McCraw v. State, 46768

• Decision Date: 03 April 1972
• Docket Number: No. 46768,46768
• Citation: 260 So.2d 457
• Parties: Cleveland McCRAW v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 457

260 So.2d 457

Cleveland McCRAW v. STATE of Mississippi.

No. 46768.

Supreme Court of Mississippi.

April 3, 1972.

W. E. Andrews, Purvis, Singley & Morgan, Columbia, for appellant.

A. F. Summer, Atty. Gen. by John Kinard, Sp. Asst. Atty. Gen., Jackson, for appellee.

BRADY, Justice:

The appellant, Cleveland McCraw, was indicted by the grand jury for the murder of Melvin Johnson. The trial was held in the Circuit Court of Marion County, Mississippi, wherein the appellant was convicted of manslaughter and sentenced to serve a term of fifteen years in the Mississippi State Penitentiary. From that jury verdict and sentence, the appellant appeals to this Court.

On May 20, 1970, the appellant and his son, Edward McCraw, left Empire, Louisiana, at approximately 6:00 p.m. by automobile to drive to Columbia, Mississippi. The record reveals that at some time between two and three weeks prior to May 20, 1970, Mrs. Mary McCraw, also called B.B., the wife of the appellant, along with four of their children, two girls, Mary Ann and Peggy, and two boys, Alvin and Barney, had left Louisiana and been transported to Columbia, Mississippi by Donald Ray Stroud. Mrs. McCraw and her four children, as well as Donald Ray Stroud, had been living in the home of Melvin Johnson on South Park Avenue, just outside the city limits of Columbia, Mississippi, since they came from Louisiana. Appellant in a statement asserted that he was informed by a party unknown to him where his wife and four children were living and that this caused him and his son to drive to Columbia. On arriving at the home of Melvin Johnson on South Park Avenue sometime between the hours of ten and eleven o'clock on the night of May 20, several series of pistol shots were heard. Melvin Johnson received three small caliber bullet wounds, one in the right chest, one in the left shoulder, and another near the left wrist. Donald Ray Stroud likewise was wounded as was the appellant.

The appellant, after getting his wife and children into his automobile, left the house of Melvin Johnson and drove to the home of Clifton Yates located in the community of Improve, which is located approximately ten miles north of Columbia. Two pistols, one a 38-caliber revolver and the other a 22-caliber revolver, were left with Mr. Yates by the appellant. Mr. Yates furnished a towel to the appellant, who was bleeding quite freely from the wound he had received. Mr. Yates turned over the revolvers to the police.

On leaving Mr. Yates' home, the appellant went to the residence of his father-in-law in Hattiesburg, Mississippi. It was there that he was taken into custody by the police. Police took him to the Methodist Hospital in Hattiesburg, where he was treated and released to a Marion County, Mississippi deputy sheriff. The appellant was removed from the Marion County Jail and placed in the custody of an ambulance driver, Ben Pittman, sometime during the early morning hours of May 21, 1970. Mr. Pittman was to deliver the appellant for treatment to the Veterans Hospital in Jackson, Mississippi.

The foregoing is but a terse statement of the facts which will be supplemented as necessary as we consider the errors assigned by the appellant. The six errors assigned by the appellant when he alleges were committed by the trial court are as follows:

1. The Court erred in refusing to grant Instruction No. 11 for the Defendant.

2. The Court erred in admitting the testimony of Lloyd Barefoot as to the alleged threat made by the Defendant.

3. The Court erred in admitting certain evidence, and in particular the photographs, for the reason that the District Attorney did not comply with his agreement to disclose evidence in accordance with a motion which was timely filed.

4. The Court erred in refusing to direct a verdict for the Defendant at the conclusion of the State's evidence.

5. The Court erred in not granting the Defendant a new trial for the reason that the jury returned a verdict of manslaughter in this cause when there was no instruction to return a verdict of manslaughter, and for the reason that the court erred in granting all of the State's instructions since they were abstract and provided no guidance for the jury.

6. The Court erred in not granting the Defendant a new trial for the reason that the verdict is against the overwhelming weight of the evidence.

In support of his first error assigned, that the court erred in refusing to grant defendant's Instruction No. 11, appellant contends that had this instruction been granted it would have required the state to meet its necessary burden of proof, i.e., that 'the evidence must exclude every other reasonable hypothesis consistent with his innocence.' It is the contention of the appellant that, under the instructions which were given, the state's burden of proof was confined solely to the belief of guilt beyond a reasonable doubt.

The record reveals that the appellant did admit to Mr. Yates at the time he left two pistols with him that he (the appellant) had killed Melvin Johnson. The appellant also admitted to the ambulance driver, Ben Pittman, while waiting in the emergency room of the Veterans Hospital in Jackson, that he had shot Melvin Johnson. The statement of the appellant admitted into evidence by stipulation of both the defense and the state establishes that the appellant did pull his gun and fire at the deceased, Melvin Johnson. The record clearly reveals that Melvin Johnson was shot three times.

The case at bar is not one of those cases in which the state relied 'entirely upon circumstantial evidence' in proving the appellant's guilt. See Hadley v. State, 254 Miss. 386, 180 So.2d 920 (1965) and Blakeney v. State,225 Miss. 130, 82 So.2d 714 (1955). The appellee admits that it did rely, as it often does, on certain circumstantial evidence. It nevertheless also relied upon direct evidence to prove appellant's guilt. Since the evidence presented in the case at bar was both circumstantial and direct, the failure of the court to grant the appellant's instruction which included the phrase 'exclusion of every reasonable hypothesis' was not reversible error. Poole v. State, 231 Miss. 1, 94 So.2d 239 (1957); Kirk v. State, 222 Miss. 187, 75 So.2d 641 (1954); Jones v. State, 183 Miss. 408, 184 So. 810 (1938); and Micker v. State, 168 Miss. 692, 152 So. 286 (1934).

In support of the second error assigned, appellant contends that the alleged threat made by the appellant over eight months prior to the death of the decedent, Melvin Johnson, to Lloyd Barefoot should not have been admitted on the ground that such testimony was too remote. The trial court erred in allowing testimony of the alleged threat made by the appellant eight months prior to the events in the present case. However, under all the facts and circumstances in the instant case, we hold that the admission of the alleged threat in this particular case does not constitute reversible error.

The appellant in support of his third error assigned submits that ten days prior to the date set for the trial the appellant filed a motion to compel disclosure of all evidence favorable to the defendant. However, no order was entered on this motion for the reason that the district attorney agreed to provide the appellant with the evidence. It is the contention of the appellant that the district attorney failed to abide by his agreement in that he did not provide the appellant with photographs which were admitted into evidence as the state's exhibits. The general rule in our jurisdiction is that an accused's request for production...