Holliday v. State, 53355
Decision Date | 11 August 1982 |
Docket Number | No. 53355,53355 |
Citation | 418 So.2d 69 |
Court | Mississippi Supreme Court |
Parties | Winford Dee HOLLIDAY, Jr. v. STATE of Mississippi. |
Farese, Farese & Farese, John B. Farese, Ashland, for appellant.
Bill Allain, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
Before WALKER, P. J., and BROOM and ROY NOBLE LEE, JJ.
This is an appeal from the Circuit Court of Tippah County, Mississippi, wherein the appellant was indicted for murder but convicted of manslaughter and sentenced to a term of eighteen years in the Mississippi Department of Corrections, with six years suspended. From this conviction and sentence, he appeals. We affirm.
On April 13, 1980, the appellant, Dee Holliday, and one Jerry Akins passed the time drinking beer they had purchased earlier in the afternoon in Tennessee.
While sitting in appellant's pickup, Jerry Mohundro approached and asked if they cared to share his gin. Mohundro also had a premixed canned alcoholic beverage he was drinking. Akins and appellant turned down the gin offer as they continued to drink their beer. Mohundro joined them in the cab of the pickup. Shortly thereafter the three were joined by Mickey Raul. As the truck became crowded all four went into the kitchen of appellant's home where they sat at the table drinking their libations. Approximately one hour later, Raul left.
Mohundro and appellant discussed the possible sale of appellant's car. According to Akins both kind of got to arguing about it. Akins left the kitchen for a short period of time. After he came back in and sat at the table Mohundro spit on the floor but denied doing it upon being questioned.
Appellant asked Mohundro to leave. Both Akins and the appellant testified that Mohundro threatened Holliday stating, "I'll be laying for you, and I'll get you." Again appellant asked Mohundro to leave to which he answered he would leave when he got ready to. According to appellant Mohundro's exact words were "I'll leave when I get damn good and ready too." From this point the testimony as to Mohundro's actions is conflicting.
According to Holliday, Mohundro told him "... I know you've got that little gun, so just make your move." Again appellant asked Mohundro to leave. Mohundro stated, "I'll just kill you now." Appellant testified that Mohundro Mohundro was shot at least six times.
Akins testified that Mohundro got up and jumped back from the table and was shot by appellant. He was completely up when the shots rang out. Akins did not notice the position of Mohundro's hands when he jumped back from the table nor did he see Mohundro with any sort of weapon. No weapon of Mohundro's was found at the scene.
E. B. Jones, an emergency medical technician, responded to a 10:30 p. m. call concerning the shooting. He found Mohundro in the kitchen of Holliday's residence between the table and wall lying on his side. Holliday admitted shooting Mohundro. Jones placed Mohundro in the ambulance and transported him to the hospital. Sheriff Crum of Tippah County arrived at the scene shortly after Mohundro's body was moved from the house. Holliday told the sheriff he shot Mohundro and handed him a .25 automatic pistol containing two live rounds.
Dr. Benton M. Hilburn, a practicing surgeon, and Dr. John Michael Hoya, a practicing physician, treated Mohundro at the North Mississippi Medical Center. Dr. Hilburn testified he believed there were six gunshot wounds on Mohundro's body and Dr. Hoya drew a diagram for the jury locating seven gunshot wounds. Mohundro died several days after being admitted to the hospital as a result of "an overwhelming infection secondary to his injuries."
The appellant was indicted for the murder of Jerry Mohundro. Following a trial by jury, he was convicted of manslaughter and sentenced to a term of eighteen years in the Mississippi Department of Corrections, with six years suspended.
The appellant assigns the following as error:
I.
The lower court erred in not directing a verdict of acquittal for appellant at the conclusion of all of the evidence, there being no competent evidence to contradict appellant's version of the homicide which made out a clear case of self-defense.
Upon conclusion of trial, the appellant moved for a directed verdict "based on the fact the State has not presented evidence establishing a prima facia [sic] case against the defendant..." and also made a request for a peremptory instruction. Both requests were denied.
The case clearly presents an issue for the jury's determination and their verdict is supported by the evidence. Cutrer v. State, 410 So.2d 1308 (Miss.1982).
II.
The lower court erred in not directing a verdict of acquittal at the close of all of the evidence in this case because the state failed to prove corpus delicti.
Dr. Benton M. Hilburn testified as to the cause of Mohundro's death as follows:
Q. Who declared him dead?
A. I did.
Q. And what was the cause of death of Jerry Mahundra? [sic]
A. We felt the cause of death was overwhelming infection secondary to his injuries.
Q. The injuries being ...
A. From the wounds, the gunshot wounds.
Q. Doctor, in fact, what you're saying is the cause of death was gunshot wounds?
A. Yes.
Mohundro died in the hospital several days after his admission for treatment of his gunshot wounds and the jury was justified in determining the gunshot wounds were a substantial contributing cause of death. In Schroer v. State, 250 Miss. 84, 160 So.2d 681 (1964), we stated:
The unlawful act or omission of accused need not be the sole cause of death. The test of responsibility is whether the act of accused contributed to the death, and, if it did, he is not relieved of responsibility by the fact that other causes also contributed. Moreover, responsibility also attaches where the injury materially accelerates the death, although the death is proximately occasioned by a preexisting cause. 40 C.J.S., Homicide, Sec. 11. (250 Miss. at 91, 160 So.2d 681).
III.
The lower court erred in not sustaining appellant's motion for a new trial because the conviction for manslaughter was against the overwhelming weight of the evidence.
The deceased and appellant both had been drinking on the day of the shooting incident. An argument ensued while both were seated around appellant's kitchen table. The deceased aggravated appellant by spitting on his floor and denying it. Upon being asked to leave appellant's home, the deceased became belligerent and refused to leave. When he arose from the table Mohundro was shot at least six times. No weapon was found on or near Mohundro's body. The testimony was conflicting as to whether or not Mohundro lunged toward the appellant as if to cause him great bodily harm.
In Stennis v. State, 234 So.2d 611 (Miss.1970), we stated:
Furthermore, we have held that a person may not use more force than reasonably appears necessary to save his life or protect himself from great bodily harm; that where a person repels an assault with a deadly weapon, he acts at his own peril and the question of whether he was justified in using the weapon is for determination by a jury unless there is no reasonable inference in the evidence except that the use of the deadly weapon appeared necessary to protect the person from death or great bodily harm at the hands of his assailant. Blackwell v. State, 44 So.2d 409 (Miss.1950); Howard v. State, 18 So.2d 148 (Miss.1944); Bangren v. State, 196 Miss. 887, 17 So.2d 599 (1944). (234 So.2d at 614).
The appellant asserts the facts in this matter make out a clear case of...
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Thomas v. State
...shot six times and died in the hospital "several days after his admission for treatment of his gunshot wounds...." Holliday v. State , 418 So.2d 69, 70–71 (Miss. 1982). The decedent's treating surgeon testified that "the cause of death was overwhelming infection secondary to his injuries." ......
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