Holmes v. State

• Decision Date: 22 October 1928
• Docket Number: 27131
• Citation: 118 So. 431,151 Miss. 702
• Court: Mississippi Supreme Court
• Parties: HOLMES v. STATE. [*]

118 So. 431

151 Miss. 702

HOLMES v. STATE. ^[*]

No. 27131

Supreme Court of Mississippi

October 22, 1928

Division B

Suggestion of Error Overruled Nov. 5, 1928.

APPEAL from circuit court of Walthall county, HON E. J. SIMMONS, Judge.

Earl Holmes was convicted of manslaughter, and he appeals. Affirmed.

Judgment affirmed.

Price & Price and J. M. Alford, for appellant.

It was a question for the jury and for the jury only, as to whether the killing was done in malice or in the heat of passion, and not in necessary self defense. This seems to be the doctrine held in Gamblin v. State, 29 So. 764. Silva v. State, 93 Miss. 635. In Elmore v. State, 79 Miss. 10, this court held, that an instruction in a murder case, which assumes as true, matters which are controverted by the evidence is erroneous. Fore v. State, 75 Miss. 227; See Dixon v. State, 104 Miss. 410; Potter v. State, 102 Am. St Rep. 198; Kendricks v. State, 55 Miss. 436; Brown v. State, 78 Miss. 637; Johnson v. State, 90 Miss. 317.

H. V. Wall, and J. L. Byrd, Assistant Attorney-General, for the state.

Counsel complains about the refusal of instruction No. 7 on page 13, R., and refers the court to the case of Dixon v. The State, 104 Miss. 410, for authority. We contend that the Dixon case does not justify the giving of this instruction. In that case, the defendant fired his pistol into the ground and the bullet struck a tin can from which it glanced and struck a bystander, and in that state of case the court held that he would not be guilty of manslaughter unless the death of the deceased was the natural and necessary consequence of his act. In the Dixon case the court held that if he shot his pistol down on the ground where there was no human being and it struck some metallic substance and glanced off and killed some one, that was not necessarily the natural and necessary consequence. Therefore the instruction in the Dixon case was proper, but in the case at bar the defendant had his pistol out and deliberately entered into a tussle with his brother when there were human beings standing nearby and he cannot take advantage of his own wrong. If he let the pistol go off and kill some one, he is guilty of manslaughter, even though there was no malice. We contend that the evidence in this case justifies the court in refusing the instruction above referred to. But if we are in error about this, it is our contention that reading all of the instructions together, the jury was fairly instructed as to the law and the verdict in the case was merciful to the defendant.

Argued orally by J. H. Price, for appellant, and Hugh V. Wall and J. L. Byrd, Assistant Attorney-General, for appellee.

OPINION

ETHRIDGE, P. J.

The appellant was indicted at the February, 1928, term of the circuit court on a charge of murdering one Lemmie Ginn, convicted of manslaughter, and sentenced to a term of fifteen years in the penitentiary.

It appears that the deceased, with a number of other boys, went to a swimming-hole in Bogue Chitto River near Stallings Bridge, in Walthall county, on the day of the killing; that some time after the deceased and the other boys reached the swimming-hole, appellant and his brother, Melton Holmes came along the road in a buggy, and stopped at the swimming-hole; that appellant had been drinking, and had fired his pistol several times along the highway; that shortly before the killing, appellant endeavored to provoke a difficulty with a party who happened to be passing along the road and insisted upon following him, stating that he desired to kill him, but he was dissuaded from doing so by his brother, Melton Holmes. It appears that the matter leading up to the shooting was, the appellant had gotten into a buggy with another party and was driving up the road with him when they passed Lemmie Ginn and Melton Holmes, who were sitting on the side of the road; that appellant heard some one cursing and assumed that it was Lemmie Ginn cursing his brother, Melton Holmes, and got out of the buggy in which he was riding and went back to where the two boys, Lemmie Ginn and Melton Holmes, were sitting, and, addressing himself to Lemmie Ginn, said: "Nobody can call my brother a son of a bitch;" whereupon his brother, Melton Holmes, stated that the deceased had not cursed him, but that he (Melton Holmes) had cursed Lemmie Ginn; and that Lemmie Ginn also made the statement that he had not cursed Melton Holmes; that thereupon, having his pistol in his hand at the time, appellant stated that he believed he would shoot it off, and Lemmie Ginn said let him shoot, that he liked to hear it pop, but that Melton Holmes, the brother of appellant, told him not to shoot as they were too near a house belonging to a person named in the evidence; that the appellant started to shoot, whereupon Melton Holmes undertook to wrest the pistol from him, and that they struggled over the possession of the pistol.

According to some of the evidence, the shot which killed Lemmie Ginn was fired during this struggle, and according to other evidence, the shot was fired after the appellant had gotten loose from Melton Holmes.

Lemmie Ginn was taken first to his uncle's home near by, and from thence to a hospital at Tylertown where he lived a few days, and died from the effects of the wound.

According to the evidence of the appellant, when the pistol fired appellant exclaimed, "Lemmie, my God, I wouldn't have had that happen for anything in the world!" and that the deceased responded, "I know you wouldn't, but get me a doctor quick."

There was other testimony to the effect that, after the shooting another party came to where these persons were and asked about the shooting, and that Lemmie Ginn stated to him that the appellant shot him for nothing; that said statement was made in the presence of the appellant, and that the appellant made no response thereto at the time.

One witness for the state testified directly that the appellant was some twelve or fifteen feet away from the boy Lemmie Ginn, when the shot was fired, and that nobody had hold of him at that time.

As stated above, there was conflict between the witnesses for the state, and the witnesses for the defendant as to how the shooting occurred. The state offered a dying declaration to the same effect--that he was shot by the appellant "for nothing." But the court excluded the dying declaration, and it was not admitted before the jury. After the shooting the appellant helped to carry the wounded boy to the home of his uncle, and then went some little distance and spent the night with a relative. He was arrested the next morning.

It is first complained, on appeal, that the court erred in granting the following instruction for the state:

"The court instructs the jury for the state that if you believe from all the evidence in this case beyond a reasonable doubt that the defendant deliberately shot and killed the deceased with a deadly weapon, to-wit, a pistol, malice may be inferred."

For the defendant the court gave instruction No. 7, which reads as follows:

"The court instructs the jury for the defendant, that if you believe from the evidence, that the two boys were tussling over a pistol and in tussling over the pistol the pistol was fired without knowledge or without any intent to kill any person, but purely as an accident, then it is the sworn duty of the jury to acquit, and if you have a reasonable doubt about it you should acquit."

We do not think it was reversible error to give the instruction for the state, above set out, that "malice may be inferred" if the jury believe the defendant deliberately shot and killed the deceased. It must be remembered that the defense here set up was that the shooting was an accident. It is not a question where the defense is self-defense and the shooting may have been done deliberately to prevent the person shot from inflicting great bodily harm or death, upon the person doing the shooting. It is true that where there is no element of veracity to be decided, and determine where the real facts appear, that presumption disappears; but as applied to the facts in this case, if the shooting was deliberate, then it was unlawful, and a presumption of malice would attend the shooting, and the shooting would be a malicious shooting. There was no reversible...