Durr v. State, 38432

• Decision Date: 09 June 1952
• Docket Number: No. 38432,38432
• Citation: 59 So.2d 304,214 Miss. 658
• Parties: DURR v. STATE.
• Court: Mississippi Supreme Court

Page 304

59 So.2d 304

214 Miss. 658

DURR v. STATE.

No. 38432.

Supreme Court of Mississippi.

June 9, 1952.

D. A. McLeod, Mt. Olive, A. W. McRaney, Magee, for appellant.

J. P. Coleman, Atty. Gen., J. T. Patterson, Asst. Atty. Gen., for appellee.

McGEHEE, Chief Justice.

This appeal was taken by Jim Brent Durr from a conviction of murder and sentence of death. The appellant contends (1) that he should have been granted a new trial on the ground that the verdict of the jury is against the overwhelming weight of the evidence offered in the support of his plea of self defense; (2) that the trial court erred in refusing an instruction requested by the defendant that would have authorized the jury to find him guilty of no greater offense than the crime of manslaughter; and (3) that the trial court should have sustained the defendant's motion for a mistrial because of certain questions propounded to a witness for the State, but which were not answered upon objection thereto, in regard to why the officer who was killed had on that occasion armed himself and was accompanied by his brother to the home of Durr to arrest him on a charge of having resisted the officer on a previous visit to the home where he had gone on two consecutive days immediately prior to the homicide to execute a writ of replevin for a wagon. The officer had failed on each occasion to take possession of the wagon or obtain a bond therefor, and the questions objected to had intimated that the officer had armed himself and obtained someone to assist him in making the arrest because of the reputation of the defendant.

On Friday the 13th day of April, 1951, the appellant Jim Brent Durr shot and killed Bernice Herrington, a constable in Simpson County, who had two days prior thereto served a writ of replevin on him for the possession of a wagon. The officer had gone alone and unarmed to the home of Durr on each of the two days immediately prior to the killing, and for some reason had failed to either take possession of the wagon or obtain a bond from Durr for its forthcoming to abide the judgment of the court in the replevin suit. On his third visit to the home he was accompanied by his brother Eugene Herrington and carried in his shirt pocket a warrant for the arrest of Durr on a charge of having resisted the officer in the previous attempt to execute the writ of replevin.

The proof discloses that on his first visit to execute the writ of replevin the officer found Durr and his wife in possession of the wagon near the barn lot and loaded with fertilizer and plow tools which the wife was attempting to carry to the field; that Durr, who is alleged to have been recovering from the mumps, was walking along near the wagon when the officer approached them, and that thereupon the journey to the field was abandoned on account of rain, when Durr and the officer returned to his house and the wife of Durr returned to the barn with the wagon and then came on to the house; that the officer read the writ of replevin to Durr and delivered him a copy thereof; and that the officer remained on the porch for about 40 minutes until the rain was over and during which time, according to the testimony of Durr and his wife, there was no unpleasantness of any kind between them and the officer.

It is not clear from the record as to whether the officer's failure to take possession of the wagon on that day was due to the fact that he had not gone there prepared to carry it away, or whether Durr had declined to either give bond for the wagon or to surrender possession thereof. But it does appear that on the next morning the officer again arrived on the premises and went first to where the wife of Durr was at work in the field near the house, asked as to the whereabouts of Durr, was informed that he was sick and in the house and that the officer thereupon went to the house and saw Durr in the presence of his wife and informed him that Mr. Hemby, the plaintiff in the replevin suit, did not want the wagon but wanted his money, and that Durr then claimed that the $50 balance of the purchase price that he owed on the wagon was not due until the fall of 1951, whereas it appears from other proof in the case that the balance had been past due since the fall of 1950. It is shown that subsequent to the homicide which occurred on the following day, the wife of Durr stated to the officers that he was doing a lot of cursing in the house on the occasion of this second visit of the officer. At any rate, the officer left the Durr home again without having taken possession of the wagon or having received a bond for the same. Both Durr and his wife as witnesses at the trial denied that there was any unpleasantness between the parties during the second visit of the officer and denied that he had refused to surrender possession of the wagon or to make bond.

At any rate, the officer left the premises and on the next morning made a charge against Durr for having resisted the officer in his attempted execution of the process. And the proof discloses without dispute that the tongue of the wagon had been removed therefrom and placed in a room of the Durr home prior to the homicide, indicating his determined purpose not to permit the wagon to be carried away from his premises by the officer.

On the third day the officer returned to the Durr home accompanied by his brother, as aforesaid, and upon their arrival they...