McGehee v. State

• Citation: 138 Miss. 822,104 So. 150
• Decision Date: 06 April 1925
• Docket Number: 24707
• Court: United States State Supreme Court of Mississippi
• Parties: MCGEHEE et al. v. STATE. [*]

104 So. 150

138 Miss. 822

MCGEHEE et al. v. STATE. ^[*]

No. 24707

Supreme Court of Mississippi

April 6, 1925

Division B

Suggestion of Error Overruled May 25, 1925.

APPEAL from circuit court of Lincoln county, HON. E. J. SIMMONS Judge.

Lorenzo McGehee was convicted of murder, and Jimmie McGehee was convicted of manslaughter, and they appeal. Affirmed as to Lorenzo McGehee; reversed and remanded as to Jimmie McGehee.

Judgment affirmed. Suggestion of error overruled.

Naul & Yawn and J. H. Sumrall, for appellant.

The first assignment of error that: "The verdict of the jury was contrary to the law and the evidence," necessarily presents a question which brings into review all other errors assigned in this cause. It is impossible to conceive, from the facts disclosed in this record, which this court is necessarily confined to, how a conviction could have been had in this cause, which should have been based on the facts in evidence; as there is not one particle of evidence in the whole record that would justify a jury in reaching the conclusion upon which the state necessarily depended in asking for a conviction; as there is no motive shown, nor was the jury justified in finding from the facts properly in evidence that appellant, Lorenzo McGehee, who admittedly fired the fatal shot, was actuated by any other motive than a desire to protect the life of his brother, who at the time of the firing of the fatal shot was justified in believing, and did believe that his brother was in danger of losing his life, or suffering great bodily harm.

We respectfully submit that there is nothing in the evidence disclosed by this record, either by the testimony introduced by the state, or the appellants themselves, to even remotely connect appellant, Jimmie McGehee, with the killing of deceased Diamond; and therefore, the peremptory instruction requested for appellant, Jimmie McGehee, should have been granted.

Assignment of error No. 3 deals with the instruction granted to the state by the trial judge in the lower court, and especially do we call the attention of the court to the first instruction granted for the state, as shown on page 18 of the record, wherein the jury was instructed by the court that--"And in this case if you believe from the evidence beyond a reasonable doubt, that the defendant, Lorenzo McGehee, shot and killed Norris Diamond at a time when neither he nor Jimmie McGehee were in any danger, real or apparent, of losing their lives or suffering great bodily harm at the hands of Norris Diamond, then the defendant, Lorenzo McGehee, is guilty either of murder or manslaughter; murder, if he acted of his malice aforethought, and manslaughter if he acted without malice."--which plainly and unmistakably instructs the jury that if "you believe," etc., that the shooting occurred at a time when neither of appellants was in danger of losing his life, or suffering great bodily harm at the hands of the deceased, then, the jury should convict.

By this instruction there was taken from the appellants in this cause a substantial and sacred right, to which they were entitled, to-wit--the right to act on the belief of appellant, Lorenzo McGehee, that his brother was in danger of losing his life, or suffering great bodily harm, and the burden was erroneously placed upon the defendants to prove to the satisfaction of the jury that under the circumstances detailed by them that such danger, real or apparent, in the belief of the jury, must have existed before the appellant, Lorenzo McGehee, would be justified in acting as he did in defense of his brother.

Surely no better authority could be found for the condemnation of this instruction than the clear and sound pronouncement of the law as made by this court, through Justice ETHRIDGE in Jim Hathorn v. State, holding that an instruction to the effect that it must appear to the reasonable satisfaction of the jury that the defendant had reasonable ground to believe, and did believe, and that there was reasonable cause to believe, etc., is erroneous.

Nowhere in this instruction is the jury told that they had a right to take into consideration what the defendant, Lorenzo McGehee, believed at the time he fired the fatal shot. There is not one scintilla of evidence in this record that even hints at a conspiracy. There is absolutely nothing in the record to indicate a preconceived plot on the part of appellants to bring about the death of deceased, but on the other hand it is abundantly shown by all the evidence of both appellants and witnesses for the prosecution that appellants and deceased were friends and had been for a long number of years.

