Durr v. State

• Decision Date: 11 May 1936
• Docket Number: 32060
• Citation: 175 Miss. 797,168 So. 65
• Court: Mississippi Supreme Court
• Parties: DURR v. STATE

168 So. 65

175 Miss. 797

DURR v. STATE

No. 32060

Supreme Court of Mississippi

May 11, 1936

Division A

APPEAL from circuit court of Covington county HON. EDGAR M. LANE Judge.

Guysell Purr was convicted of murder, and he appeals. Affirmed.

Affirmed.

E. L. Dent, of Collins, and Livingston & Milloy of Prentiss, for appellant.

The two motions made by defendant are that the state wholly failed to make out a case of murder against the defendant. The uncontradicted proof up to this time shows that the deceased was following the appellant, trying to take his child, which was an unlawful act, and appellant's rights were protected by Section 995, Mississippi Code of 1930, in so far as a conviction of murder was concerned.

Ayers v. State, 60 Miss. 709; Cryer v. State, 71 Miss. 467, 14 So. 261; Williams v. State, 126 Miss. 151, 84 So. 8; Williams v. State, 127 Miss. 851, 90 So. 705; Maury v. State, 68 Miss. 605, 9 So. 445; Wilkinson v. State, 143 Miss. 324, 108 So. 711; Jones v. State, 155 So. 430.

After the state had rested and after the court had overruled the two motions, if we are mistaken in our contention that the court should have sustained our motion as to murder, we respectfully submit that the testimony of appellant clearly makes out a case of justifiable homicide, or appellant is protected by Section 995, Mississippi Code of 1930, under the doctrine as applied in the foregoing cases, and could not have been lawfully convicted of murder, and at most, the law would sanction only a conviction of manslaughter.

We respectfully submit that the appellant's explanation of the homicide, not contradicted directly or by fair inference, must be accepted as true.

Bowen v. State, 144 So. 230; Patty v. State, 126 Miss. 94, 88 So. 498; Houston v. State, 117 Miss. 311, 78 So. 182; Weathersby v. State, 147 So. 481; Wesley v. State, 153 Miss. 357, 120 So. 918; Walters v. State, 153 Miss. 709, 122 So. 189; Gray v. State, 158 Miss. 266, 130 So. 150.

The request for a peremptory instruction should have been given.

The state's instruction entirely ignores the right of the defendant to act under reasonable apprehension of danger, viewed from his standpoint alone at the time. From the state's instructions, it made no difference whether appellant had good reason to believe and did believe, his life was in real or apparent danger when he struck the blows, it was the sworn duty of the jury to find appellant guilty as charged, regardless of whether or not appellant believed at the time he was in real or apparent danger of losing his life or being done some great bodily harm.

The instruction does not limit the jury to the proven circumstances, or to the circumstances in evidence, but it is so sweeping and broad that it gives the jury the right to consider any circumstances which may have occurred during the trial, or prior to the trial.

In the case of Simmons v. State, 61 So. 826, 105 Miss. 48, an instruction similar to the one here, was held to be prejudicial and not cured by other instructions.

Warren v. State, 146 So. 449.

There is no proof that appellant whipped his wife, and even though the court permitted several such questions to be asked, indicating as a matter of fact he had whipped his wife, the statement of the court did not relieve the prejudice that had already formed in the jurors' minds that possibly he had whipped his wife, although there was no proof to that effect. Several splendid, white citizens of the community where the homicide occurred testified that appellant was a man of good reputation for peace and quietude in the community where he lived, and for the state's attorney to assume, without proof, that he had whipped his wife would be prejudicial to any man on trial charged with crime.

Herring v. State, 122 Miss. 647, 84 So. 699.

At the time the court was held, the caption recites "on the first Monday in October A. D., 1935, being the 7th day of said month, theft me fixed by law for holding said court." Section 473, Mississippi Code of 1930,--Thirteenth District--the terms of Circuit Court shall be held in Covington County as follows: On the first Monday of January and first Monday of July, twelve days each.

While the order designates the term as a "special term," the law does not fix a special term, and it is nowhere in this record to show that a special term was called.

