Kinkead v. State, 43958
| Decision Date | 17 October 1966 |
| Docket Number | No. 43958,43958 |
| Citation | 190 So.2d 838 |
| Parties | Conway KINKEAD v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Albert V. Miller, Rolling Fork, for appellant.
Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
The appellant, Conway Kinkead, was indicted for the murder of Mose Stewart by the grand jury of Issaquena County, Mississippi. He was convicted of the charge of manslaughter, and sentenced to serve a term of five years in the State Penitentiary. After appellant's motion for a new trial was overruled, he appealed to this Court from the judgment of the trial court.
The record reveals that in the late afternoon of July 18, 1965, about dark, Floyd Johnson, deputy sheriff and game warden, was sitting under a tree near his home. He lived about a quarter of a mile from the home of appellant. He heard a noise in the direction of the home of appellant. He said 'It sounded like fussing and squabbling, screaming and hollering to take place up there.' He heard a door slam and a gun fire. He went into the house and ate supper, and then went up the road toward the home of appellant. He met Mrs. Kinkead, who insisted that he come to her house, that 'Kinkead has done killed a man,' and said 'I don't know whether it is Mose or not.' The officer went into the house and found the deceased lying near the back door. It was apparent to the witness that he had been killed by a gunshot wound. The witness thought it was about five minutes to eight o'clock at that time. 'It was getting dusk dark, good dusk dark * * * when I got there.' He testified that the appellant told him The witness said that "Miss Beulah' spoke up at that time and says
The proof shows that the one-room house in which the appellant and his wife lived had a wooden back door and an outer screen door. The wooden door opened into the room, and the screen door opened to the outside. The screen had a hole in it, with powder burns around the hole. The screen door had a wire hook or fastener. The fastener had been broken and the screen door was fastened with a wire hook. There was testimony that the grass was mashed down in the yard, near where the deceased's cap was found. There were some full and empty beer cans found in front of the house. The State offered testimony to show that several days before deceased was shot, he had some money, and at the time of his death, he did not have any money on his person.
The appellant's wife was in the hospital at the time of the trial and did not testify. The defendant testified that on the night in question, they went to bed between seven and eight o'clock; that after they had gone to bed, someone came to the back door and without warning began to violently pull, jerk and beat the screen door. The screen door gave way, and the wooden door was thrown open. Appellant called out several times and warned that he would shoot, but he received no reply. He then picked up his shotgun, which was at the head of the bed, and fired toward the door. The deceased was found within a few feet of the back door, near a hoe that had blood on the handle. The appellant and deceased had been close friends for many years.
The appellant contends that the court committed reversible error in not granting a peremptory instruction to find him not guilty of murder. This argument is based upon the testimony showing that the appellant and deceased had been good friends, and that the State failed to show that he was angry at deceased or had any malice toward him at the time he fired the fatal shot.
This assignment of error is not valid because the appellant was not convicted of murder; he was convicted of manslaughter, a crime that does not require proof of malice or premeditated design to kill. Miss.Code Ann. §§ 2220, 2224, 2225 (1956).
The appellant argues that the State did not prove the elements of manslaughter because 'there was no proof to show passion or provocation.' It is said: 'There was no quarrel, no fuss, or difficulty between the appellant and the deceased.' This argument overlooks the testimony of Floyd Johnson, who heard 'a fuss,' 'a door slam,' and a 'gun fire' over at the home of the appellant in the late afternoon. Later, when this witness arrived at the scene, the defendant told him 'I had to do it * * * he was fixing to jump on me.' The appellant's wife said: 'No, that ain't the way it was * * * you didn't know * * * who you...
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Dunn v. Jack Walker's Audio Visual Center
...the lesser offense of manslaughter cures the trial court's error in submitting the murder charge to the jury. See, e.g., Kinkead v. State, 190 So.2d 838, 839 (Miss.1966); Crockerham v. State, 202 Miss. 25, 31-32, 30 So.2d 417, 419 ...
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Towner v. State
...lesser offense of manslaughter cures the trial court's error in submitting the murder charge to the jury. See, e.g., Kinkead v. State, 190 So.2d 838, 839 (Miss. 1966); Crockerham v. State, 202 Miss. 25, 31-32, 30 So.2d 417, 419 (1947). With this well-established rule of law noted, we declin......
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Gordon v. State, 46636
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