Funches v. State
| Decision Date | 14 January 1963 |
| Docket Number | No. 42456,42456 |
| Citation | 246 Miss. 214,148 So.2d 710 |
| Parties | Athen Lee FUNCHES v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Prewitt & Bullard, Vicksburg, for appellant.
Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
Appellant, Athen Lee Funches, was convicted of murder in the Circuit Court of Warren County, and was sentenced to a life term in the penitentiary. He admitted shooting his paramour with a pistol, but contended the killing was accidental.
The evidence, although conflicting, sufficiently supports the jury's verdict. Funches and Alice Marie Lacey, deceased, both Negroes, were not married but had been living together for about two years. The jury was warranted in finding that Funches was upset and angry about another man, Gibson, with reference to Alice; that he and Alice had arguments about Gibson, and she threatened to leave him. On the day before the homicide, Funches threatened to kill her. According to the testimony of a 13-year-old neighbor, Jimmy Barnes, while Alice and Funches were removing her clothes from a cabinet, preparatory to her leaving, and Alice was laying across the bed, Funches took his pistol, cocked it, aimed it at her, and pulled the trigger, shooting her in the back. Defendant claimed that the pistol discharged accidentally while Alice was walking across the room. The city police court judge, who presided on preliminary hearing, said he remembered Barnes there stating that he was not looking at either of the parties when the shot was fired, but Barnes denied this. These and other conflicts in the evidence were for the jury.
However, in this posture of the case, the sole issue was whether the shooting was intentional or accidental. The state obtained this instruction: 'The court instructs the jury for the state that malice aforethought mentioned in the indictment may be presumed from the unlawful and deliberate use of a deadly weapon.'
In view of the limited issue, we think the granting of this instruction was reversible error. Shields v. State, 144 So.2d 786 (Miss.1962), recently reviewed the cases discussing this type of instruction. It was there observed that, where the facts and circumstances surrounding the killing have been disclosed, malice should be left for consideration of the jury, and such direction should not be granted to the state as an aid to bolster its evidence. This is the effect of the quoted instruction. This so-called presumption is rebuttable, and is more properly classified as an inference. After it is rebutted, the facts upon which the inference is based are still available to be weighed by the jury, but its principle should not be projected in an instruction, ...
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Tran v. State, 92-KA-01058-SCT
...855 (Miss.1972); Stewart v. State, 226 So.2d 911 (Miss.1969); Hydrick v. State, 246 Miss. 448, 150 So.2d 423 (1963); Funches v. State, 246 Miss. 214, 148 So.2d 710 (1963); Shields v. State, 244 Miss. 543, 144 So.2d 786 (1962); Johnson v. State, 223 Miss. 167, 77 So.2d 824 (1955); Tullos v. ......
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Hendrieth v. State, 45557
...will be implied from the deliberate use of a deadly weapon is not proper. * * *' (246 Miss. at 454, 150 So.2d at 426) Funches v. State, 246 Miss. 214, 148 So.2d 710 (1963), is a case where there is a conflict as to whether or not the defendant pointed his pistol at the deceased or whether o......
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Carter v. State, 55659
...855 (Miss.1972); Stewart v. State, 226 So.2d 911 (Miss.1969); Hydrick v. State, 246 Miss. 448, 150 So.2d 423 (1963); Funches v. State, 246 Miss. 214, 148 So.2d 710 (1963); Shields v. State, 244 Miss. 543, 144 So.2d 786 (1962); Johnson v. State, 223 Miss. 167, 77 So.2d 824 (1955); Tullos v. ......
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Towner v. State
...Though he cites none, Towner's assertion is based upon well rooted case law. For instance, our supreme court held in Funches v. State, 246 Miss. 214, 148 So.2d 710 (1963), where the determinative issue was whether a fatal shooting was deliberate or accidental, that an instruction on the pre......