Kelly v. State
| Decision Date | 17 February 1930 |
| Docket Number | 28246 |
| Citation | 156 Miss. 535,126 So. 194 |
| Court | Mississippi Supreme Court |
| Parties | KELLY v. STATE |
1 HOMICIDE. Threats by decedent communicated to defendant are inadmissible in homicide case, if there was no overt act at time of killing.
In a prosecution for homicide, a statement made by the deceased prior to the time of the killing in the nature of a threat although communicated to the defendant, will not be admissible if there was no overt act at the time of the killing.
2 HOMICIDE. Officer is unauthorized to use firearms to compel misdemeanor convict to return to service or obey officer's order.
An officer has no right to resort to the use of firearms to compel a convict of a misdemeanor to return to service or to obey orders of the officer. Brown v. Weaver, 76 Miss. 7, 23 So. 388, 42 L. R. A. 423, 71 Am. St. Rep. 512, cited.
APPEAL from circuit court of Wayne county HON. J. D. FATHEREE, Judge.
Mack Kelly was convicted of murder, and he appeals. Affirmed.
Judgment affirmed.
A. G. Busby, of Waynesboro, for appellant.
If appellant believed that he was in danger, or if he killed the deceased while he was committing a misdemeanor or if he killed him in the heat of passion then he was only guilty of manslaughter.
Williams v. State, 90 So. 705; Long v. State, 52 Miss. 23; Williams v. State, 82 So. 318; Williams v. State, 84 So. 8; Hemingway's Code 1917, sec. 967; Hemingway's Code 1917, sec. 963; Hemingway's Code 1917, sec. 966 and 968; Hill v. State, 52 So. 630; McGee v. State, 110 So. 500.
Threats made by the deceased should have been admitted.
Johnson v. State, 5 So. 95; Hambirche v. State, 103 So. 364; Leverette v. State, 73 So. 273; Hill v. State, 52 So. 630; Magee v. State, 110, So. 500; Johnson v. State, 5 So. 95; Boatwright v. State, 83 So. 311.
Forrest B. Jackson, Assistant Attorney-General, for appellee.
The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases: (a) when done with deliberate design to effect the death of the person killed, or of any human being.
Sec. 957, Hemingway's Code 1917.
It is not necessary to actually prove malice. But the use of a deadly weapon may be an inference from which the jury can conclude that malice was present.
Johnson v. State, 140 Miss. 889, 105 So. 742.
The party slaying cannot take shelter under it (the fact that the party killed is committing an unlawful act) if the jury should be of the opinion that there was actual malice. The killing must have occurred bona fide in the resistance to the unlawful act, or immediately after its defeat, and must have grown out of the commission, or the attempt to commit the act, and not out of any previous ill will nor any personal grudge then and there engendered.
Long v. State, 52 Miss. 23; Dye v. State, 127 Miss. 492, 90 So. 180.
Uncommunicated threats are not admissible in evidence.
Mabry v. State, 71 Miss. 716, 14 So. 267.
All instructions in the case should be read together and if when so read they state the law correctly there is no error.
Norris v. State, 143 Miss. 593, 108 So. 809; Pittman v. State, 147 Miss. 593, 113 So. 348.
Any error in the exclusion of evidence as to threats is cured when defendant is allowed to testify as to such threats. Powell v. State, 145 Miss. 252, 110 So. 115.
The appellant, Mack Kelly, was indicted, tried, and convicted of the murder of one Bud Bazor, and was sentenced to the penitentiary for his natural life, and appeals from said conviction here.
The appellant, Kelly, was an overseer of the county road convicts. Bud Bazor had been convicted of a misdemeanor and sentenced to imprisonment; first he had been sentenced to the county farm, but complained that he could not do the work there, because of an injury to his ankle which prevented him from doing plowing necessary to be done upon the farm. On his complaint he was carried to the county road crew and placed under charge of the overseer there. The appellant began his duties as convict overseer on Friday and the killing occurred on the Saturday afternoon following. On Saturday morning Kelly carried something to the county site and directed Bazor to unload the stuff from the truck, or to assist in doing so. Bazor refused and stated that he was going over to a barber shop and get shaved; he walked away, followed by Kelly, who endeavored to persuade Bazor to return to his duties. When he reached the railroad crossing at the county site, Kelly returned to the sheriff's office and stated to the sheriff what had happened, and asked instructions as what to do under the circumstances. The sheriff told him, in effect, "He is your prisoner and you will have to attend to that." Thereupon Kelly went to the barber shop where Bazor had gone; he found Bazor sitting in a chair awaiting his turn to be shaved. Kelly ordered Bazor to get up and go with him, and Bazor requested Kelly to wait awhile, that he was next, and would go with him when he got his shave. Kelly replied: "No, get up and go now." The evidence is a little conflicting as to what Bazor said. According to some of the state witnesses, he stated to Kelly, "Sit down and be peaceable, I will go with you when I get shaved;" and, according to other witnesses, he used vile language towards Kelly and said: "You are fixing to make me kick you out of here." Kelly made the third request, or demand, for Bazor to get up and return with him, and fired the shot which was fatal, Bazor dying almost immediately. According to some of the witnesses, Kelly stated, after the shot was fired, "You did not believe I would shoot you, did you?"
Kelly's statements were to the effect that just before the shot was fired Bazor reached his hand up under his coat, and he thought he was either going to draw a weapon or grab his (Kelly's) gun. The appellant was asked the following questions, and replied thereto as follows:
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