Lyon v. State

• Decision Date: 10 July 1922
• Docket Number: 22742
• Court: Mississippi Supreme Court
• Parties: LYON v. STATE

92 So. 582

129 Miss. 463

LYON v. STATE

No. 22742

Supreme Court of Mississippi

July 10, 1922

APPEAL from circuit court of Chickasaw county, HON. W. A. ROANE Judge.

George Lyon was convicted of murder, and he appeals. Affirmed.

Judgment affirmed.

J. H Ford for appellant.

We earnestly contend that the evidence did not support the verdict and that the peremptory instruction should have been in defendant's favor. The evidence for the prosecution fails to show that he was guilty. The evidence for both the state and the defendant shows that he was not guilty.

No one contended that appellant was present at the home of the deceased when Henry Gardner was doing the talking he did to deceased's people. He says he was not there, that he did not intend to go to deceased's when he left home. Tucker testified appellant did not go to the house. That testimony was admitted on the theory that there was a conspiracy formed beforehand to kill deceased, and the prosecution entirely destroyed that theory by its own evidence. It proved that appellant had nothing whatever to do with the difficulty knew nothing about its coming up, had no agreement to kill or hurt the deceased, and fled when it came up. Tucker told the witness, Tom Smith, just after the difficulty, that appellant did nothing but run.

So, the state having destroyed the conspiracy theory and appellant knowing nothing about the trouble until the fatal difficulty arose, the statements of Gardner at the home of deceased a little while before the difficulty in the absence of appellant, were purely hearsay as to appellant, and should not have been admitted against him. They were of the most hurtful character imaginable and were unquestionably very damaging to the cause of the defense.

The alleged statements of Dick Lyon and his acts in inducing deceased to go with him the night of the difficulty were not admissible against appellant from any view of the case. By this evidence the impression was sought to be made by the prosecution that Dick Lyon was also a party to the alleged conspiracy and that he played his part by getting deceased away from his home that night so that he could be killed by the other alleged conspirators.

The proof shows that deceased and Dick Lyon left deceased's home early in the night and went to Una to a supper where they remained until late in the night and that they came back to McCondy when Dick remained with a friend, and deceased proceeded on his way home and had traveled something like a mile from where he left Lyon when he met Tucker, appellant and others when the difficulty took place. Una was in the opposite direction from the home of deceased from where appellant and the other parties lived. It does seem that if he had been trying to get deceased away from his home so he could be killed by the other alleged conspirators, Dick Lyon would not have carried him off in a different direction from Tucker and others who as claimed, were to do the killing.

The prosecution did not offer that proof in the case of the other defendants, and evidently offered it in this case because it was in desperate straights for proof against appellant, and because Dick Lyon happened to be a brother of appellant. There is no proof whatever to connect Dick Lyon with the difficulty, and it is conceded that appellant was not present at any time that day before the killing, when the acts and conversations between Dick Lyon and deceased took place. The prosecution evidently considered this testimony very vital to their case against appellant from the struggle it made to get it before the jury. Unless the rule against the admission of hearsay evidence is to be entirely abrogated, the admission of this evidence and that complained of in the second division of this brief could not be held to have been proper. An affirmance of this case with that evidence in the record against him would simply mean a complete sacrifice of appellant's right to a fair trial according to law.

H. Cassedy Holden, special assistant attorney-general, for the state.

The appellant contends that the evidence was insufficient to support the verdict and that the court erred in overruling the motion to exclude the evidence of the state and for a preemptory instruction of acquittal.

With all deference to this view, it is submitted that the evidence of the state was sufficient to convict, if believed. It was proved that the defendant went with Tucker and Gardner and Boyce to the home of the deceased, looking for him just before the killing occurred; that the defendant had a pistol and loaned his shot gun to Tucker.

It was proved that anywhere from fifteen to thirty shots were fired thus showing that more than one person fired a pistol. The fatal wound was a pistol bullet. The deceased stated in his dying declaration...