Magee v. State

• Decision Date: 19 July 1929
• Docket Number: 27992
• Citation: 122 So. 766,154 Miss. 671
• Court: Mississippi Supreme Court
• Parties: MAGEE v. STATE

122 So. 766

154 Miss. 671

MAGEE v. STATE

No. 27992

Supreme Court of Mississippi

July 19, 1929

Suggestion of Error Overruled June 10, 1929.

(En Banc.)

1 HOMICIDE. Defendant's guilt of murder held for jury.

In prosecution for murder, question of defendant's guilt or Innocence held for jury.

2 HOMICIDE. Evidence held sufficient to support conviction for murder.

In prosecution for murder, evidence held sufficient to support conviction.

3. CRIMINAL LAW. Admitting state's rebuttal testimony held not error, where no proper objection was offered thereto.

In murder prosecution, admitting rebuttal testimony of state that witnesses were first ones to reach scene of homicide and that no person went to body of deceased before arrival of sheriff held no error, where no proper objection was made thereto.

4. HOMICIDE. In murder prosecution, state's evidence that no one

went to deceased's body before arrival of sheriff held proper rebuttal.

In prosecution for murder, state's evidence that witnesses testifying were first ones to reach scene of homicide and that no person went to deceased's body before arrival of sheriff held properly admitted in rebuttal of testimony offered by defendant that certain persons went to deceased's body before sheriff arrived.

5. CRIMINAL LAW. Complaint regarding district attorney's argument incorporated in unsigned paper cannot be considered on appeal. Defendant's complaint regarding language used by district attorney in argument to jury incorporated in an unsigned paper designated a special bill of exceptions will not be considered on appeal, since purported special bill of exceptions was not made up in manner prescribed by law.

6. CRIMINAL LAW. New trial for newly-discovered evidence held properly refused, where there was no affidavit showing diligence and testimony offered in support of motion showed evidence was hearsay.

Overruling motion for new murder trial on ground of newly-discovered evidence held not error, where motion was not supported by affidavit of defendant and his attorney showing diligence with reference to discovery of evidence and that evidence was unknown to them at time of trial, and testimony offered in support of motion at hearing thereof showed newly-discovered evidence was purely hearsay, and therefore inadmissible.

Suggestion of Error Overruled June 10, 1929.

APPEAL from circuit court of Lawrence county.

HON. J. Q. LANGSTON, Judge.

Oliver Magee was convicted of murder, and he appeals. Affirmed.

Judgment affirmed.

Ovie L. Berry, of Newhebron, for appellant.

The court should not permit a verdict of guilty to stand where such verdict is contrary to the law and the evidence in the case.

The court should not permit the state to build up its case in rebuttal after the defendant has rested, since the state could have brought out the same testimony in chief, and especially is this true when such evidence is not in rebuttal to any evidence that could not have been brought out in chief and was not in rebuttal to appellant's case.

J. A. Lauderdale, Assistant Attorney-General, for the state.

Where the testimony for the defense makes a case of self-defense, and this testimony is contradicted by the physical facts, circumstances and testimony of other witnesses, it makes a question of fact for the jury, and the finding of the jury is binding upon the court.

Grady v. State, 144 Miss. 778; McDonald v. State, 109 So. 29; Wingo v. State, 91 Miss. 865.

In the trial of a murder case where the court gives instructions correctly stating the law of self-defense and giving the form of the verdict that might be rendered under the evidence the defendant cannot complain.

Jones v. State, 140 Miss. 889, Text 895; Matthews v. State, 108 Miss. 72; Molphus v. State, 124 Miss. 584; Tatum & State, 142 Miss. 110.

Where a purported special bill of exceptions is not made up in any manner prescribed by law, it is not a proper part of the record and cannot be considered by the supreme court on appeal.

Hemingway's Code, 1927, sec. 591, et seq.; Keaton v. State, 102 Miss. 747; Huggins v. State, 103 Miss. 227; McLeod v. State, 130 Miss. 83; Elmore v. State, 143 Miss. 318; King v. State, 146 Miss. 285.

When a motion for a new trial does not allege that the defendant and his attorney used diligence, and there is no affidavit by the defendant and the attorney stating that they had used diligence, and that the testimony was unknown to them during the trial it is insufficient.

Overton v. State, 101 Miss. 607; Hester v. State, 148 Miss. 425.

Allegations in motions are denied without further plea, and the burden is upon the movant to prove the allegations therein.

Young v. State, 117 So. 119; Reed v. State, 143 Miss. 686.

Argued orally by Ovie L. Berry, for appellant, and by J. A. Lauderdale, Assistant Attorney-General, for appellee.

OPINION

COOK, J.

The appellant, Oliver Magee, was convicted in the circuit court of Lawrence county of murder, and was sentenced to be hanged, and from this conviction and sentence, he prosecuted this appeal.

The state offered the testimony of the sheriff of the county, who testified that on the morning of the homicide the appellant came to his office and told him that he had shot Ernest Tyrone; that he shot him in his, appellant's, yard, and he was lying in the yard when he left home, but he did not know whether or not he was dead; that he shot him because he had been "messing" with him for a week; that the appellant then handed to him a single-barrel, breech-loading shot-gun, and stated that it was the weapon he had used; that he also handed to him ten shotgun shells, three of which were loaded with buckshot.

The sheriff further testified that he immediately went to appellant's home, and found the body of Tyrone lying in the yard, and that he was lying back against the fence, with his head propped up against the baseboard of the fence. Upon examination of the body of the deceased, he found that one load of buckshot and small shot had struck the deceased in the abdomen near the waistline; that the shot tore their way through the sweater and vest worn by the deceased, and ranged upward, practically covering the chest and body up to the chin and face; that the bullets glanced upward, and fragments of the deceased's sweater and vest were torn off by the bullets, and were imbedded in the baseboard near deceased's head, where some of the shot entered the baseboard.

He further testified that, when he turned the body over, he found that a load of eight or ten buckshot and forty or fifty small shots had struck the deceased straight in the back. He found one empty shell ten steps from the body of the deceased, and another eighteen steps from the body.

The sheriff further testified that, when he examined the clothing of the deceased, he found in the pockets a purse containing about eight dollars in currency, and a knife wrapped in a rag or handkerchief, and a razor in the shirt pocket under the sweater and vest; but he did not find any pistol. With the exception of certain rebuttal testimony, this concluded the testimony for the state.

The appellant was a tenant on the farm of deceased, and he and his witnesses testified that on Sunday before the homicide on the following Saturday the deceased came to appellant's home, and they then had a fuss about some money matters, and the amount that would be required to furnish the appellant during the year, and as a result of this fuss the deceased ordered the appellant to move off his place; that on the following day they again quarreled about a stove and bedstead that the appellant purchased on the deceased's guaranty, and which he had not fully paid for and that the fussing and ill feeling between these parties continued until Thursday, when they had a fuss, during the progress of which the deceased accused the appellant of having gone to Monticello to have him indicted, and threatened to kill him if he did have him indicted; that on Friday the appellant made arrangements to move to the farm of Homer...