Jones v. State

Citation170 Miss. 581,155 So. 430
Decision Date11 June 1934
Docket Number31018
CourtMississippi Supreme Court
PartiesJONES v. STATE

(In Banc.)

HOMICIDE.

Evidence of killing of constable, when constable, armed with void search warrant, after search had been made, forcibly entered defendant's house without permission and without stating his purpose, held not to authorize conviction for crime higher than manslaughter (Code 1930, sections 1228, 988 clause (e), 991, 995, 1227).

SMITH C. J., dissenting.

APPEAL from circuit court of Benton county HON. THOS. E. PEGRAM Judge.

Robert Jones was convicted of murder, and he appeals. Reversed and cause remanded.

Reversed and remanded.

Lester G. Fant, Jr., of Holly Springs, for appellant.

Where a homicide is committed with a deadly weapon, if the defendant gives a reasonable explanation of it, which is uncontradicted, he must be believed, and is entitled to a peremptory instruction by the court.

Hawthorne v. State, 58 Miss. 778; Hunt v. State, 108 Miss. 588, 67 So. 57; Houston v. State, 117 Miss. 311, 78 So. 182; Patty v. State, 126 Miss. 94, 88 So. 498; Byrd v. State, 154 Miss. 742, 123 So. 867; Gray v. State, 158 Miss. 266, 130 So. 150.

The gravest crime that the defendant could be guilty of is manslaughter, even if one be allowed to infer that the defendant fired his, gun intentionally and that he knew the identity of the deceased at the time.

Bowen v. State, 164 Miss. 225, 144 So. 230; Long v. State, 52 Miss. 23; Section 995, Code of 1930; Cryer v. State, 71 Miss. 467; Robertson v. State, 153 Miss. 770, 121 So. 492; Birdman v. State, 160 Miss. 65, 133 So. 208; Williams v. State, 120 Miss. 604, 122 Miss. 151; Williams v. State, 127 Miss. 851, 90 So. 705.

Oscar F. Street, of Ripley, for appellant.

The court should have granted the instruction asked for by the defendant, directing the jury that under the tesimony they could not find the defendant guilty of any greater crime than manslaughter.

The killing, in order to be murder, must be with a deliberate design to effect the death of the person killed or some human being.

Hawthorne v. State, 58 Miss. 778; Jackson v. State, 163 Miss. 235.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

In passing on the matter of whether a peremptory instruction is proper, or in determining whether a conviction shall be reversed for insufficiency of the evidence to sustain it, the trial court and this court are required to consider most favorable to the state all the evidence that tends to prove the guilt of an accused. This is more or less elementary in its nature.

Redwine v. State, 149 Miss. 741, 115 So. 889; Pruitt v. State, 163 Miss. 235, 140 So. 683; Boutwell v. State, 165 Miss. 16, 143 So. 479.

So far as this record is concerned, the defendant is the only eyewitness. His version of the killing, however, is, as I see it, most unreasonable.

This court is bound to accept the defendant's version only if the record of the trial demonstrates that it is a reasonable one.

I submit that the state has shown a cold blooded assassination, and it was proper for the court to refuse the requested instruction that the jury could convict of no greater crime than manslaughter, and it was, by the same token, proper to refuse the peremptory instruction which was requested.

Argued orally by Lester G. Fant, Jr., for appellant, and by W. D Conn, Jr., for the state.

Ethridge, J., Smith, C. J., dissenting.

OPINION

Ethridge, J.

The appellant, Robert Jones, was tried and convicted in the circuit court of Benton county, 'Mississippi, for the murder of Mark Mason, a constable, on September 4, 1933, and was sentenced to suffer the death penalty. It appears that, on complaint of one Walker, a justice of the peace gave Mark Mason, a constable, a purported search warrant for the premises of Frank Jones, the father of Robert Jones, at whose house the appellant lived, and that, although the search warrant was void, the search was made and no goods were found. Mark Mason was accompanied by another person, the son of the justice of the peace, and, after making the search and finding nothing, they arrested two young boys, brothers of the appellant, and took them from the house, continuing the search for the goods, using a flash-light, but found nothing but some tracks to which the boys' feet corresponded. At a bridge across a little stream between the Jones and the Walker residences, the deceased stated, in effect, that this was a good place for him to tie some rocks around the necks of the young Jones negroes and throw them into the creek, whereupon the appellant, who was present, having accompanied the constable and his brothers, remarked, "No sir, they are my brothers," and the constable ordered the appellant to go back home, which the appellant did. After the appellant left the constable, Mark Mason, and the boys, a pistol shot was heard, and Mark Mason stated to McKenzie, the son of the justice of the peace, to stay with the boys and he would go and investigate. When he had been gone a short time, a shotgun report was heard, and the body of Mark Mason was found at the home of Frank Jones with his feet in the doorway, and his body on the ground, a shotgun wound having entered the body of Mark Mason just below the collar bone and ranged inward, shattering his spinal column. When the justice of the peace, McKenzie, and his son reached the home of Frank Jones, the appellant had left, and he was located some twenty-five miles distant at the home of Charlie Thomas by the sheriff and deputies. The sheriff called for them to come out, and Charlie Thomas and the appellant did so. The sheriff asked who killed Mark Mason, and the appellant replied that he did. When asked by the sheriff why he killed him, the appellant answered that he did not intend to kill him, that Mason was coming up to the door, and he intended to scare him by shooting over his head; and the sheriff said that he aimed "mighty low" to scare a man with that gun. The appellant said that, when Mark Mason told him to leave, he started walking to his home, stumbled and fell, and a small pistol in his watch pocket fell on the ground and was discharged; that he went on to his home and prepared for bed, and in a few minutes he heard a knock on the door, asked who it was, and received no answer, but some person began to break the door in, and that he reached over his bed for a shotgun on a rack, saw the door forced open and a man standing in it, but did not know whether he was a white man or a negro, and, as he reached for the hammer of the gun, it was accidentally discharged.

