Harrell v. State, 45265

• Decision Date: 17 February 1969
• Docket Number: No. 45265,45265
• Citation: 218 So.2d 883
• Parties: Lillie Bell HARRELL v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 883

218 So.2d 883

Lillie Bell HARRELL v. STATE of Mississippi.

No. 45265.

Supreme Court of Mississippi.

Feb. 17, 1969.

Rehearing Denied March 3, 1969.

H. T. Carter, Columbus, for appellant.

Joe T. Patterson, Atty. Gen., by Guy N. Rogers, Asst. Atty. Gen., Jackson, for appellee.

SMITH, Justice:

Appellant, Lillie Bell Harrell, was indicted and tried in the Circuit Court of Lowndes County for the murder of Jesse Williams. She was convicted and sentenced to serve a life term in the penitentiary. This appeal is from that conviction and sentence.

There are several assignments of error, at least one of which presents a novel and interesting question. However, it is necessary that we notice only one of the assignments, that being whether the evidence was sufficient to sustain the conviction. The other matters of which appellant complains are unlikely to recur upon a retrial of the case.

The homicide occurred on the night of June 4, 1967 at the home of appellant. A party was in progress and Williams had come, although he had not been invited. A quarrel began between two teenagers, one of whom appealed to the hostess (appellant) to make the other 'leave him alone.' She was engaged in trying to pacify the two boys when Williams broke in, although he was in no way involved, and loudly challenged appellant to take the matter up with him. He told her 'not to talk to a minor but to talk to a man' or 'if you are going to mess with anybody, mess with a man.' Appellant told him to leave her home, he refused and challenged her ability to put him out, but some of the other people there pushed him out the front door onto the porch. According to appellant's testimony, Williams had threatened her and had drawn a knife with which he inflicted several cuts, more or less superficial, upon her arm. In any event, she seized a pistol which she kept under her bed and shot decedent in the chest, killing him. She testified that when she fired, Williams was attempting to reenter the door and still had the knife with which he then succeeded in inflicting a small cut on her face. There is evidence suggesting that Williams neither cut appellant, nor had a knife, and that he was outside the door when shot. After the shooting, the officer called by appellant found Williams' body off of the front porch on the ground and an open knife lying by his hand. No one saw the actual shooting of Williams except appellant. However, testimony in the record by some of the persons present at the party tended to show that Williams did not have a knife and that appellant was not cut by him, these witnesses having been there and not having seen the knife or the cuts. Moreover, the evidence is sufficient to raise a factual question as to whether Williams was shot just inside the door, in the door or outside of the door, as well as to whether he was engaged in actually trying to reenter when shot. It is argued on behalf of appellant that she was entitled to an instruction directing the jury to return a verdict of not guilty under the rule announced in Westbrook v. State, 202 Miss. 426, 432, 32 So.2d 251, 252 (1947). In Westbrook the Court said:

It has been firmly established by a long line of decisions in this state, of which Weathersby v. State, 165 Miss. 207, 147 So. 481, is typical, that where the defendant is the only surviving witness to a homicide his version of what occurred must, if reasonable, be accepted as true unless substantially contradicted in material particulars by the physical facts or by the facts of common knowledge, and that it is not enough to contradict that version in mere matters of detail which do not to the controlling substance.

We think the testimony for the State, while essentially negative in character, was sufficient to withstand appellant's motion for a directed verdict of not guilty.

However, upon the whole record we are forced to conclude that the ends of justice will be better served by a remand of the case for a new trial. In this connection we have particularly noted the following undeniable circumstances:

(1) The homicide occurred at appellant's home into which Williams had come as an uninvited intruder.

(2) Williams became a trespasser (if not already a trespasser) when appellant ordered him to leave her home, he refused and had to be pushed out the door.

(3) Williams was a man, well built and strong, and appellant a woman.

(4) It was not unlawful for appellant to have or keep in her home the weapon used.

(5) Williams forced himself into the discussion between appellant and the two boys and was the initiator and aggressor in the fatal difficulty with appellant.

(6) The entire affair was one episodic, continuous and uninterrupted quarrel, which had been begun by Williams and culminated in the fatal shooting.

(7) The fatal bullet struck Williams squarely in the chest, indicating that the two were confronting each other when it was fired.

Several sections in the Mississippi Code 1942 Annotated (1956) seem to be relevant to a discussion of the question under review.

Section 2221 reduces to manslaughter a homicide which at common law would have been murder when the person killed '* * * is engaged in the perpetration of any * * * misdemeanor * * * or in the attempt to commit any * * * misdemeanor * * *.'

Section 2218 provides:

The killing of a human being by the act, procurement, or omission of another shall be justifiable in the following cases:

(e) When committed by any person in resisting any attempt unlawfully to kill such person or to commit any felony upon him, or upon or in any dwelling-house in which such person shall be * * *.

Section 2224 defines as manslaughter a...