Gordon v. State, 46636
| Decision Date | 24 January 1972 |
| Docket Number | No. 46636,46636 |
| Citation | 258 So.2d 752 |
| Parties | Freddie Lee GORDON v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Donald K. Marcus, Landman Teller, Jr., Vicksburg, for appellant.
A. F. Summer, Atty. Gen. by Guy N. Rogers, Asst. Atty. Gen., Jackson, for appellee.
This case comes to this Court from the Circuit Court of Warren County, Mississippi, in which the appellant Freddie Lee Gordon was indicted, tried and convicted of the crime of murder. He was sentenced to a life term in the state penitentiary. He has appealed to this Court and now contends, among other things, that his motion for a directed verdict in his favor should have been sustained.
The following facts shown by the record are what is said to have occurred. Freddie Lee Gordon, the defendant, in company with other friends, visited several restaurants on the night of February 14, 1971. They consumed several quarts of beer between all of them. However, there is nothing in the record to indicate that any of the parties was under the influence of intoxicants. They finally came to Paradise Inn, a restaurant, where many persons had gathered for a dance. They were drinking beer and listening to music. After the appellant and his friends arrived, Eddie Earl (Bo) Smith and Henry 'Butch' Harris came into the cafe. Harris testified that about two weeks before he went with Eddie Earl Smith to Paradise Inn he had seen the defendant Gordon take 'Bo' Smith's wallet and that they had a fight about the wallet. He said he heard the defendant tell 'Bo' Smith that 'he was going to get him no matter what.' He testified, however, that Freddie Lee Gordon later gave 'Bo' his wallet and said that they were then friends. The defendant admitted that during the fight he had threatened the deceased. Harris said that 'Bo' was teasing Freddie at the Paradise Inn on the night of the homicide, but that Freddie was not aware of it. The cafe owner saw 'Bo' Smith and Freddie Gordon in the cafe, but he did not hear them have any conversation. He said he guessed Freddie left about thirty minutes after 'Bo' had gone. Henry Harris said 'Bo' did not speak to Freddie Gordon before he left and that Freddie left the cafe about two minutes after 'Bo' had gone.
The defendant testified that he talked to 'Bo' Smith and that 'Bo' Smith demanded that defendant give him his wallet and that 'Bo' asked him to go outside with him at the Paradise Inn and had pulled him toward the door. He testified that when he refused to go outside 'Bo' had said: 'Well, you've got to go home and you ain't going to make it.'
The defendant testified that sometime later he left to go home, and that in order to get home he had to pass 'Maxine's Place'. He said that as he reached Maxine's Place he saw 'Bo' Smith running toward him with a beer bottle in his hand. He asked 'Bo' to let him alone, but 'Bo' continued to press forward. He then noticed that 'Bo' had a razor in one hand. The defendant drew a pistol and fired in the air and finally he shot at 'Bo' when 'Bo' continued to press forward. The defendant then ran to his home. Defendant said that he did not know the deceased was injured until the officers came to his home. Another witness testified that she heard the shots and that they were fired rapidly, however, she did not pay any attention because she thought the noise was made by firecrackers.
The body of Eddie Earl Smith was discovered and a deputy sheriff was summoned. He made a search at night near the body of the deceased and along the road, but found no weapons of any description near the body of deceased.
The appellant's motion for a directed verdict was based upon the so-called Weathersby Rule. The rule expressed by this Court in Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933) is in the following language:
165 Miss. at 209, 147 So. at 482.
The Weathersby Rule has been accepted by this Court in many cases since it was announced. Some of the late cases on this rule are Wilson v. State, 199 So.2d 445 (Miss.1967); Kinkead v. State, 190 So.2d 838 (Miss.1966); and Aven v. State, 246 Miss. 839, 152 So.2d 924 (1963). This rule simply makes it mandatory for the court and jury to accept the testimony of the defendant and his witnesses who testify that the defendant acted in self-defense where there is no testimony to contradict their version of the homidice and where there are no physical facts or evidentiary circumstances on which a contrary finding could be reasonably predicated.
On the other hand, where there are circumstances shown in the evidence which materially contradict the defendant's version of self-defense the jury is not required to accept his version but may consider his version of self-defense along with the conflicting evidence in determining the guilt of innocence of the defendant. Carroll v. State, 196 So.2d 878 (Miss.1967).
In the instant case the appellant's testimony shows that he shot the deceased at a time when the deceased was 'coming on him' with a bottle and a razor. Are there then material facts from which a jury could reasonably determine that the defendant's version was not true?
In the case of Lee v. State, 232 Miss. 717, 100 So.2d 358 (1958) the defendant was said to have made a threat to kill the deceased, but in that case, the deceased was trying to break into the home of the defendant at the time he was shot. The broken back door and other significant evidence corroborated the testimony of the defendant. We held that the Weathersby Rule applied, although there was proof of a previous threat.
In the case of Aven v. State, 246 Miss. 839, 152 So.2d 924 (1963), the witnesses...
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Carson v. State, 46674
...Appellant moved for a directed verdict and urges that the Weathersby Rule should apply in this case. In the case of Gordon v. State, 258 So.2d 752, 753 (Miss.1972), we reviewed many of the cases dealing with the Weathersby Rule and The appellant's motion for a directed verdict was based upo......
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...seldom sustained as being applicable to the facts of particular cases. In Carson v. State, 261 So.2d 462 (Miss.1972) and Gordon v. State, 258 So.2d 752 (Miss.1972), the Court restated the 'The Weathersby Rule has been accepted by this Court in many cases since it was announced. Some of the ......
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...by the court and is not a proper subject of an instruction to the jury. Carson v. State, 261 So.2d 462 (Miss.1972); Gordon v. State, 258 So.2d 752 (Miss.1972). Of course, such action is always subject to review by this We have thoroughly examined the record in this case and are of the opini......
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Johnson v. State, 49703
...where there are no physical facts or evidentiary circumstances on which a contrary finding could be reasonably predicated. Gordan v. State, 258 So.2d 752 (Miss.1972). On the other hand, if there are circumstances shown in the evidence which materially contradict the defendant's version of s......