Middleton v. State

• Decision Date: 21 April 1902
• Court: Mississippi Supreme Court
• Parties: FEEDY MIDDLETON v. STATE OF MISSISSIPPI

31 So. 809

80 Miss. 393

FEEDY MIDDLETON v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

April 21, 1902

FROM the circuit court of, second district, Panola county. Hon PERRIN H. LOWREY, Judge.

Middleton appellant, was indicted, tried, and convicted of murder, and sentenced to be hung. He appealed to the supreme court. The facts are sufficiently apparent from the opinion of the court.

Reversed and remanded.

Pearson & Lamb, for appellant.

The instruction is erroneous which authorizes the jury to find the defendant guilty of murder, if they believe the killing was accomplished by the second shot fired by the defendant. There is not a scintilla of evidence in the whole case from which any reasonable man would have been warranted in concluding the killing was the result of the second shot fired.

We beg to call the court's attention to that part of the district attorney's argument which, under any view of the case and circumstances we may take, seems to be entirely inexcusable and unpardonable, and that is his remarks where he uses the contradiction of Mack Washington as substantive proof, and puts the words developed by contradiction of the witness into defendant's mouth and seeks to make them prove both motive and malice, and to color and explain all the other facts and circumstances preceding and attending the tragedy.

It would be a work of superrogation for us to even offer an argument that the verdict reached by the jury in this case may probably have been induced by these unwarranted remarks of the district attorney. It is a circumstance which you cannot possibly disassociate in your minds from their finding in this case. The defendant's counsel immediately called the court's attention to argument of the district attorney in this connection. and urged an intervention, but that court for unknown reasons failed and refused to make any attempt to correct the force and effect of the same. In this connection we will only call the court's attention to one of our decisions exactly in point. Allen v. State, 66 Miss. 385.

W. L Easterling, Assistant Attorney-General, for appellee.

OPINION

CALHOON, J.

Undoubtedly Middleton shot and slew Ike Jones, who is shown to have been a violent and dangerous character. Middleton presented an application for continuance, based on the absence of an eye witness, which was overruled. We do not pass on this ruling as the case is determinable regardless of it. The killing occurred about daylight, and three witnesses for the state made out a case warranting conviction from the shots, and what they heard said by defendant and deceased; but none of them saw the beginning of the trouble. Mack Washington, a witness for defense, testified that defendant Middleton, and Jones, Patterson, Moore, another Middleton, and himself were in his room that night; that among those of the party who went to sleep at all was the deceased, who awoke in the latter part of the night, and said $ 8 had been stolen from his pocket, took out his knife, searched the party, and said to Middleton, with an oath, that he had it, and,...