Herrin v. State

• Decision Date: 17 March 1947
• Docket Number: 36347.
• Citation: 201 Miss. 595,29 So.2d 452
• Court: Mississippi Supreme Court
• Parties: HERRIN v. STATE.

29 So.2d 452

201 Miss. 595

HERRIN v. STATE.

No. 36347.

Supreme Court of Mississippi

March 17, 1947

Livingston & Livingston and Martin & Farr all of Prentiss, for appellant.

Greek L. Rice, Atty. Gen., and Geo. H. Ethridge Asst. Atty. Gen., for appellee.

McGEHEE Justice.

The principal defense interposed by the appellant in this homicide case, wherein he was convicted of manslaughter, is that he was entitled to a directed verdict in his favor because of the fact that he was the only surviving eyewitness to the killing, and that his version of what occurred must be accepted as true, unless substantially contradicted in material particulars by the physical facts, or by the facts of common knowledge, citing Houston v. State, 117 Miss. 311, 78 So. 182, Patty v. State, 126 Miss 94, 88 So. 498, Wesley v. State, 153 Miss. 357, 120 So. 918, Walters v. State, 153 Miss. 709, 122 So. 189, Gray v. State, 158 Miss. 266, 130 So. 150, and Weathersby v. State, 165 Miss. 207, 147 So. 481.

In the application of the rule announced in the foregoing decisions there must, also, be kept in mind, as consistent therewith, the substance of the holding in the case of Grady v. State, 144 Miss. 778, 110 So. 225, to the effect that where a defendant is claiming self-defence, and is the only eyewitness to the homicide, the jury is not confined to his evidence as to the manner in which the homicide occurred, but may consider all of the facts and circumstances bearing thereon.

The testimony discloses that there was bad feeling between the accused and his victim, Bos Shows, prior to the occasion of the homicide; that they had each made serious threats against the life of the other; that there was a dispute as to whether the accused was getting some cross-ties on his own land, or on that which Bos Shows had in charge for Dr. Izard; that Bos Shows went to where the accused had cut some cross-ties and where he was sawing some wood, to again warn him to stay off the land; that before going to the scene of the killing the said Shows left his own shotgun leaning against a tree some little distance away; but that, according to the testimony of the accused, Shows had an axe in his hand when he arrived and renewed the controversy, and was advancing toward the accused, threatening to kill him; that Shows then threw down the axe, and continued to advance after the accused had taken a shotgun out of his wagon, and after he had warned him three times to stop; that the accused then shot him because of his failure to heed the warning; and that Shows at that time had his hands in his pockets, and was continuing to threaten the life of the accused.

Obviously, in considering the reasonableness of the defendant's version of what occurred, the jury was entitled to consider whether or not it was in accord with human experience and matters of common knowledge that Shows would have continued to advance toward a man who had procured a shotgun, and was holding it in his hand, after Shows had thrown down his axe and was advancing with his hands in his pockets, in which he had no weapon to protect himself.

Then too, some of the inquest jurors testified as to the position of some fresh shot signs on a very small hickory tree between the wagon and where Shows fell, which strongly indicated that the accused...