McClure v. State

• Decision Date: 09 June 1930
• Docket Number: 28853
• Citation: 128 So. 764,157 Miss. 800
• Court: Mississippi Supreme Court
• Parties: MCCLURE v. STATE

128 So. 764

157 Miss. 800

MCCLURE v. STATE

No. 28853

Supreme Court of Mississippi

June 9, 1930

Division A

1. CRIMINAL LAW. Instruction that jury were warranted in disbelieving testimony of witness "Knowingly" or "corruptly" and "falsely" testifying to any material facts held erroneous.

Since the word "knowingly," as used in the instruction would be deemed synonymous with the word "willfully," and the words "willfully" and "falsely" do not embrace the word "corruptly," the converse is true that the word "corruptly" does not embrace the words "willfully" and "falsely," so that the two theories upon which testimony could be disregarded were disjunctively connected.

2. CRIMINAL LAW. Instruction authorizing jury to consider interest witness may have in case held not reversible error under circumstances.

The circumstances disclosed that other witnesses with interests had testified to material facts for the defense, so that it could not be said with certainty that instruction was aimed at evidence of defendant alone, and In addition to which defendant excluded an instruction which clearly announced competency of defendant as a witness, and that the law cast no suspicion on defendant's testimony.

HON GREEK L. RICE, Judge.

APPEAL from circuit court of Tallahatchie county, Second district HON. GREEK L. RICE, Judge.

Marvin McClure was convicted of murder, and he appeals. Reversed and remanded for another trial.

Case reversed and remanded.

Jno. M. Kuykendall, of Charleston, and Cook & Ascough, of Clarksdale, for appellant.

Instruction Number 5 given for the state is as follows:

The court instructs the jury for the state, that you are the sole judges of the credibility of the witnesses in the case, and, if you believe from the evidence that any witness has knowingly, or corruptly and falsely testified as to any material facts in this case, you are warranted in disbelieving all the testimony of any such witness; and the court further charges the jury that in passing upon the credibility of the witness you may consider the manner or demeanor of the witnesses while on the stand and the interest the witness may have in the case, if any such interest is shown by the evidence. This instruction is erroneous.

Jones v. State, 154 Miss. 640; Buckley v. State, 62 Miss. 705; Woods v. State, 67 Miss. 575; Townsend v. State, 12 So. 209; Piggott v. State, 107 Miss. 552; State v. Bank, 40 La. Ann. 736; Jones v. Mickey, 26 S.E. 276; Smith v. State, 90 Miss. 115; White v. State, 52 Miss. 216; Vicksburg & M. R. Co. v. Hendricks, 62 Miss. 28; Sardis & Delta R. R. Co. v. McCoy, 85 Miss. 391; Davis v. State, 89 Miss. 119; Wofford v. State, 99 Miss. 759; Jefferies v. State, 77 Miss. 761.

Cook & Ascough, of Clarksdale, for appellant.

The court should have given the peremptory instruction asked for by defendant at the close of all testimony because defendant was the only eye-witness to what occurred at the time of the killing and what brought on the difficulty there is no contradiction between state and defense witnesses as to what brought about the difficulty, the defendant's statement of how the difficulty arose is both reasonable and clear, and there is no conflict between his testimony and the physical facts, the physical facts on the contrary corroborate defendant's testimony.

Walters v. State 122 So. 189, 153 Miss. 709; Gaddis v. State (Miss.), 110 So. 691; Strahan v. State, 143 Miss. 519, 108 So. 502; Houston v. State, 117 Miss. 311, 78 So. 182; Patty v. State, 126 Miss. 94, 88 So. 498.

Wm. A. Shipman, Assistant Attorney-General, for the state.

While it is well settled that if the testimony of the only eye-witness to the killing established a case of self-defense, the jury cannot be permitted to disregard this testimony arbitrarily, and unless the testimony is unreasonable or is in conflict with the physical facts or circumstances, an accused is entitled to a directed verdict of acquittal. However, the converse of this proposition is also equally and as well established, and if the explanation given by the defendant or by the eye-witnesses is unreasonable, or if it be contradicted by the physical facts and circumstances, then it is a matter to be submitted to the jury under proper instructions and in such case the verdict of guilty as found by the jury will stand.

McGehee v. The State, 138 Miss. 822, 104 So. 151; Grady v. State, 144 Miss. 778, 110 So. 225; McFatter v. State, 147 Miss. 133, 113 So. 187; Brumfield v. State, 150 Miss. 552, 117 So. 529.

Instruction No. 5 is not erroneous.

In Pool v. State, 110 Miss. 158, 56 So. 184, this court held that it was not reversible error to give an instruction to the same effect as number five in the instant case.

Hughey v. State, 106 So. 361; Jones v. State, 130 Miss. 703, 94 So. 851; Jefferies v. State, 77 Miss. 755; Brown v. State, 75 Miss. 842; Vails v. State, 94 Miss. 365, 48 So. 725.

Argued orally by Vivien Cook and Joe Kuykendall, for appellant, and by W. A. Shipman, Assistant Attorney-General, for the state.

OPINION

McGowen, J.

McClure was indicted, tried, and convicted on a charge of murder for the killing of Fletcher. The jury having disagreed as to the punishment, the sentence of the court was life imprisonment in the state penitentiary.

For the reason that we have concluded that this case must be remanded to the lower court for another trial, we forego a detailed statement of the facts.

The appellant, by his evidence, made out a case of self-defense, in that he contended that the deceased was in the act of drawing a pistol from his hip pocket at the moment that he shot the deceased five times, one shot being in the abdomen, one in the right side, and three shots in the rear of the left shoulder, very close together.

There was another witness for defendant, who testified that she saw the deceased with a pistol in his hand; and still other witnesses testified to the finding of a pistol near the spot from which the body of the deceased was removed to the porch of a store.

No other witness save the defendant testified as to what occurred between the deceased and the defendant just prior to the shooting. However, the witnesses for the state testified to such a state of facts as to circumstantially contradict the defendant's statement.

It is earnestly urged that the defendant was entitled to a peremptory instruction because his version of the facts in regard to the homicide was uncontradicted by the testimony of the witnesses or by the physical facts.

In our opinion, this position is untenable, and the physical fact of the location of the wounds, as described by the doctor, and shown in the exhibit to his testimony, tends to contradict the appellant's version of the killing; likewise, the testimony of the witnesses in the store, as to the length of time intervening after deceased left the store before the shooting began, also tends to contradict the defendant. In the light of these contradictions, it was peculiarly a question for the jury as to whether or not the appellant's account of the facts was reasonable. See Brumfield v. State, 150 Miss. 552, 117 So. 529; McFatter v. State, 147 Miss. 133, 113 So. 187; Grady v. State, 144 Miss. 778, 110 So. 225; McGehee v. State, 138 Miss. 822, 104 So. 150, 151.

Second, the appellant assigns as error the action of the court in granting instruction No. 5 on behalf of the state, which is as follows:

"The court instructs the jury for the state, that you are the sole judges of the credibility of the witnesses in the case, and if you believe from the evidence that any witness has knowingly, or corruptly and falsely testified as to any material facts in this case, you are warranted in disbelieving all the testimony of any such witness; and the court further charges the jury that in passing upon the credibility of the witnesses you may consider the manner or demeanor of the witnesses while on the...