Johnson v. State, 39412

• Decision Date: 14 February 1955
• Docket Number: No. 39412,39412
• Citation: 77 So.2d 824,223 Miss. 167
• Parties: James Dewey (J. D.) JOHNSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 824

77 So.2d 824

223 Miss. 167

James Dewey (J. D.) JOHNSON v. STATE of Mississippi.

No. 39412.

Supreme Court of Mississippi.

Feb. 14, 1955.

Wingo & Finch, Hattiesburg, H. C. Monynihan, Laurel, for appellant.

J. P. Coleman, Atty. Gen., by Joe T. Patterson, Asst. Atty. Gen., for appellee.

GILLESPIE, Justice.

Appellant was convicted of murder and the death penalty was imposed.

Our disposition of the case obviates a detailed statement of the facts. On the evening of February 13, 1954, Ard D. Rushton and a young lady companion were sitting in a parked truck on a side road near the City of Laurel. Appellant, with the obvious intention to commit robbery, approached the truck and fired two 22-rifle shots ahead of the truck and three into the truck. One shot struck Rushton in the head, killing him. Appellant opened the truck door, then became frightened and fled. Appellant drove to his father-in-law's home in Covington County, where he first hid the gun. Later, he took the gun into the woods and tried to destroy it with an axe. Finally, he burned the stock and buried the remaining metal parts of the gun and covered the place with leaves and brush. After his arrest, appellant made a full confession and showed the officers where to find the buried gun. From shell cases picked up at the scene of the crime, and comparing them with shell cases fired from another similar gun to which had been affixed the extractor, ejector, breach, and firing pin from the buried weapon, it was shown that the buried gun was the one used in the killing of Rushton. This comparison was made by a qualified firearms expert. Other physical evidence proved conclusively that appellant killed Rushton. Appellant's only defense was insanity, and he did not testify at the trial.

The proof on the question of insanity was made by members of appellant's family, but was corroborated to a considerable extent by disinterested witnesses; and it was sufficient to show, had the jury believed it, that appellant's grandfather died in an insane asylum, and an uncle is now in an insane asylum; that appellant never passed from the first grade in school, and from a very early age had been mentally deficient. Various acts were testified about, indicating appellant had a low mentality, and on numerous occasions acted in such ways that the jury might have been justified in believing him insane and did not know the difference between moral right and wrong.

The State's proof on the question of insanity was largely that of the officers who had custody of the appellant for a period of about three weeks prior to the date of the trial.

Appellant assigns as error the granting of the following instruction 'The court instructs the jury for the State that the deliberate use of a deadly weapon in any difficulty, not in necessary self defense, is in law, evidence of malice.' The granting of this instruction was error in this case. We think the circumstances attending the shooting of Rushton by appellant is fully disclosed by the evidence. Instructions similar to the one here under consideration have been considered by this Court in many cases, beginning with McDaniel v. State, 8 Smedes & M. 401, 16 Miss. 401, decided over a hundred years ago. In that case, it was said: 'When the fact of the killing, with all its attendant circumstances, is clearly proved, and the testimony either shows express malice, or that there was no malice at all, there is no room for presumption. But in cases where the killing is proved, and no accompanying circumstances appear in the evidence, the law presumes the killing was done maliciously * * * as if a deadly weapon were used, the law presumes malice.' This Court has repeatedly held that where the facts attending the use of a deadly weapon are...