Fairley v. State

• Citation: 163 Miss. 682,138 So. 330
• Decision Date: 07 December 1931
• Docket Number: 29634
• Court: Mississippi Supreme Court
• Parties: FAIRLEY v. STATE

138 So. 330

163 Miss. 682

FAIRLEY v. STATE

No. 29634

Supreme Court of Mississippi

December 7, 1931

(In Banc.)

1. INDICTMENT AND INFORMATION.

Clerk at same term at which indictment was returned, lawfully corrected manifest clerical error in date of filing indictment given as July 6, 1921, instead of 1931 (Code 1930 section 1198).

2. INDICTMENT AND INFORMATION.

Dating signing, and filing of indictment by clerk need not be done in presence of grand jury (Code 1930, section 1198).

3. INDICTMENT AND INFORMATION.

Order of court entered on minutes is unnecessary to authorize clerk to correct manifest error or omission in filing of indictment (Code 1930, section 1198).

4. CRIMINAL LAW.

Where wife of deceased was niece of district attorney, he properly recused himself and took no part in, investigation of killing, even if not legally disqualified (Code 1930, section 4367).

5. CRIMINAL LAW.

Defendant in murder prosecution had no right to demand that prosecution against him be conducted by any particular person.

6. INDICTMENT AND INFORMATION.

Defendant in murder prosecution held not prejudiced because Indictment returned was signed by duly appointed and acting district attorney pro tem (Code 1930, section 4367).

7. CRIMINAL LAW.

Duly licensed attorney held not disqualified to act as district attorney pro tem, because he was regularly elected and qualified district attorney of another circuit court district (Code 1930, section 4367).

8. CRIMINAL LAW.

In murder prosecution, where subsequent evidence directly connected defendant with evidence regarding shotgun found, to which objections were interposed, court properly overruled objections from which rulings had been reserved.

9 HOMICIDE.

Evidence held sufficient to support conviction for murder.

HON. E. M. LANE, Judge.

APPEAL from circuit court of Covington county HON. E. M. LANE, Judge.

Guy Fairley was convicted of murder, and he appeals. Affirmed.

Affirmed.

G. H. Merrell, of Collins, for appellant.

Geo. T. Mitchell, Attorney-General, and Eugene B. Ethridge, Special Agent, of Jackcson, for the state.

Briefs of counsel not found.

OPINION

Cook, J.

At the July, 1931, term of the circuit court of Covington county, the appellant, Guy Fairley, and his son-in-law, William Fairley, were jointly indicted for the murder of H. L. Everett. Upon proper motions a severance was granted, and thereupon an agreed verdict and judgment of guilty as charged with imprisonment for life in the state penitentiary was entered against William Fairley, and the appellant was placed upon trial and was convicted and sentenced to be hanged, and from this conviction and sentence this appeal was prosecuted.

Other than some testimony as to previous good character, the appellant offered no evidence. The evidence offered by the state, circumstantial and direct, established, beyond any reasonable doubt, that the appellant was guilty of an atrocious murder, deliberately planned and executed, and, although the sufficiency of the evidence is not challenged by any of the assignments of error, we think a brief outline thereof should be given.

Some months prior to his death on May 2, 1931, H. L. Everett, a federal prohibition enforcement officer, who resided in Jackson, Mississippi, reported the appellant for a violation of the liquor laws, and, upon an indictment returned at the February term of the United States district court at Biloxi, he was arrested. On the morning of May 2, 1931, Everett left Gulfport in a Ford automobile traveling north on United States highway No. 49. When he reached a point on this highway just north of Maxie, Mississippi, he came upon a wrecked automobile in which there were two people who were seriously injured, and in which he discovered a quantity of intoxicating liquor. He stopped at the scene of the wreck and destroyed the liquor, and assisted in caring for the injured persons, and, while he was so engaged, the appellant and William Fairley drove up to the scene of the wrecked car and stopped, and remained there until the injured were removed and Everett had driven north. The two Fairleys then entered their automobile and followed Everett to Brooklyn, Mississippi. At that place, Everett arranged for a wrecker to go to the scene of the wreck and move the damaged car to Brooklyn. While Everett was delayed at Brooklyn, the two Fairleys loitered around town, and, when he proceeded north toward Jackson, they immediately followed. Upon arriving at a gasoline station in the northern part of the city of Hattiesburg, Everett stopped, and the Fairleys drove by him and stopped at a drug store one block north of the filling station. There they waited until Everett made purchases at the filling station and at a store just across the street therefrom, and until he had passed them on his journey north on United States highway No. 49, when they followed. At a point north of Seminary, about a half mile south of the place where the body of Everett was found, two cars were observed traveling north on the highway, one immediately behind the other. A few moments thereafter the witnesses who observed these cars heard two gunshots, and a short while later, or about twelve-thirty p. m., Everett's car was discovered by the side of the road in a creek. Everett's body, with two loads of buckshot in the left side of his neck and face, was found in the car. Later in the afternoon the Fairleys were seen traveling south towards Seminary on another highway. Shortly after the killing, two empty shells and a Remington automatic shotgun were found near the roadside a short distance north of the point where the body of Everett was found. These shells and the shotgun were offered in evidence; the gun being fully identified by the then owner thereof, and by its prior owners who lived near the appellant, and by a witness who loaned the gun to the appellant a short while before the killing.

All of the facts stated above were testified to by witnesses other than William Fairley, who was indicted jointly with the appellant. William. Fairley was offered as a witness by the state, and he gave a full and complete disclosure of the facts leading up to the killing, which corroborated the testimony of the other witnesses in all material respects.

The testimony of William Fairley was substantially as follows: He is a son-in-law of the appellant, and for some time prior to the death of Everett he lived in the appellant's home which was located on United States highway No. 49, at or near Maxie, Mississippi. The appellant had become incensed at Everett for reporting him and other members of his family for violations of the liquor laws, and for some time prior to the killing plans for killing Everett had been discussed in the family. On the morning of May 2, 1931, some member of the family reported to the appellant that Everett had passed, driving north on United States highway No. 49. Immediately he instructed the witness to proceed to the home of a neighbor for the purpose of hiring an automobile to pursue Everett. Arrangements for the car were consummated, the shotgun, which was afterwards introduced in evidence, was placed in the automobile by the witness, and he and the appellant proceeded north in pursuit of Everett. As to their movements from that place to a point just north of Seminary, Mississippi, the witness' testimony coincided with that of the other witnesses whose testimony is outlined above. The witness Fairley further testified that when they reached a point just north of Seminary the appellant, who was driving the automobile in which they were riding, stopped it and requested the witness to take the wheel; that they then speeded up and again brought Everett's car within their view; that, upon reaching a long straight stretch of road, the appellant instructed him to pass the car they were pursuing, and thereupon climbed on the rear seat and took up the shotgun, and, as he drove by Everett's car, appellant fired twice at Everett; that a short distance further along the road the appellant first threw out the shells and then threw the gun into a creek; and that they then proceeded through Collins on to Laurel, Hattiesburg, and Maxie, and arrived at their home about four p. m. This witness also identified the gun...