We do not contend that the court was not properly organized, our contention being that the minutes show that it was held at a time not authorized by law to be held as, the caption recites, and that this error is jurisdictional in character and need not have been made ground of special exceptions of the court below as required by Section 3403, Mississippi Code of 1930. Even if, the judge had called a special term, it was not the time fixed by law for holding the court as the minutes recite.

We respectfully call the court's attention to Section 1186, Mississippi Code of 1930, where an offense, partly committed in one county and partly in another, the jurisdiction shall be in the county where the prosecution first began.

Coleman v. State, 83 Miss. 290, 35 So. 937.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

Rule 2 of the Rules of this court (161 Miss. 903) provides, among other things: "A transcript shall not contain any part of the case except the pleadings, evidence, instructions, bills of exceptions and the order, judgment or decree appealed from, unless the appellant shall, by writing, request other matters specified to be embraced in the transcript, a copy of which shall be annexed to the transcript," etc.

Thus, in the absence of the request provided for, it appears that in a criminal case, the only contents of a record would be the indictment, pleadings subsequent thereto with orders of court with respect thereto, the stenographer's notes, instructions, bills of exceptions, if any, and the judgment appealed from. What is shown at page one of the record is, consequently, a gratuity on the part of the clerk who made up this record. There is no order shown which called a special term and it is properly not a part of this record under Rule 2, referred to above. In the absence of the request therein provided for, it seems that the question presented here should be foreclosed.

On the other hand, the "minutes" show clearly that this was a "special term" of court and the phrase "the time fixed by law for holding said court" was a lapsus calami, or purely a clerical mistake that should pass unnoticed by the court.

Section 3403, Code of 1930.

In the case at bar, the mortal blow was struck, according to the evidence, in Jefferson Davis county and death occurred in Covington County. Under Section 1187, the person responsible for death could be indicted in either county. This trial was on indictment returned by a Covington Country grand jury.

If prosecution has, in fact, been started in another county, it is an objection to the indictment dehors the face thereof and must be taken by motion to quash.

Section 1207, Code of 1930.

It was not proper to go into the matter at the time it was attempted and certainly the trial court committed no error in sustaining the objections of the state.

The killing with a deadly weapon is assumed to be malicious, and therefore murder, and before the presumption disappears the facts of the killing must appear in the evidence and must change the character of the killing, either showing justification or necessity, before it is reduced from murder. If the facts relied upon to change such presumption are unreasonable and improbable, or if they are contradicted by physical facts and circumstances in evidence, then the jury may find a verdict either of murder or manslaughter, according to the circumstances and facts in evidence.

Bennett v. State, 152 Miss. 728, 120 So. 837; Stubblefield v. State, 142 Miss. 787, 107 So. 663; McFatter v. State, 147 Miss. 133, 113 So. 187; McGehee v. State, 138 Miss. 822, 104 So. 150; Grady v. State, 144 Miss. 778, 110 So. 225; Sullivan v. State, 149 Miss. 412, 115 So. 552; Ivy v. State, 119 So. 507.

Outside of the self-serving declarations (which were inadmissible, yet admitted without objection on t h e par t of anyone) this case is precisely the case of Jackson v. State, 163 Miss. 235, 140 So. 683, at the time the state rested its case

If the facts relied upon to change such presumption are unreasonable or improbable, or if they are contradicted by the physical facts and circumstances in evidence, then the jury may find a verdict either of murder or manslaughter, according to the circumstances and facts in evidence.

Bennett v. State, 152 Miss. 728, 120 So. 837; Weathersby v. State, 165 Miss. 207, 147 So. 481.

Argued orally by G. Milloy for appellant and by W. D. Conn, Jr., for the State.

OPINION

Cook, J.

In the circuit court of Covington county, appellant, Guysell Durr, was convicted of the murder of Handy Norwood, and was sentenced to the state penitentiary for life, and from this conviction and sentence he prosecuted this appeal.

The deceased, Handy Norwood, was the grandfather of appellant's wife and was over seventy years of age The appellant and the deceased lived about half a mile apart, and on the day of the killing, the said Norwood was found lying on the side of a road or path about a quarter of a mile from appellant's home. His head and face were badly cut and bruised, and his skull crushed, and he died a short time later without regaining consciousness. To establish the charge of murder against the appellant, the state offered evidence of the finding of the body and the location thereof and the physical facts surrounding it, including the fact that no weapon was found on or near the deceased's body. There...