After his arrest, he was carried to the jail, and was instructed by the sheriff, before making any statements, that he did not have to make any statements, but, if he did, they would be used against him. The appellant started a conversation with a deputy sheriff who told him that he did not have to talk, but, if he did, his statements would be used against him, and the appellant said that was all right, that Charlie Thomas had nothing to do with it, that he (appellant) killed Mark Mason.

There was no evidence, other than that of Robert Jones, as to what took place at the residence of Frank Jones where the appellant lived, no other person was introduced as to what happened, and it does not appear from the evidence who else was present at the killing, whether Frank Jones and his wife, or any other person, were in the house at that time. Frank Jones was introduced and testified as to what happened at the time of the search, saying that appellant came in the room with a pistol, and he told him (the appellant) to go back, as that was the law.

Robert Jones testified in his own behalf that the deceased broke open the door, and that, when he reached for the gun, it went off and killed the deceased, but that he did not intend that it should; that the deceased never stated what was his purpose; that he (appellant) had gone to bed and was barefoot, but that after the shooting he put on his shoes, threw the gun down, and ran.

When the body of the deceased was found, the void search warrant was in his pocket, but, as stated, the search under this void warrant had already been made, and nothing had been found on the premises.

There was no warrant of any kind for the arrest of the appellant and nothing is shown in the evidence as to why the deceased broke the door open and what his purpose was. The appellant had not been shown to have committed any felony, and no misdemeanor was committed in the...

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10 cases
  • Franklin v. State
    • United States
    • Mississippi Supreme Court
    • June 10, 1940
    ... ... as true, which we say is not, and the further fact of the ... officers having been engaged in attempting to make an ... unlawful search that the defendants herein would be guilty of ... no crime greater than manslaughter ... Walker v. State, 189 So. 804; Jones v ... State, 170 Miss. 581, 155 So. 430; Bergman v ... State, 133 So. 208; Fletcher v. State, 129 ... Miss. 207, 91 So. 338; Stenson v. State, 80 So. 506; ... Strickland v. State, 81 Miss. 134, 32 So. 921; ... Mobley v. State, 68 Miss. 605, 9 So. 445; Cryer ... v. State, 71 ... ...
  • Mease v. State, DP-84
    • United States
    • Mississippi Supreme Court
    • February 1, 1989
    ...officer can be manslaughter." Lanier, 450 So.2d at 79; see Williams v. State, 122 Miss. 151, 84 So. 8, 14 (1919); Jones v. State, 170 Miss. 581, 587, 155 So. 430 (1934); Coleman v. State, 218 Miss. 246, 67 So.2d 304, 305 Today's issue has been addressed in Spencer v. State, 348 So.2d 1030 (......
  • Lanier v. State
    • United States
    • Mississippi Supreme Court
    • April 11, 1984
    ... ...         See also Jones v. State, 358 So.2d 414 (Miss.1978) ...         In Rome v. State, 348 So.2d 1026, 1027 (Miss.1977), we stated that "probable cause means more than bare suspicion, but does not necessarily require sufficient evidence to support a criminal conviction." To the same effect see Powe v ... ...
  • Prine v. State
    • United States
    • Mississippi Supreme Court
    • February 5, 1940
    ...a reasonable doubt. Newsom v. State, 107 Ala. 133, 18 So. 206; Lewis v. State, 93 Miss. 697, 47 So. 467. In the case of Jones v. State, 170 Miss. 581, 155 So. 430, our court quotes from Ayers v. State, 60 Miss. as follows: "It was held that the owner of property, on his own premises, has th......
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