Edge v. State

• Decision Date: 18 February 1981
• Docket Number: No. 52318,52318
• Citation: 393 So.2d 1337
• Parties: Larry EDGE v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1337

393 So.2d 1337

Larry EDGE v. STATE of Mississippi.

No. 52318.

Supreme Court of Mississippi.

Feb. 18, 1981.

John B. Farese, Farese, Farese & Farese, Ashland, Joseph B. Garretty, Corinth, for appellant.

Bill Allain, Atty. Gen. by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, SUGG and WALKER, JJ.

WALKER, Justice, for the Court:

This is an appeal from the Circuit Court of Prentiss County, Mississippi, wherein the appellant, Larry Edge, was tried and convicted of the crime of murder and sentenced to life imprisonment. From that judgment and sentence, the appellant appeals. We reverse and render as to murder, but remand for a new trial on manslaughter.

This case involves the death of John Wayne Murphy at the hands of the appellant, Larry Edge. The persons involved in this unfortunate episode were the appellant, Larry Edge, his wife, Geneva Edge, John Wayne Murphy, the deceased, and his girlfriend, Eva Epperson. These four people were friends and an extramarital relationship developed between the deceased, John Wayne Murphy and the appellant's wife, Geneva Edge. At the time of the death of John Wayne Murphy, the four were at Elder's Lake, having gone there at the insistence of the deceased. Geneva Edge had earlier told Murphy, in the presence of Larry Edge and Eva Epperson, a witness for the state, that she wanted to break off their relationship and that it was final. While sitting around a fire, Murphy, who had been drinking heavily and taking codeine pills made the statement that if he could not have Geneva no one could. He sent Eva to look for wood to put on the fire. While Eva was gone, Murphy grabbed Geneva, wrestled her to the ground, and while holding her down said that he was going to have her and that if he could not have her that he would kill her and kill himself. The appellant, Larry Edge, attempted to pull Murphy off of Geneva but was cut on the hand with a knife by Murphy. Edge thereupon went to his car from which he took a shotgun, placed a shell in it, and went back and placed it close to Murphy's head and shot him. The entry wound made by the shotgun blast was located behind the decedent's left earlobe. The exit wound involved the entire jaw area of the right side of the face. Pellet wounds were found in the upper medial portion of decedent's right arm. Geneva testified that the deceased was so close to her that the shotgun blast caused blood to get on her coat.

The appellant argues that he was justified in shooting Murphy in defense of his wife whose life was being threatened. Mississippi Code Annotated section 97-3-15 (1972).

He also contends that at most he would only be guilty of manslaughter. Mississippi Code Annotated section 97-3-31 (1972) states:

Every person who shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any unlawful act, or after such attempt shall have failed, shall be guilty of manslaughter. (Emphasis added).

I.

The appellant first contends that "(He) was entitled to a directed verdict of acquittal at the close of all of the evidence in this case, there being no competent evidence to contradict appellant's version of the homicide which made out a clear case of justifiable homicide," claiming the benefit of the rule laid down in Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933).

The appellant argues that the action taken in defense of his wife clearly came within the statutory definition of justifiable homicide under section 97-3-15 which provides, in part, as follows:

... killing of a human being by the act ... of another shall be justifiable....

(f) When committed in the lawful defense of ... any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished.

He argues that since there is no material contradiction in the evidence presented by the eyewitnesses to the homicide and the state's witness, Eva Epperson, their version must be accepted as true, contending that it is reasonable and is not contradicted in material particulars by any other witness or by the physical facts or by the facts of common knowledge. Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933). In Weathersby, the Court stated:

(W)here the defendant or the defendant's witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge. (165 Miss. at 209, 147 So. 481).

