Golden v. State

• Citation: 223 Miss. 649,78 So.2d 788
• Decision Date: 28 March 1955
• Docket Number: No. 39624,39624
• Parties: G. L. GOLDEN v. STATE.
• Court: United States State Supreme Court of Mississippi

Page 788

78 So.2d 788

223 Miss. 649

G. L. GOLDEN v. STATE.

No. 39624.

Supreme Court of Mississippi.

March 28, 1955.

Robertson Horton, Winona, King & King, Durant, for appellant.

J. P. Coleman, Atty. Gen., by Wm. E. Cresswell, Asst. Atty. Gen., for appellee.

ROBERDS, Presiding Justice.

Golden was convicted of assault and battery upon Jessie May Golden, his wife, with intent to kill her, and sentenced to the state penitentiary for ten years. On this appeal he says, first, the conviction was against the great weight of the evidence, and, second, that the trial judge granted to the State an erroneous instruction. He urges reversal and remand of the case for another trial.

The first contention calls for a summary of the testimony.

The first witness for the State was Jessie May Golden. She was 27 years of age. She and the defendant married April 17, 1947. They have three children--ranging from one to five years of age. The offense was committed the night of February 21, 1953. It occurred at their home. The instrument used by defendant is designated in the record a '* * * red hot wagon rod or iron poker' some three feet long. Defendant conceived the idea his wife had some money which she refused to deliver to him. It is not shown she had any money. She says she had none. Here is her partial account of what happened: 'It was on a Saturday night and was kind of drizzling rain and he came back from town early and was laying in the bed about 11:30 or 12:00 o'clock and he got mad and got up and started fussing and put the road in the fire. He said he had been beating me and beating me and that didn't do any good and he would burn it out of me, and he went and got the rifle and stood the rifle up there and told me to take off my gown, he didn't want to burn my gown, and that if I run he would shoot me, and when the rod got hot he got it and burned me all on the arms and back and told me he was going to burn my eyes out and I got under the bed trying to get away from him and he kept jugging me on the legs and burning me and I got out.' She further said that the burning process consumed some fifteen to twenty minutes; that the '* * * iron would get cool and that he would go put it back in the first and heat it again'. These burns were made with this hot iron upon a large part, if not most, of her body. There were eighty-four of them. She begged him to desist but he continued. She screamed with pain, awaking the children. She further testified 'he said he had been beating on me and beating on me and that didn't do any good and he was going to burn me, told me to pull my gown off, he didn't want to burn it'. Told her to give him the money or 'he would burn her up'. She told him she had no money. He threatened to throw her into the open fire. She was afraid to tell anyone because of defendant's threats. She treated her burns with unguentine. The trial of this case took place April 17, 1954, a year and two months after the burns were made. This witness exhibited the burned places and scars to the jury. This crime occurred Saturday night. Sunday night following defendant came home very angry and proceeded to break into the house. His wife shot him with the rifle. She says she shot him because he said that when he returned he would throw her into the fire and burn her up. She was tried for and acquitted of that shooting.

Henry Harrison testified he was at the Golden home on Monday night after Jessie May had shot defendant. He described her wounds, supporting what she said about the number and extent of the burns.

Pink Harrison, son of Henry Harrison, was also there that night. He gave, in substance, the same testimony as did Henry about the nature and extent of the burns.

Wilson Bingham was the jailer. Jessie May was brought to the jail Monday night for shooting defendant. He and his wife saw the burned places on her body. He said she had burns and blisters 'from her neck plum down to her waist line'; that she had eighty-four burns upon her body, all appearing to have been made within the previous three or four days. Her clothes were sticking to her body.

Dr. Riddell testified that on Tuesday morning the sheriff requested him over the telephone to examine Jessie May. He did that in jail. He said 'I found multiple areas of second degree burns scattered all over her body'; that he did not see any burns he would describe as third degree burns; that he was much impressed by the number of burns. Some were more serious than others. 'One would be about the size of your finger and another would be about the size of two fingers and so on'. He said a second degree burn would raise blisters. They are '* * * into the skin, but not down below the skin; it didn't burn much past the skin in other words'. He said the burns he saw were very serious; that they can prove fatal 'if enough of them are there * * *'. He was asked on cross-examination what percentage of the body would have to be covered by the type burns he saw to be fatal to the victim. He replied 'If depends on the kind of medical care you get. It would be around fifty to sixty percent. At any time you denude enough skin fromt the body it can be fatal from loss of blood, serum and so forth'. He did not prescribe for the patient. His mission was to examine her burns. He said the wounds could have been made by use of the iron rod 'or an instrument of this type'. Here the State rested.

The defendant put on this evidence:

Lula Golden, the mother of defendant, said she was at the Golden home Monday night after defendant was shot; that Jessie May Golden said nothing to her about being burned; that she, Jessie May, was wearing a blouse and skirt.

Alec Eiland was 83 years of age. He was a grandfather of defendant. He said he saw Jessie May in the municipality of Kilmichael after she claims defendant made burns upon her body and that Jessie May said she had not been burned. However, on cross-examination he said he did not remember the day nor the month this conversation took place. He said 'I think it was last year'. Then he said he did not know whether it was the current year or 'last year' and finally said he thought it had been about six months.

William Holmes testified he lived about three miles from Kilmichael; that on Saturday night, February 21, 1953, defendant came to his house between nine and ten o'clock and awakened him and said he had run his automobile into a ditch and wanted the witness to help pull him out; that he, Holmes, got up and went to the scene in his truck but was unable to pull the car back into the road; that witness carried defendant to the home of Joe Eiland and defendant went into the Eiland home. Witness did not see defendant again that night. However, on cross-examination witness was uncertain as to when this occurred. He said 'I think it was along in February'. He then said it could have been the first, second or third Saturday in February.

Joe Eiland, uncle of defendant, testified that the defendant came to his home 'late over into the night' of February 21, 1953, and spent the night, leaving about five o'clock in the morning. That he did not know why he came; that he lived about six miles from defendant's home. That was the only time defendant ever spent the night at the home of the witness.

Columbus Golden was the father of defendant. Defendant and family lived upon the farm owned and occupied by the witness. This witness and one of his counsel, sometime after the occurrence here, went to the home of defendant, and the witness made a sketch, or plat, of the house and the room arrangement therein, with measurements. However, this appears to have been directed largely to the location of the bullets made by the shooting on Sunday night. The floor plan of the house made by this witness was introduced into evidence without objection.

G. L. Golden, the defendant, testified. He simply denied that he was at home the night of February 21, 1953. He said his car ran off the road; that he went to the residence of William Holmes; got him up; Holmes tried to get the car onto the road without success; that he, defendant, spent the night at Joe Eiland's, his uncle; went home Sunday morning. He then went into the affair which occurred Sunday night. Said he was forcing open a window in the home when his wife shot him; he described the scuffle between them. He was unable to explain his whereabouts on Saturday afternoon and did not know where he was on the Friday night before; said he had never before seen the wagon iron or poker. He admitted that at the April 1953 term of the circuit court he had been convicted 'on another charge' and sentenced to the state penitentiary for four years; that he had appealed this case to the State Supreme Court, which had affirmed his conviction, 71 So.2d 476, and that he was then awaiting departure to begin that penal sentence.

Columbus Golden, recalled, said defendant was at his house Monday night until arrested. He exhibited a bullet he said he found in the house. This was supposed to have been fired by Jessie May Sunday night. That was the evidence for the defendant.

J. W. Herring, the sheriff, was called by the State in rebuttal. He said ...