The case of Jim Hathorn v. State, decided on February 9, 1925, by this court, and hereinbefore referred to, is the most recent pronouncement of this court of the principles hereinbefore set out; and this case, together with Reddix v. State, 134 Miss. 393, is positive authority in our judgment for the view that the trial court in this cause deprived the appellants of substantial rights by the form of instructions given wherein the jury was allowed to consider, without any evidence on said question, the theory of conspiracy on the part of appellant; and not only was this theory absolutely refuted by the plain testimony of appellants, as to how the killing occurred, but all the facts with reference to circumstances leading up to the killing bear out their testimony. The state wholly failed to show, even remotely, that any predicate had ever existed by reason of bad feeling between the parties, or any other motive whatever which would indicate a motive on the part of either appellant at any time before to have brought about the death of the deceased.

F. S. Harmon, Special Assistant Attorney-General, for the state.

Various errors are assigned on this appeal, but sifted down to the last analysis the only vital questions before the court are the sufficiency of the evidence and the correctness of the instructions. We turn, therefore, to the case as made out by the state, prefacing the survey of the facts, however, with the frank statement that the case against Jimmie McGehee is far from strong and that the record contains little or nothing in the form of affirmative proof to show that the two brothers conspired to commit this murder.

Learned counsel for the appellants insists that the physical facts bear out the defense theory. We are utterly unable to agree with this contention. The car showed that the glass was broken in the rear curtain and in the windshield, and the undertaker swore that the bullet which killed the deceased went straight thru his body, thus indicating quite clearly that this gun was fired on a level, instead of from a superior height, such as the spot on the bank from which defendant swore he fired. The finding of the shotgun wad in the ditch, near a little stand on which milk cans were placed, makes it much more probable to believe that this defendant Lorenzo McGehee fired this gun when concealed there in the ditch at the side of the road after deceased's car had gotten some forty feet beyond him.

Jimmie McGehee's story is subject to grave impeachment on several grounds. At the threshold is the testimony of the young lady who admitted that she liked him and who surely would not have been adverse to protecting him if she could conscientiously have done so, yet this young lady contradicted Jimmie's statement that she had a date with him on the evening in question. It is improbable to believe that a sixteen-year-old boy in grave danger which Jimmie says he was in, should have allowed Zeb Norton's car to go by him without making some effort to secure the protection of his friend Zeb, or made some effort, at least, to stop him. Furthermore, it is difficult to understand why Jimmie persisted in running down the road instead of going off into the field, since according to his own story he succeeded on three different occasions in getting ahead of Norris Diamond and was each time overtaken solely by reason of the fact that Norris Diamond started his car up again and ran him down with the car. Jimmie McGehee attempts to patch up this weak spot in his story by the statement that he was caught in a trap, by reason of the ditch on each side of the road and the character of the fence across the ditch.

Boiled down to the last analysis, we have the dying declaration of the deceased that Lorenzo McGehee shot him, the admission of Lorenzo McGehee that he fired the fatal shot and a series of physical facts and circumstances which negative the theory that this shot was fired in the necessary self-defense, either real or apparent, of his brother Jimmie. It was for the jury to believe or disbelieve the testimony for the defendants; the defense theory is subject to impeachment on so many grounds and is so clearly and completely negatived by the physical facts, that the jury was fully warranted in finding Lorenzo McGehee guilty and in disbelieving his explanation of the tragedy.

Quite frankly the situation as to Jimmie McGehee is materially different. There is no direct and positive evidence in this record to indicate that he conspired with his brother to lure the deceased to his death, and there is no evidence in the record to prove that he participated in the actual killing. But as to Lorenzo McGehee we assert with confidence that from the whole record, the jury was fully warranted in bringing in a verdict of guilty and that the facts sustain this verdict, and this court will not disturb same, especially since no error of law was committed during the course of the trial.

H. V. Wall, also for the state.

If the facts in this case were not sufficient to go to a jury to say whether both of these defendants were guilty of murder, any person...