Erving v. State, No. 54061

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: BOWLING; PATTERSON; DAN M. LEE
• Citation: 427 So.2d 701
• Parties: Arthur Lee ERVING v. STATE of Mississippi.
• Decision Date: 02 March 1983
• Docket Number: No. 54061

Page 701

427 So.2d 701 Arthur Lee ERVING
v.
STATE of Mississippi. No. 54061. Supreme Court of Mississippi. March 2, 1983.

Colom, Mitchell & Colom, Wilbur O. Colom, Dorothy Winston Colom, Columbus, for appellant.

Page 702

Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before BROOM, BOWLING and HAWKINS, JJ.

BOWLING, Justice, for the Court:

Appellant Arthur Lee Erving was indicted, tried and convicted for the crime of murder in the Circuit Court of Attala County. He was sentenced to serve a term of life in the custody of the Mississippi Department of Corrections. On appeal he assigns the following as errors:

I. WHEN THE EVIDENCE PRESENTED IN A MURDER PROSECUTION IS CIRCUMSTANTIAL AND INSUFFICIENT TO SUSTAIN A CONVICTION, WAS IT ERROR FOR THE TRIAL COURT TO OVERRULE A MOTION FOR DIRECTED VERDICT AND REFUSE A PEREMPTORY INSTRUCTION?

II. WHEN THE PROSECUTION PRESENTS NO DIRECT PROOF, IS A REFUSAL BY THE TRIAL JUDGE TO GIVE DEFENDANT'S CIRCUMSTANTIAL EVIDENCE INSTRUCTION CONTAINING THE PHRASE "TO A MORAL CERTAINTY" REVERSIBLE ERROR?

In discussing the first alleged error regarding the sufficiency of the evidence, it is necessary to discuss parts of the evidence.

We first call attention to the fact that in discussing this alleged error, we are required to consider the evidence in the light most favorable to the state and accept as true the evidence supporting, or tending to support, the verdict, with all inferences supportive of the verdict that reasonably may be drawn therefrom. Robinson v. State, 418 So.2d 794 (Miss.1982); Sadler v. State, 407 So.2d 95 (Miss.1981); Spikes v. State, 302 So.2d 250 (Miss.1974); Glass v. State, 278 So.2d 384 (Miss.1973); and Murphree v. State, 228 So.2d 599 (Miss.1969).

At the time of the incidents related in the record, appellant and the deceased were living in the same apartment complex known as Glendale Apartments. Deceased Isaiah Hall, Jr. was shot and killed early in the morning of September 20, 1980. The incident started late that night and continued until after midnight. According to witnesses, on the previous night the appellant had engaged in an argument with the wife of the deceased regarding the behavior of their children. At around midnight, the night in question, Erving drove to the front of the apartment where he was confronted by Hall regarding the incident with Hall's wife and children. According to witnesses, Erving produced a knife and immediately thereafter Hall went to his pickup truck and secured a sledge hammer. Appellant then ran toward the apartment and through the breeze-way thereof. A witness in the apartment complex heard someone running down a path that led across the back of the apartment complex and to an area known as Craig Hill. The proof showed there was a distance of 3,881 feet between Glendale Apartments and Craig Hill.

Not long after midnight Hall was sitting on the hood of his pickup truck with others, when a shot was fired from the direction of the apartments. Hall caught his left shoulder, fell to the ground, and died a short time thereafter. Appellant's second cousin, who lived at Craig Hill, testified that at approximately 1 o'clock a.m., appellant came to his house and asked to use the telephone. Another witness who lived in the Glendale Apartments testified that at approximately the same time, her telephone rang and the appellant requested that she get appellant's wife to the telephone, as appellant did not have one in his apartment.

The cousin was asked by appellant to take him to the home of Ellis Erving, appellant's father, who lived about ten miles away in the community known as Possum Neck. The cousin drove appellant there and on the way he heard appellant state: "Well, I took and took and took and I just couldn't take no more." Before daylight appellant's father Ellis Erving, two of appellant's brothers and a brother-in-law came to the cousin's house at Craig Hill and

Page 703

asked assistance in trying to find a gun. This was confirmed by another relative who lived nearby. They all looked for the gun around a junk yard between Glendale Apartments and Craig Hill, but could not find one. Appellant returned to the home of his father. Shortly after midnight a police officer found a 30.06 rifle under an old abandoned couch about ten feet from the path leading from the Glendale Apartments to Craig Hill. The rifle was 1,783 feet from the apartments.

The police officers found an empty rifle shell near the back corner of the apartments. An expert testified that this cartridge was tested in regard to the rifle found under the couch, and the cartridge was actually...