Grady v. State

• Decision Date: 08 November 1926
• Docket Number: 25783
• Citation: Grady v. State, 144 Miss. 778, 110 So. 225 (Miss. 1926)
• Court: Mississippi Supreme Court
• Parties: GRADY v. STATE. [*]

110 So. 225

144 Miss. 778

GRADY v. STATE. ^[*]

No. 25783

Supreme Court of Mississippi

November 8, 1926

Division B

Suggestion of Error Overruled Nov. 22, 1926.

APPEAL from circuit court of Panola county, HON GREEK L. RICE, Judge.

W. H Grady was convicted of murder, and he appeals. Affirmed.

Affirmed.

J. F. Dean and J. W. Kyle, for appellant.

I. The evidence fails to show the guilt of appellant beyond a reasonable doubt. It actually and positively shows that defendant acted solely in his self-defense. Every fact and circumstance connected with the case as shown by this record corroborates appellant in his testimony as to what occurred in the engine room when McCoy was killed.

II. Under the instruction of the court, the jury was shut up to a verdict of murder or nothing. The court gave the instruction on murder saying if they found the defendant guilty they might return one of the following verdicts, etc. Then the court refused to give an instruction at the request of the state permitting a verdict of manslaughter, so that, necessarily, the verdict had to be murder or not guilty.

If the jury was warranted in returning a verdict of manslaughter, then this case should be reversed. Johnson v. State, 75 Miss. 635; Allen v. State, 139 Miss. 605; Tatum v. State, 107 So. 418.

In neither the Johnson nor Allen cases was an instruction on manslaughter asked by either side, but the court in each of these cases excluded manslaughter from the consideration of the jury and each case was for that reason reversed.

In this case the murder instruction used the word "may," but it is unlike the Tatum case in that an instruction on manslaughter was requested and refused. That the defendant did not request the instruction cuts no figure. This court has repeatedly held that all of the instructions must be considered as a whole and held distinctly in the Tatum case that the defendant could take advantage of any error in the state's instruction without requesting an instruction to cure the error.

The error of the court in refusing the manslaughter instruction was accentuated by the granting of the second and third instruction for the state.

J. A. Lauderdale, Assistant Attorney-General, for the state.

I. Appellant contends that instruction No. 1 is erroneous in that it requires the jury to find the defendant guilty of murder or acquit him; that it excludes the jury from considering and returning a verdict of manslaughter. This court has held otherwise and approved this instruction in a case where it held that a manslaughter instruction would have been proper if requested. Tatum v. State, 107 So. 418.

II. Appellant contends that instruction No. 2 for the state is erroneous in that it prevents the jury from considering the insulting language for the purpose of reducing the grade of the crime from murder to manslaughter. Mere words or gestures, however insulting or abusive they may be, are not adequate to reduce the grade of homicide from murder to manslaughter. Richardson v. State, 123 Miss. 232; Preston v. State, 25 Miss. 383; 13 R. C. L., page 795, paragraph 99; 26 C. J., page 1134, paragraph 119.

III. The state requested an instruction defining manslaughter and authorizing the jury to find the defendant guilty of manslaughter. The instruction was refused and the appellant assigns this action of the court as error. The state did not obtain an erroneous instruction and the defendant did not request an instruction defining manslaughter.

The theory of the state on the trial of this cause was that the crime was murder; that of the defendant that the homicide was justifiable by reason of self-defense. It was not error for the court to refuse said instruction defining manslaughter. Hannan v. State, 87 Miss. 375; Dye v. State, 127 Miss. 492. Appellant did not request a manslaughter instruction. He cannot complain that none was given. Tatum v. State, 107 So. 417.

IV. The peremptory instruction requested by the defendant was properly refused. The testimony is contradicted by the physical facts in the case.

The defendant was properly convicted of murder and the judgment should be affirmed.

Argued orally by John W. Kyle, for appellant, and J. A. Lauderdale, Assistant Attorney-General, for the state.

OPINION

ANDERSON, J.

Appellant, W. H. Grady, was indicted and convicted in the circuit court of Panola county of the murder of W. G. McCoy and sentenced to the penitentiary for life. From that judgment he prosecutes this appeal.

Appellant and the deceased both worked for the Carrier Lumber Company in its box factory at Sardis, Miss. Appellant was foreman of the box factory, and the deceased was engineer. They both lived at a hotel near the box factory and disliked each other to such an extent that they had not spoken for several months. It was a part of appellant's duties to go to the boiler room to look after the fire. It was also his duty to see that steam was turned on in the box factory. The engine room and boiler room were separate. They were in the same building, but something like fifteen to twenty yards apart, with an open space between them. The box factory was on the second floor of the building and could be reached either through the boiler room, through an open court, or by means of a ladder leading directly into the box factory. It was very cold. Appellant, as was his duty, went early to the box factory to see if the pipes were frozen. He found insufficient steam, and went to the boiler room to see if sufficient fuel was being used. While in the boiler room the deceased came in, and, without provocation, assaulted and gave appellant a beating and had to be pulled off of him. Deceased was a strong, powerful man physically, and appellant delicate and weak. Appellant immediately left the boiler room and went to his room at the hotel where he lived, and got his pistol and immediately returned to the box factory, first entering the boiler room, and then going from there to the engine room where he found deceased. There an altercation took place between appellant and deceased, during which appellant shot the deceased to death with his pistol. There was no other person present at the scene of the homicide other than appellant and deceased. Therefore, what occurred there between appellant and deceased which resulted in the death of the latter rests alone on the testimony of appellant and the surrounding facts and circumstances. Appellant undertook to show by his evidence that he killed the deceased in self-defense. He testified that although he had not been in the engine room where the deceased was foreman for a good while, he went there on a peaceable mission, which was to request the deceased to turn the steam on in the box factory; that the deceased was standing at a work bench to the right of the door entering the engine room, which was a short distance above the floor of the engine room, with his right side, to appellant; that when appellant made the request that the deceased turn on the steam in the box factory, the deceased applied to him vile epithets, and seized an all steel monkey wrench lying on the work bench, and with this raised in his hand turned toward appellant, when appellant drew his pistol and fired; that the first shot struck the deceased in his uplifted arm in the hand of which he held the monkey wrench; that appellant then emptied his pistol shooting as rapidly as he could while deceased was advancing on him; that appellant then left the box factory and went to the hotel where he lived and called for the sheriff and told him of the shooting. The monkey wrench was found near the body of the deceased.

The deceased had threatened appellant, stating that if he "did not stay out of the boiler room blocking his path, he was going to knock his block off," while appellant had threatened that if the deceased ever whipped him "he would not get away with it." Appellant and the deceased had not spoken to each other for six months. During that period appellant had not been in the engine room where deceased's duties were; the deceased had ordered the appellant to stay out of the engine room, and he had not been back until the time of the homicide. The deceased lived only a few minutes after being shot. There was a pool of blood on the work bench where deceased was standing at the time he was shot, and a stream of blood from the bench to the door where his body was found, the door being about eighteen feet from the bench. The evidence tended to show that bullet marks were found on the wall near the work bench and on the floor where the deceased was found.

Appellant argues with much ability and force that the court erred in not directing a verdict of not guilty as requested by him. Appellant's position is that his own evidence, which constitutes all the testimony as to what took place at the time of the homicide, shows, without conflict, that h...