We have meticulously considered this record and are of the opinion that the requirements of Weathersby are not met. Geneva Edge testified that she and the deceased were so close at the time of the shotgun blast that his blood got on the front of her coat. She also testified that she was wearing the same coat when she gave her statement to law enforcement officers later that night. However, the officers and others who saw Mrs. Edge that night testified that they saw no blood on her clothing. The coat was not introduced into evidence nor was its absence explained. The close proximity of Geneva to Murphy (he allegedly had her down on the ground) was a crucial element of appellant's defense of justifiable homicide.

Therefore, since the material evidence is in conflict, we are of the opinion that this is not a case for the application of the Weathersby rule. As we have stated before, it is a rare case that meets all the requirements of Weathersby. However, we are of the further opinion that the evidence does not rise to that high degree which would justify a jury in finding the defendant guilty of murder beyond a reasonable doubt and his motion for a directed verdict as to the charge of murder should have been sustained, leaving only the charge of manslaughter to be considered by the jury.

II.

The appellant assigns as error that "The trial court erred in allowing improper jury argument on the part of the state."

In his closing argument to the jury, the county attorney told the jurors: "The law doesn't require you to know that this man is guilty. All you have to do is believe it beyond a reasonable doubt."

Defense counsel objected to the prosecuting attorney's argument, but his objection was overruled.

In the case of Clemons v. State, 320 So.2d 368 (Miss.1975), this Court reaffirmed the principle that it is the trial court, and not the prosecutor, who advises the jury on the law. In Clemons, the district attorney told the jury in a possession of marijuana case that:

"The court does not tell you that you have to know the defendants are guilty, and you do not have to know they are guilty before you can find them guilty." (320 So.2d at 372).

In Clemons, the Court went on to rule as follows:

In the first place, it is the duty of the trial judge to instruct the jury and not the district attorney. Pearson v. State, 254 Miss. 275, 179 So.2d 792 (1965); Mississippi Code Annotated section 99-17-35 (1972).

In Ivey v. State, 206 Miss. 734, 40 So.2d 609 (1949), this Court pointed out that the trial court should have sustained an objection to a legal instruction verbally given by the district attorney to the jury. In that case, however, the verdict of the jury was affirmed. Nevertheless, the Court said: "In this state it is the province of the trial judge to announce the law to the jury." 206 Miss. at 755, 40 So.2d at 614. See also Harris v. State, 207 Miss. 241, 42 So.2d 183 (1949); 23A C.J.S. Criminal Law § 1110, at 217 (1961).

This instruction has been condemned by this Court so often that it seems unnecessary to continue to cite authority on this issue. See some of the cases listed in Kent v. State, 241 So.2d 657 (Miss.1970).

Now we find that although the trial judges have ceased to use this instruction, the district attorney in this case not only used the instruction verbally in his argument, he argued with the trial judge when the judge sustained an objection to the argument.

In the case of Pearson v. State, 254 Miss. 275, 179 So.2d 792 (1965), where the trial judge permitted the district attorney to give to the jury a verbal instruction, this Court said: "For the error, growing out of this incident in the closing argument, the cause must be and it is, reversed and remanded for a new trial. 254 Miss. at 293, 179 So.2d at 800. (320 So.2d at 372).

The remarks of the prosecuting attorney were error in Clemons causing reversal and is reversible error here requiring that the case be remanded to the circuit court for a trial on the charge of manslaughter.

III.

The appellant next assigns as error that the trial court erred in refusing to allow surrebuttal testimony by one Jackie Hamblin, who would have testified that Mrs. Edge's jacket did in fact have blood all over it as support of his contention that he shot Murphy in defense of his wife. The state put on several rebuttal witnesses. Sheriff Martin testified that he did not see any blood on Mrs. Edge's clothing. Joey Cobb testified that he did not see any blood on Mrs. Edge's clothing. William Shouse testified to the same effect.

The appellant argues that the state's rebuttal testimony tore the heart out of his defense of justifiable homicide. Mrs. Edge testified that she had blood all over her clothing as a result of the shooting. She said that Murphy was attacking her...