Maiben v. State, No. 52774

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtWALKER; PATTERSON
Citation405 So.2d 87
PartiesLeroy James MAIBEN v. STATE of Mississippi.
Docket NumberNo. 52774
Decision Date14 October 1981

Page 87

405 So.2d 87
Leroy James MAIBEN
v.
STATE of Mississippi.
No. 52774.
Supreme Court of Mississippi.
Oct. 14, 1981.

Louis Fondren, Pascagoula, for appellant.

Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

WALKER, Justice, for the Court:

On August 25, 1980, Leroy James Maiben was found guilty of murder in the Circuit Court of Jackson County, Mississippi. Maiben appeals from this conviction contending:

(1) That the verdict of the jury was against the overwhelming weight of the evidence; and

(2) That the court erred in allowing the defendant's wife to testify against the defendant after the defendant's counsel raised a proper objection to her competency. Further, the court failed to grant defense counsel's motion for mistrial due to the admission of this incompetent witness' testimony. We affirm.

On March 8, 1980, in Moss Point, Mississippi, Reverend Melvin Leroy Kirkland was in his living room watching television while his daughter, Dorothy Maiben, was preparing lunch in the kitchen. Leroy James Maiben, Dorothy's husband, had been trying to persuade her to go to the bedroom so he could talk to her. She assured him several

Page 88

times they would talk after lunch. Soon afterwards, from the living room, Dorothy heard her husband say, "hey," ... "hey, you are first." Whereupon there was a gunshot. She ran immediately to the living room and exclaimed, "oh, you shot my daddy, why did you do it", and her husband answered, "yes, and you are next." Mrs. Maiben went for the shotgun, a scuffle ensued in which Maiben began hitting his wife in the area of her head and ordering her to shutup. During this exchange, the shotgun went off again, apparently through the screen door. When Mrs. Maiben was successful in wrestling the gun from her husband, she fled her house to that of the neighbor's. When the police arrived she handed them the shotgun and learned that her husband had gone. A man identified as Maiben was seen walking two blocks from the Maiben home by an officer of the Moss Point Police Department in route to investigate the incident. Freddie Gray, Mrs. Maiben's nephew and Reverend Kirkland's grandson, recounted a telephone conversation with the defendant the day before the shooting in which Gray had commented about going to Philadelphia, Mississippi, with his grandfather the next day. To this, the defendant replied: "Pappa's not going with you tomorrow ... watch what I tell you, he's not going."

The defendant claimed the struggle between the two was due to her refusal to sell the shotgun and pay the utility bill. Upon emerging from the bedroom, "She grabbed the gun and started wrestling with me." The gun went off once, they continued struggling to a point near the front door when the gun fired again. Maiben then surrendered the gun and left the house. He testified his back was to Kirkland and never knew that his father-in-law had been shot.

When Maiben departed he did not stop until he reached Florida where he was arrested two months later, neither informing his wife nor packing any clothes.

Dr. James Logan Stith testified the cause of death was asphyxia from the aspiration of blood into the lungs as a result of a gunshot wound at close range.

PROPOSITION I

THAT THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

This assignment of error is void of any authority to support appellant's assertion and he relies solely on the conflict in his and his wife's account of what happened and his lack of motive to shoot his father-in-law.

The law is well settled in this State that motive is not...

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28 practice notes
  • People v. Love, Docket No. 72384
    • United States
    • Supreme Court of Michigan
    • August 7, 1986
    ...645, 111 N.W. 637 (1907); Willard v. State, 682 S.W.2d 686, 690 (Tex.App., 1984), criticized in Zamora, supra. See also Maiben v. State, 405 So.2d 87, 90 (Miss., 18 See statutes compiled in Wigmore, supra, Sec. 488, n. 1, pp. 657-696. Although Briley held that a witness-spouse could be comp......
  • Walker v. State, No. 54398
    • United States
    • United States State Supreme Court of Mississippi
    • July 24, 1985
    ...in which the evidence is admissible to prove motive. We have not required proof of motive in cases involving murder, Maiben v. State, 405 So.2d 87 (Miss.1981); rape, Massey v. State, 393 So.2d 472 (Miss.1981); or embezzlement, Boteler v. State, 363 So.2d 279 (Miss.1978). Indeed, proof of mo......
  • Watts v. State, No. 96-DP-01030-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • January 28, 1999
    ...Miss. 281, 159 So.2d 167 (1963); and Freeman v. State, supra [228 Miss. 687, 89 So.2d 716 (1956)]. Id. at 1311(quoting Maiben v. State, 405 So.2d 87, 88 ¶ 43. Watts first calls into question the credibility of the DNA evidence presented, briefly attempting to explain away the presence of DN......
  • Thorson v. State, No. 2002-DP-01420-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • November 4, 2004
    ...is proper. Pruitt v. State, 807 So.2d 1236, 1243 (Miss.2002) (citing Dudley v. State, 719 So.2d 180, 182 (Miss.1998)). In Maiben v. State, 405 So.2d 87 (Miss.1981), this Court We have held in numerous cases that the jury is the sole judge of the credibility of the witnesses and the weight t......
  • Request a trial to view additional results
28 cases
  • People v. Love, Docket No. 72384
    • United States
    • Supreme Court of Michigan
    • August 7, 1986
    ...645, 111 N.W. 637 (1907); Willard v. State, 682 S.W.2d 686, 690 (Tex.App., 1984), criticized in Zamora, supra. See also Maiben v. State, 405 So.2d 87, 90 (Miss., 18 See statutes compiled in Wigmore, supra, Sec. 488, n. 1, pp. 657-696. Although Briley held that a witness-spouse could be comp......
  • Walker v. State, No. 54398
    • United States
    • United States State Supreme Court of Mississippi
    • July 24, 1985
    ...in which the evidence is admissible to prove motive. We have not required proof of motive in cases involving murder, Maiben v. State, 405 So.2d 87 (Miss.1981); rape, Massey v. State, 393 So.2d 472 (Miss.1981); or embezzlement, Boteler v. State, 363 So.2d 279 (Miss.1978). Indeed, proof of mo......
  • Watts v. State, No. 96-DP-01030-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • January 28, 1999
    ...Miss. 281, 159 So.2d 167 (1963); and Freeman v. State, supra [228 Miss. 687, 89 So.2d 716 (1956)]. Id. at 1311(quoting Maiben v. State, 405 So.2d 87, 88 ¶ 43. Watts first calls into question the credibility of the DNA evidence presented, briefly attempting to explain away the presence of DN......
  • Thorson v. State, No. 2002-DP-01420-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • November 4, 2004
    ...is proper. Pruitt v. State, 807 So.2d 1236, 1243 (Miss.2002) (citing Dudley v. State, 719 So.2d 180, 182 (Miss.1998)). In Maiben v. State, 405 So.2d 87 (Miss.1981), this Court We have held in numerous cases that the jury is the sole judge of the credibility of the witnesses and the weight t......
  • Request a trial to view additional results

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