Funches v. State, No. 42456

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtETHRIDGE; McGEHEE
Citation246 Miss. 214,148 So.2d 710
PartiesAthen Lee FUNCHES v. STATE of Mississippi.
Decision Date14 January 1963
Docket NumberNo. 42456

Page 710

148 So.2d 710
246 Miss. 214
Athen Lee FUNCHES
v.
STATE of Mississippi.
No. 42456.
Supreme Court of Mississippi.
Jan. 14, 1963.

Page 711

[246 MISS 215] Prewitt & Bullard, Vicksburg, for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.

ETHRIDGE, Justice.

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 [246 MISS 217] 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...

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10 practice notes
  • Tran v. State, No. 92-KA-01058-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • August 22, 1996
    ...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. ......
  • Hendrieth v. State, No. 45557
    • United States
    • United States State Supreme Court of Mississippi
    • January 12, 1970
    ...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......
  • Carter v. State, No. 55659
    • United States
    • United States State Supreme Court of Mississippi
    • July 30, 1986
    ...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. ......
  • Hydrick v. State, No. 42564
    • United States
    • United States State Supreme Court of Mississippi
    • March 4, 1963
    ...of a deadly weapon is not proper. See cases cited in Shields v. State, 144 So.2d 786 (Miss.1962.) In the recent case of Funches v. State, 148 So.2d 710 (Miss.1963), where the sole issue involved was whether or not the fatal shooting was accidental, this Court pointed out that an instruction......
  • Request a trial to view additional results
10 cases
  • Tran v. State, No. 92-KA-01058-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • August 22, 1996
    ...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. ......
  • Hendrieth v. State, No. 45557
    • United States
    • United States State Supreme Court of Mississippi
    • January 12, 1970
    ...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......
  • Carter v. State, No. 55659
    • United States
    • United States State Supreme Court of Mississippi
    • July 30, 1986
    ...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. ......
  • Hydrick v. State, No. 42564
    • United States
    • United States State Supreme Court of Mississippi
    • March 4, 1963
    ...of a deadly weapon is not proper. See cases cited in Shields v. State, 144 So.2d 786 (Miss.1962.) In the recent case of Funches v. State, 148 So.2d 710 (Miss.1963), where the sole issue involved was whether or not the fatal shooting was accidental, this Court pointed out that an instruction......
  • Request a trial to view additional results

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