Godfrey v. State

• Decision Date: 13 March 1939
• Docket Number: 33591
• Citation: 187 So. 199,185 Miss. 70
• Court: Mississippi Supreme Court
• Parties: GODFREY et al. v. STATE

187 So. 199

185 Miss. 70

GODFREY et al. v. STATE

No. 33591

Supreme Court of Mississippi, Division B

March 13, 1939

APPEAL from the circuit court of Holmes county HON. S. F. DAVIS Judge.

K. C Godfrey was convicted of murder, and Clarence Williams was convicted of manslaughter, and they appeal. Affirmed.

Affirmed.

Sandy R. King, of Durant, for appellants.

The trial court erred in permitting the state to interrogate Sally Riley, a main defense witness, as to whether or not she was guilty of the offense of unlawful cohabitation with one Buddy Ruck, over the objection of the defendants. This method of impeachment of a witness is strictly forbidden by statute and is highly prejudicial to the merits of any case.

Section 1532, Code of 1930; Starling v. State, 89 Miss. 328, 42 So. 798; Tuberville v. State, 179 So. 340.

This court has ruled in effect that where the prosecution resorts to prejudicial tactics calculated to deny a fair trial the judgment of the court will be set aside by it.

Turner v. State, 151 So. 721.

The appellants were charged with first degree murder and this entire record shows that the defendants made out a case of self-defense, without substantial contradiction by the state's proof.

There is absolutely no conflict in the evidence of the appellants that during the fight Clarence Williams was wounded over the left eye with a brick thrown by the deceased, and twice wounded on the head with a blunt instruments, and was stabbed in the arm with a knife by Haywood McLelland, as shown by the testimony of the appellants, and the fact that appellant Williams was seriously wounded was substantiated by one of the State's witnesses Inez Unger. The overwhelming weight of the evidence, or rather the entire evidence, was in the appellants' favor that regardless of who did the cutting, it was done in defense of a boy who was "ganged up on" and who was in a serious press to save his life and limb. And the appellants were entitled to a directed verdict of not guilty on the ground of self-defense, the assailants' reputation for peace and violence having been shown to be bad.

Jarman v. State, 172 So. 869; Weathersby v. State, 165 Miss. 207, 147 So. 481.

Evidence that accused killed in the heat of passion or self-defense is insufficient to sustain murder conviction.

Pigott v. State, 107 Miss. 552, 65 So. 583; Staiger v. State, 110 Miss. 557, 70 So. 690.

Where evidence only raises issue of self-defense or manslaughter, murder conviction will be reversed.

Jones v. State, 98 Miss. 899, 54 So. 724; Cotton v. State, 31 Miss. 504; 52 Miss. 23; 58 Miss. 778; 63 Miss. 265; McGehee v. State, 138 Miss. 822, 104 So. 150.

The verdict of the jury is contrary to the overwhelming weight of the evidence and is contrary to law.

Jolly v. State, 174 So. 244.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

This court has held in a good many cases that it is proper to cross-examine a witness so as to show bias, prejudice and interest of the witness toward the crime or the perpetrators of it. This character of cross-examination is allowed for whatever it may be worth to the jury in passing upon the credibility of the witness and in determining what weight shall be given to such testimony.

Cody v. State, 167 Miss. 150, 148 So. 627; Rouse v. State, 107 Miss. 427, 65 So. 501; Hardy v. State, 143 Miss. 352, 108 So. 727; Ivy v. State, 84 Miss. 264, 36 So. 265.

We submit that this is that character of case where at least the cross-examiner had the right to inquire into such matters as would throw light upon any reason the witness might have for hostility or interest in the side for which she was testifying. We submit that this cross-examination was properly allowed; particularly do we say this in view of the fact that for two pages of the record prior to the objection, this particular type of inquiry had been indulged in without objection on the part of appellants.

Under the State's evidence, there was sufficient testimony to show that this was a malicious killing. It is true appellant attacks the credibility of the witnesses for the State, but this was a matter addressed to the jury, and it alone. Assuming that the testimony of the witnesses for the State were true, the State had a right to request these instructions and the court properly granted them.

We submit that the evidence for the State in this case is not of such character as that this court would be required to set aside the verdict, or in holding the trial court in error in overruling the motion for a new trial based on this ground. As showing the character of evidence which would require such action on the part of this court, see Thomas v. State, 129 Miss. 332, 92 So. 225; Dean v. State, 173 Miss. 254, 160 So. 584; Hinton v. State, 175 Miss. 308, 166 So. 762.

OPINION

Ethridge, P. J.

K. C. Godfrey and Clarence Williams were indicted in the circuit court of Holmes county for the murder of Morgan McLellan, and placed upon trial, K. C. Godfrey being convicted of murder and sentenced to life imprisonment, while Clarence Williams was convicted of manslaughter and sentenced to serve a term of five years in the state penitentiary at hard labor; from which judgments this appeal has been prosecuted.

The killing occurred at the home of Sallie Riley, who was giving some kind of social entertainment or dance. The deceased and two of his brothers came to the home of Sallie Riley, to attend the dance, and on arriving found that she was charging each person the sum of 5 cents to pay for the music for the occasion, which was furnished by K. C. Godfrey on his guitar. The...