Jones v. State

• Citation: 91 Miss. 868,45 So. 145
• Court: United States State Supreme Court of Mississippi
• Decision Date: 13 January 1908
• Parties: DOUGLAS JONES v. STATE OF MISSISSIPPI

45 So. 145

91 Miss. 868

DOUGLAS JONES v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

January 13, 1908

October 1907

FROM the circuit court of Tunica county, HON. JEFFERSON F BARBOUR, special judge.

Jones appellant, a negro, was indicted and tried for murder convicted and sentenced to the penitentiary for life and appealed to the supreme court.

The deceased, Thomas Smith, a negro, was found dead, having been shot in the head.

The evidence relied upon as tending to show appellant's guilt was largely circumstantial; one witness, however, testified that shortly before the dead body was found, appellant rapidly passed him, having a gun in his hand, and requested him to tell the wife of the dead man that he had shot her husband. The appellant, testifying in his own defense, did not deny having killed the deceased, but claimed that he acted in self-defense, saying that the deceased had been for some time paying improper attention to appellant's wife in spite of his repeated remonstrance, and had threatened violence if appellant should interfere; that deceased had written to appellant's wife several times, and, on the night before the killing, appellant discovered that the deceased had written another and improper note to her; and this caused appellant, at his earliest opportunity the next day, to go and see the deceased in regard to the matter carrying the note with him, and when he showed it to deceased and upbraided him in a peaceable way touching it, deceased turned, cursed appellant, reached suddenly into his bosom as if for a deadly weapon; whereupon appellant, having his gun with him, shot deceased in self-defense, and subsequently voluntarily surrendered himself to the sheriff.

The testimony of the witness for the defendant, Miller Shelly, was practically the same as appellant's, as to the circumstances of the killing, he being an eyewitness to the tragedy. The state proved that the deceased was unable to read or write, but made no attempt to impeach the testimony of the witness, Miller Shelly, or of the appellant.

Reversed and remanded.

F. A. Montgomery, for appellant.

The evidence introduced by the state to convict appellant was purely circumstantial, and the trial court should have granted the peremptory instruction asked by him. In all of the testimony of the different witnesses introduced by the state there is nothing to show that appellant committed the homicide, except the testimony of one witness, Dallas Jones, to the effect that the appellant told him, shortly after the killing, to tell the wife of the deceased that he had killed her husband. Certainly this was insufficient to uphold a conviction of murder.

Even if a legal presumption of appellant's guilt existed as a result of the circumstantial evidence introduced by the state, such presumption could not stand before the direct testimony of Miller Shelly, a disinterested eyewitness of the homicide, whose testimony is in perfect harmony with the appellant's explanation of the homicide.

The whole cause of the difficulty which brought about the killing of the deceased was the continued licentious pursuit of appellant's wife by the deceased before his death, and in view of what the appellant and the witness, Miller Shelly, testified, the jury had no right to reject arbitrarily their testimony and draw deductions from supposed circumstances surrounding the case. The appellant is a competent witness in his own behalf, and the jury cannot capriciously and wantonly reject his testimony. Buckley v. State, 62 Miss. 705; Woods v. State, 67 Miss. 575; s.c., 7 So. 495.

If this were a civil suit, there would be no doubt about the proposition that the appellant would, under circumstances such as shown here, be entitled to a peremptory instruction in his favor. The courts have with entire unanimity held that where there is no material conflict in the testimony, the trial court must give a requested peremptory instruction. For instance, under the law of this state, if a domestic animal be found dead near a railroad track, and there be blood upon the track, and other marks showing that it had been killed by a running train, the railroad company will be liable for the killing, unless proof be made that the accident was unavoidable after the exercise of reasonable prudence on the part of the company's employes. Yet, this court has repeatedly held that, where an engineer of the railroad company has testified, in such a case, to a state of...