter v. State, 147 Miss. 133; Wingo v. State, 91 Miss. 865.

Had the court given the instruction as to the defendant's competency, etc., as drawn it could have done no harm, and the same is true in regard to its refusal because the substance thereof is contained in other instructions set out in the record.

Jennings v. State, 118 Miss. 619.

Argued orally by J. H. Torrey, for appellant.

OPINION

Ethridge, P. J.

Carson Dunbar was indicted in the circuit court of Franklin county upon the charge of murder of one Mark Graves, a human being, and was convicted of manslaughter and sentenced to the penitentiary, from which conviction he appeals here.

It appears that the killing occurred at the home of the father-in-law of the deceased, Mark Graves, upon a certain afternoon. On the Sunday previous the deceased had accosted the appellant about the wife of the deceased, and had run him away from the house of another person. It also appeared that Graves and his wife had separated, and that she was at the home of her father at the time, or on the day, the killing occurred. The proof shows that near this house of Horace Jackson, the father-in-law of the deceased, a negro woman named Henrietta Johnson lived, and the appellant was at this home in conversation with a daughter of Henrietta when someone from the home of Horace Jackson, the father of the wife of the deceased, called the appellant to come over there, and he went over to that home and was in a room with a sister of the wife of the deceased, another man, and the deceased's wife when the deceased came into the house armed with a pistol in one hand, and, according to some of the evidence, with a stick in the other hand. He entered shortly after the appellant entered the house, and upon his entering all the persons except the appellant fled from the room. Within a very short period of time there shots were fired in the room, two of which took effect in the deceased and the third entered a door of the room in which some of the other witnesses had run, knocking a splinter from the door against one of the persons therein. They all thereupon jumped out of the window and ran. Shortly afterward the appellant came out of the house with two pistols and went to the house of Henrietta Johnson, and she asked him if he had killed Mark, meaning the deceased, and the appellant replied, "If I ain't...