Kirk v. State
| Decision Date | 11 June 1928 |
| Docket Number | 27259 |
| Citation | 151 Miss. 225,117 So. 523 |
| Court | Mississippi Supreme Court |
| Parties | KIRK v. STATE. [*] |
(En Banc.)
1. HOMICIDE. Where fugitive from justice put tip hands on order but, instead of dropping pistol, shot and killed deputy sheriff, killing was murder.
Where a deputy sheriff and others acting under his order seek to arrest a party who is fleeing from justice, and order him to throw up his hands, which he does, with a pistol in one hand and the deputy sheriff orders him to drop the pistol, but instead of doing so, he fires and kills the deputy sheriff the defendant knowing that the deputy sheriff was an official seeking his arrest, the killing is murder.
2. CRIMINAI, LAW. On proof, without objection, that parties arresting defendant who killed' deputy sheriff had charge against him, court will presume officer had warrant.
Where a person on trial testifies that he thought it was an officer who arrested him, told him to throw up his hands, that he knew they were officers, and that he was fleeing from arrest, and where the officer who summoned the parties assisting him in making the arrest "states that he had a charge against the defendant, and such evidence is admitted without objection, and without proof that the officer did not have a warrant, the court will presume that the officer was acting lawfully, and had the necessary warrant for the arrest.
APPEAL from circuit court of Simpson county,HON. W. L. CRANFORD, Judge.
Green Kirk was convicted of murder, and he appeals. Affirmed.
Judgment affirmed.
D. B. Cooley, for appellant.
J. A. Lauderdale, Assistant Attorney-General, for the state.
The appellant, Green Kirk, was tried and convicted in the circuit court of Simpson county, on a charge of murder, and sentenced to death, from which he prosecutes an appeal to this court.
The shooting took place at the house of a negro man named Esther Jones. The deceased, S.E. Nunnery, a deputy sheriff, in company with two or three other men, went to Jones' house to look and search for the appellant. One of the party searching was stationed outside of the house, while Nunnery and the others went into the house to make a search for the appellant. Just before the search was finished, the appellant approached Jones' house from the outside, and was halted by the deputy stationed there, and ordered to throw up his hands, which appellant did, holding a pistol in upraised right hand. Nunnery and the other deputies in the meantime had made a thorough search of the house, and appeared on the back porch. Nunnery and another deputy threw flashlights upon the appellant while he was standing with his hands upraised, holding the pistol in one of them, according to the state's evidence. Nunnery approached the appellant, ordering him to drop his pistol. As appellant lowered his hands, he fired the pistol, striking Nunnery, who cried out that he was shot. Whereupon a general shooting took place, in which all the parties took part, except Jones. The appellant escaped from the scene of the shooting, but was wounded. He fired about six shots, using all the cartridges in his pistol. Within two days afterwards Nunnery died.
It appears from the state's evidence that Nunnery, the deputy sheriff, had asked the other men to go with him to search for the appellant, stating that he had a charge against the appellant, who was fleeing from the officers of the town of Magee. This was on the same evening the shooting took place. Nunnery's statement was admitted in evidence without objection.
The appellant testified in his own behalf, and stated that on the evening in question he was ordered to throw up his hands, and did so, but that the parties fired upon him while he had his hands up; that he did not have a pistol in his hand at the time, but, after the shooting commenced, he drew his pistol and fired, shooting as he retreated. He further testified that he had fled from arrest at Magee.
On cross-examination he was asked and answered questions as follows:
The appellant also testified that he was shot during the general shooting fray, and that he was arrested the following day, and that he used up all of his cartridges at the time.
The...
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