Gray v. State

• Decision Date: 20 August 1980
• Docket Number: No. 52022,52022
• Citation: Gray v. State, 387 So.2d 101 (Miss. 1980)
• Parties: Henry GRAY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 101

387 So.2d 101

Henry GRAY v.STATE of Mississippi.

No. 52022.

Supreme Court of Mississippi.

Aug. 20, 1980.

John P. Price, McComb, for appellant.

Bill Allain, Atty. Gen., by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before SMITH, P. J., and SUGG and COFER, JJ.

SMITH, Presiding Justice, for the Court:

Henry Gray was indicted for the murder of Jack Seals.Following his trial on that charge in the Circuit Court of Pike County, the jury returned a verdict convicting him of manslaughter.For that offense, he was sentenced to serve a term of 16 years imprisonment.He appeals, assigning several grounds for reversal.

It is contended that the verdict of the jury was "contrary to the weight of the admissible evidence."

Under this assignment in appellant's brief it is stated: "The defendant admitted that he shot the decedent, Jack Seals, and even admitted voluntary surrender of the weapon used in the shooting."

The homicide was committed at the Mexi-Hot, a bar at which soft drinks and beer were sold.It does not appear that intoxicants were a factor in the homicide.Ruby Carter, whose son owned the bar, testified that she was behind the bar immediately prior to the shooting.Gray was sitting on a stool at the bar when she first noticed him.Seals came up to the bar and asked Gray if he would have a beer and Gray refused.She testified that Seals had a bottle of Coke, a bottle of Pepsi and two glasses of ice at the time he was shot by Gray.It appears that two women had asked Seals to go to the bar and get their drinks for them.

According to Ruby Carter, who was a few feet away at the time of the shooting, she heard no "words" passed.The witness was looking at Seals when he was shot by Gray.She stated that Gray shot Seals several times, she did not know how many, at a time when Seals was obtaining the Coke and Pepsi and two glasses of ice for the women.She testified that when Seals was shot the drinks and glasses fell to the floor.She stated that nobody disturbed the body of Seals where he lay on the floor.She saw no weapon on Seals and there is no testimony that a weapon was found on his body afterward.

Constable Estess testified that he was called and informed that there had been a shooting.When he arrived at the Mexi-Hot he found Seals lying on the floor dead.He stated that Seals had several wounds, including wounds in the shoulder and back and was lying face down on the floor.He identified photographs of the body.He identified a revolver which had been surrendered to him by Gray as the weapon used in killing Seals.It was loaded with empty shell cases at the time it was given to him by Gray and there were no "live rounds" in it.

Dr. Burrow, a pathologist, was called and arrived to find Seals' body lying on the floor where it had fallen.He found one bullet wound in the right upper thorax anterior and there was one in the right posterior chest, one in the right arm and there was a wound in the posterior aspect of the right neck.The body was transported to the morgue where Dr. Burrow performed an autopsy.He described the numerous bullet wounds in detail and stated that, in his opinion, of the several wounds, the immediate cause of death had been the bullet which entered the right chest, tore the aorta away from the heart, releasing blood into the body.

A ballistics expert from the Mississippi Crime Lab testified that he had made an examination of the bullets taken from the body of Seals and that he had determined that the projectiles were 22 caliber long rifle hollow points.He said that comparison of these projectiles had been made with test bullets fired from the weapon which had been identified by Constable Estess as the one surrendered to him by Gray, and that they had been fired from that revolver.

Henry Gray, the defendant, testified as a witness in his own behalf.He said that he had shot Seals because he was afraid of him.He recalled that he and Seals had had a falling out some 6 months previously and that Seals had shot him in the shoulder with a rifle.He said that he had sued Seals for his hospital expenses.He testified that Seals had said before he was shot that he had thought the controversy as to the former shooting and the payment of the hospital bill was over.He testified that Seals had said to him "last time I liked to have got you and this time I will get you", and had reached under his shirt which was hanging out.Gray said that he had backed up from the stool and started shooting, thinking that Seals was reaching for a weapon.He testified that the week before he shot Seals he and Seals had gotten together and made a settlement of their difficulties but it "didn't work out that way."He said that he had been carrying the gun in his belt, and that he had the gun that night because "I kept it with me when I went anywhere."He testified further that he didn't see any knife or any other weapon but that he had thought Seals was making a break for a weapon and that every time he shot Seals, he and Seals were facing each other and Seals was coming steadily toward him.

Photographs taken of Seals' body as it lay on the floor showed that, contrary to the testimony of Gray, his shirt was not "out" but was neatly tucked into his trousers.

In Carroll v. State, 196 So.2d 878(Miss.1967), this Court said:

In reviewing the sufficiency of the evidence to support the verdict, this Court must accept as having been established all that was proved by the evidence, as well as all that such evidence reasonably tended to prove, together with all reasonable inferences to be drawn therefrom, favorable to the theory of the prosecution.

The jury's verdict had the effect of resolving all conflicts in the evidence against appellant, and the findings of the jury, as the trier of facts, are conclusive upon this Court.(196 So.2d at 883).

In considering this assignment, we must accept the evidence...