Evans v. State

• Decision Date: 02 March 1931
• Docket Number: 29271
• Court: Mississippi Supreme Court
• Parties: EVANS v. STATE

132 So. 563

159 Miss. 561

EVANS v. STATE

No. 29271

Supreme Court of Mississippi

March 2, 1931

Division A

1. CRIMINAL LAW.

Reliability of testimony of state's witness alleged to be very drunk at time of homicide was question for jury.

2. CRIMINAL LAW. In prosecution for murder, verdict of guilty will not be disturbed on appeal from, conviction, where evidence was conflicting.

In criminal cases, conviction will not be reversed where straight issue of fact is involved, or facts are conflicting since, in such cases, question of guilt is exclusively within province of Jury, and Supreme Court will not invade province and prerogative of jury.

3. CRIMINAL LAW.

Defendant's requested instructions in prosecution for murder were properly refused, where subject-matter and principled of law therein announced were fully covered by instructions given.

HON. W A. WHITE, Judge.

APPEAL from circuit court of Stone county, HON. W A. WHITE, Judge.

Wirt Evans was convicted of murder, and he appeals. Affirmed.

Affirmed.

U. B. Parker, of Wiggins, for appellant.

This record discloses nowhere that the appellant was to blame, but that the deceased was the aggressor from beginning to end, and was the aggressor until the fatal shot was fired; and there is no testimony to the contrary, except that of a drunken witness who came there with the deceased to help him carry out his nefarious desire.

Under all the facts and circumstances the defendant was entitled to a peremptory instruction, and the court erred in refusing such.

The principals involved in this cause are such that we have not deemed it necessary to cite authority. We realize that the findings of a jury shall only be disturbed in a case where manifest error has been committed, but here is such a case.

W. A. Shipman, Assistant Attorney-General, for the state.

Where evidence is conflicting, the case is for the jury and its verdict will not be disturbed on appeal.

Brown v. State, 103 Miss. 639; Jackson v. State, 105 Miss. 782; Wells v. State, 112 Miss. 76; Spight v. State, 120 Miss. 752; Chandler v. State, 143 Miss. 312; Mathews v. State, 148 Miss. 696; Steward v. State, 154 Miss. 858.

An inspection of the record herein and a consideration of the testimony and all of the proceedings in the court below is convincing of the appellant's guilt as well as the fact that all of his legal rights were safeguarded in the proceedings and that no reversible error occurred in the trial.

OPINION

McGowen, J.

Wirt Evans was tried, convicted by the jury, and sentenced by the court to a life term in the state penitentiary on a charge of murder, in the killing of J. E. Harrison, from which judgment he appeals here.

The cause is presented in this court on the brief of appellant setting forth such facts as are most favorable to the appellant, with scant, if any, notice of the facts upon which the conviction rests.

Harrison was a married man, Evans was single. The events of this homicide clustered around the home of a widow who lived in the country, and who had many visitors on the night of the homicide. The accused and the deceased were both candidates for the smiles and society of a young damsel of the neighborhood. The accused met the young lady near Perkinston, and took her in his car to the home of the widow. While there the deceased drove up to the gate, called for the young lady to come out, and requested that she go with him in his car. This she declined to do, and returned to the room where the young man remained, and the deceased drove away, but subsequently returned to the gate, and there ensued some disturbance, during which Houston Evans, brother of appellant, exhibited a shotgun, which was later in the possession of the accused, and requested Harrison to leave, which he did. The accused announced that he would keep the young lady until one o'clock and thereafter the deceased could have her. Evans and the young lady then drove to a nearby town to secure drinks and sandwiches. The deceased made some visits to the same town, where he and his male companion purchased sandwiches, Coca-Cola, and antiseptic, and there is evidence in the record tending to show that the deceased was hilarious and drinking. The two cars, with their occupants, seem to have played a game of "hide and seek" in that part of the country, appearing from time to time at the home of Mrs. Robinson. Each made threats to kill the other, which threats seem to have been communicated to both parties during the night. The accused spoke of a funeral should Harrison continue to follow him. From the record it is difficult to say which of the parties pursued the other.

The tragedy must have occurred about midnight. Sumrall, the state's witness, testified that he was in company with Harrison. They had left Mrs. Robinson's, and had gone a short distance when they came upon the car driven by the accused, who was accompanied by his brother and the young lady. The car driven by the accused was so parked in the road as to block the passage, and deceased turned his car and drove the front wheels into the ditch with the bumper against the bank of the ditch. The accused then stepped from his car with a double-barreled shotgun in his hand, and, placing it within a short distance of the head of deceased, discharged it, the impact of the load being lodged against the upper front part of the head. At the time of the shooting the deceased had his hand on the steering wheel of the car, and had no weapon in his hand.

The deputy sheriff testified that, when he arrived on the scene a little later, he found the deceased upon the front seat of the car, with a gunshot in the head, the upper front thereof blown off, and the brain exposed--and the gun wadding was in the foot of the car. He found a pistol between the legs of the deceased, pointing outward, the handle to the rear--he being seated thereon. The front wheels of the car were in the ditch.

The accused was the only eyewitness in his behalf. The young lady and the brother were not introduced as witnesses by either side. The defendant testified that there was...