McElwee v. State, 46597
| Decision Date | 13 December 1971 |
| Docket Number | No. 46597,46597 |
| Citation | 255 So.2d 669 |
| Parties | Bernard W. McELWEE v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
T. F. Badon, F. W. Stratton, Liberty, for appellant.
A. F. Summer, Atty. Gen., by John M. Kinard, Special Asst. Atty. Gen., Jackson, for appellee.
Appellant Bernard W. McElwee was indicted, tried and convicted in the Circuit Court of Amite County for the crime of murder. He was sentenced to serve life imprisonment in the State Penitentiary. From this conviction and sentence he appeals. We reverse and remand.
The evidence in this case establishes that appellant was employed by the deceased Henry Lilly to help Lilly haul pulpwood. The work agreement was that Lilly would furnish appellant with a home in which to live, would furnish him with meals at Lilly's home, and would pay him an agreed price per load for hauling pulpwood. On Sunday morning August 23, 1970, appellant went with Lilly to collect for some pulpwood hauled during the week. On the way back they stopped in Louisiana and purchased some whiskey. After consuming some of the whiskey, Lilly purchased a fifth which he carried home with him. After they had eaten lunch, appellant went to the house where he lived, leaving Lilly asleep at his house. Later that afternoon Lilly came to appellant's house. He accused appellant of stealing his liquor, threatened to kill him and struck at him. Appellant had a sprained ankle and got away from Lilly by getting into the car with Mr. Brady, who had driven up during the occurrence of this event. Later that day Lester Morgan and Lilly came to appellant's home and the three of them went to Louisiana and purchased some more liquor. According to the testimony of appellant, it was dark when they returned and Lilly got out of the truck and started towards his house. Appellant then went into his house to pick up some epsom salts to carry with him to Morgan's house where hot water was available to treat his ankle. McElwee testified that after he got into his room he heard Lilly outside the rear door cursing him and threatening to kill him. McElwee picked up a single barrel shotgun that was in the corner near his bed. The door was shoved open and appellant then fired his shotgun. He immediately left without making any effort to ascertain whether the shot fired had struck Lilly. He returned to the truck where Morgan was waiting and left. On the following Tuesday afternoon the body of Lilly was found at the back door of appellant's room. He had been shot one time by a shotgun blast at a range close enough to leave powder burns. Later that day appellant was arrested at Morgan's home. He was in an intoxicated condition and was not questioned by the sheriff. On the following morning, after being warned of his Miranda rights by the sheriff and an investigator for the highway patrol, he made a statement. This statement contradicted his testimony to some extent, but not as to what transpired just before the fatal shot was fired.
Appellant urges two main propositions for reversal of this case. It is first urged that the trial court was in error in refusing to grant his motion to direct the jury to find him not guilty. It is contended that appellant was the only eye witness to the crime charged and that his version made out a case of self-defense and must be accepted as true. In other words, he relies upon the Weathersby rule. That rule is where the defendant or the defendant's witnesses to the crime are the only eye witnesses, their version, if reasonable, must be accepted as true, unless substantially contradicted by material particulars by a credible witness or witnesses, or by physical facts or facts of common knowledge. It is true that appellant was the only eye witness to the shooting, but his own voluntary statement to the sheriff and the investigator to some extent contradicted his testimony given at the trial. These contradictions together with the fact that appellant immediately left the scene and never reported the incident to the sheriff or any one else, were sufficient...
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