Elliott v. State

• Decision Date: 14 March 1966
• Docket Number: No. 43801,43801
• Citation: 183 So.2d 805
• Parties: Scott ELLIOTT, alias Scotty Elliott v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 805

183 So.2d 805

Scott ELLIOTT, alias Scotty Elliott v. STATE of Mississippi.

No. 43801.

Supreme Court of Mississippi.

March 14, 1966.

G. H. McLean, Bell & McBee, Greenwood, for appellant.

Joe T. Patterson, Atty. Gen., by R. Hugo Newcomb, Sr., Asst. Atty. Gen., Jackson, for appellee.

INZER, Justice:

Appellant, Scott Elliott, Otis Nester and Philip Bennett were jointly indicted by the Grand Jury of Leflore County for the murder of Cecil Floyd, Jr. Appellant was granted a severance and was tried and convicted of manslaughter. He was sentenced to serve a term of fifteen years in the state penitentiary, and from this conviction he appeals to this Court.

Appellant assigns the following as errors on the part of the trial court:

The trial court erred in overruling the motion of appellant for a directed verdict because:

(a) The State of Mississippi wholly failed to prove the corpus delecti (sic) in this case.

(b) The State of Mississippi wholly failed to prove any charges against this defendant as set forth in the indictment.

The trial court erred in overruling the appellant's motion for a new trial because:

(a) The verdict of the jury is against the overwhelming weight of the evidence in this cause.

(b) The verdict of the jury is contrary to the evidence in this cause.

(c) The State wholly failed to prove the corpus delecti (sic).

(d) The court erred in excluding the introduction of certain documentary evidence consisting of the pleadings filed in the Chancery Court of Leflore County, Mississippi in Cause No. 13,546.

The evidence on behalf of the State shows that the body of Cecil Floyd, Jr. was found between the tracks of the main line of the Illinois Central Railroad at about 6:00 a. m. on the morning of October 1, 1961. The point where the body was found was about two miles south of the city limits of the City of Greenwood near the point where a spur track leads from the main line of the railroad to the factory of the Baldwin Piano Company. The railroad runs in a north-south direction, and Highway No. 49 runs parallel with the railroad about 200 yards east of the railroad. On the west side of the railroad right-of-way is a blacktop road that is used as a service road for the piano factory. A ditch separates this road from the railroad. About 200 yeards north of the point where the body was found is a crossing that leads from Highway No. 49 across the tracks to the service road and then to the airport.

Appellant, on and before October 1, 1961, was operating a place located on the west side of Highway No. 49, known as 'Scotty's place.' This place appears to have been a nightclub which served food, beer and had a place for dancing. It was located some 300 or 400 yards from the point where the body of Floyd was found. The train crew of a freight train traveling north saw the body on the tracks and stopped the train, but not before the engine and several cars had passed over the body. Another train had passed this point about 2:30 a. m. An inquest was held, and a long investigation resulted in the indictment of appellant and the other two men on a charge of murder.

Dr. Daniel Trigg, who was the pathologist for the Greenwood-Leflore Hospital, performed an autopsy on the body of Cecil Floyd, Jr. on October 2, 1961. He testified on behalf of the State that he found multiple fractures of the bones on the left side of the skull, a fracture of the collar bone and the left thigh bone, fractures of the bones in the forearm, the wrist and hand. There were cerebral lacerations on the inside of the brain covering, beneath the brain covering and within the brain itself. He also found multiple contusions and lacerations on various parts of the body. It was his opinion that the injuries to the head were sufficient to cause death and that these injuries were caused by a great mass of force which struck the head. He said this force could have been caused by one blow by a large mass or by repeated blows by a smaller mass. Dr. Trigg signed the death certificate after his examination and findings, and in this certificate he stated that his findings were indicative of deceased being struck by a passing train and that the death was accidental. Dr. Trigg could not swear, from his examination of the body and the history that was available to him at the time he signed the death certificate, that Floyd's death was not accidental.

The other evidence on behalf of the State shows that on the night before Floyd's body was found on the tracks that he was at Scotty's Place between 11:00 p. m. and midnight. He was described by the witnesses as being in a drunken condition. All the proof shows that an altercation took place in the club between Floyd and Philip Bennett. This came about by Floyd's attempting to go behind the counter to use the telephone and being prevented from doing so by Otis Nester. In some manner, Floyd either staggered or was pushed against Bennett who was sitting at the counter. Bennett either hit or slapped Floyd when this happened.

Marjorie Stevens, witness for the State, testified that she was at the counter eating a sandwich when Floyd came over and sat down beside her. A short time later he tried to use the telephone which was behind the counter, and appellant and Nester prevented him from doing so. She said that Floyd bumped into Bennett who was sitting at the counter, and Bennett cursed Floyd and hit him and knocked him into appellant and Nester. According to her testimony, appellant, Bennett and Nester then took Floyd outside the building. After she had finished her sandwich, she went outside the building on her way home. She heard some cursing and blows being struck, and saw Bennett, Nester and appellant in the shadows of the building with the fourth person on the ground, but she was unable to identify this person. She saw that appellant had a pistol in his hand at this time, but she did not see him hit anyone. She got into her car and went on home and did not know anything further about what happened that night. Her testimony was corroborated by the witness Willie Mae Lott, who was employed as a cook by appellant. However, this witness did not see anything that happened outside the building after Floyd was pushed out the door. She said she did hear some cursing and cars being cranked up and leaving.

Charles Wiggins testified on behalf of the State that he arrived at Scotty's Place about midnight on the night in question. He went inside the building and purchased a beer and returned to his car to leave. When he came out of the building, he saw Floyd leaning against the wall of the building. He said he spoke to Floyd, but Floyd did not answer. When he got into his car he found that someone had parked behind him, and he could not leave. While he was sitting in his car drinking his beer, he said that appellant and Bennett came out the door and grabbed Floyd and drug him around the side of the building. Wiggins turned on the lights of his car, and he saw appellant beating Floyd around the face and head with the butt end of a pistol. Bennett was sitting straddle of Floyd, holding him while the appellant hit him. He saw appellant strike Floyd many times, but he was unable to give the number of times. Appellant then took Floyd by his arms and Bennett by his legs and carried him and put him in a Buick car. As they passed the car in which Wiggins was sitting, appellant said to Wiggins that if he did not keep his mouth shut he would be next. Appellant and Bennett then started the car in which they had placed Floyd, and went north on Highway No. 49. Wiggins followed in his car with the lights off. When the Buick reached the intersection of Highway No. 49 and Highway No. 82, it turned left towards the air base. Wiggins did not follow any further and went on home. On cross-examination, he admitted that he had never told anyone about what he had seen and heard until about a month before this trial at the May 1965 Term of the court. It was his statement that his conscience got to bothering him, and he went to the father of Cecil Floyd, Jr. and told him what he had seen and heard on this occasion.

Appellant testified in his own behalf that he was fifty-four years of age at the time of the trial and that he was born and reared in Kentucky. In 1928 he was convicted of the crime of grand larceny in Nashaville, Tennessee, and that this was the only conviction on his record. He had been in Greenwood for about seven years prior to 1961. He had worked as a transport driver, and also in a machine shop and welding shop. In January 1961 he began operating the place known as Scotty's. He had known Cecil Floyd prior to the night of September 30, 1961, and he said that Floyd came into his place on three occasions on this night; the first time being about 8:00 p. m., and Floyd only stayed fifteen or twenty minutes with nothing unusual having happened. Floyd came back again about 10:00 p. m., and sat down at the counter beside a man named Billy Lusk. Shortly...