Moorman v. State

• Decision Date: 15 November 1915
• Docket Number: 18070
• Court: Mississippi Supreme Court
• Parties: MOORMAN v. STATE

69 So. 1000

109 Miss. 848

MOORMAN v. STATE

No. 18070

Supreme Court of Mississippi

November 15, 1915

APPEAL from the circuit court of Pontotoc county. HON. CLAUDE CLAYTON, Judge.

Oscar Moorman was convicted of murder and appeals.

The facts are fully stated in the opinion of the court.

Case reversed and remanded.

R. N Miller, for appellant.

Lamar F. Easterling, Assistant Attorney-General, for the State.

OPINION

STEVENS, J.

Appellant was convicted of the murder of one John Creed, marshal of the town of Pontotoc, and sentenced to life imprisonment. The homicide occurred abut ten o'clock on the evening of July 4, 1914. Appellant at the time was an unmarried man, twenty five years of age, living with his widowed mother about one mile east of the town of Pontotoc. Deceased was a widower and marshal of the town. The killing occurred at night on one of the sidewalks in the business district of the town. There were no eyewitnesses, except a Mr. Baw testifies on behalf of the state that he heard the report of a pistol and saw from the window of his store the figure of a man firing the pistol. He did not pretend to recognize either party to the conflict. The proof shows a difficulty an hour or two before at the house occupied jointly by a negro woman, Roxie Morgan and a negro girl, Pearly May Jackson. The contention of appellant is that he was at the house named to visit Pearly May Jackson for immoral purposes; that at this time this negro girl was the mistress of the deceased; that while appellant was in one of the front rooms of the little four-room dwelling, deceased came to the door of one of the back rooms and engaged in a loud conversation and quarrel with Pearly May, telling her that he knew appellant was there, and demanded to know what his mission was, and that the girl should order him to leave. When the girl denied responsibility for appellant being there, deceased bade her good-bye, and apparently left; but a few minutes later he burst open the back door of one of the rooms, at the same time using some profane and vile language toward appellant, the exact words of which it is not necessary to detail, and declaring his intention to kill appellant. Appellant, who had already removed his hat and shoes, thereupon jumped out of the window and avoided the personal difficulty, although he was then armed. After deceased had left the premises, appellant then went back to the house to get his shoes and hat, but found that both were gone. He thereupon borrowed a straw hat and a pair of slippers and went back into the heart of the town, where he was talking with two of his acquaintances, Herman Enis and Woody Stockton, when Mr. Creed, the deceased came across the street in the direction the three were standing. It is the further contention of appellant that deceased in approaching stated to appellant, "I want to see you a minute," and took appellant around behind a barber shop, in the dark, where the killing occurred.

The facts thus far stated and contended for by the defense were not contradicted by witnesses for the state, except that it is the theory of the state that the negro girl in question was the mistress of appellant, and not of the deceased; that deceased, as town marshal, had a right to be at the negroes' house; that, when appellant was frightened or run away by the marshal and caused to depart without his shoes and hat, appellant went up town in search of the marshal, and himself called Mr. Creed around the corner with the statement, "I want to see you a minute; come here," and lead deceased to a secluded and dark spot with the deliberate purpose of taking his life, and did, in fact, deliberately shoot deceased five times, without any justification whatever. Just exactly what happened when the parties walked around behind the barber shop no one but appellant is in position to say. As a witness in his own behalf, he testifies that deceased grabbed him in the collar with his left hand and threw his right hand back to his hip pocket and said, "God damn you; you were down in my woman's house. I'm going to kill you;" that thereupon appellant fearing for his life, drew his pistol and began to fire; that deceased grabbed the end of the pistol, and in the struggle pulled appellant to the ground, appellant firing as rapidly as he could his automatic pistol. Appellant says:

"He fell and pulled me down on him, and I just kept firing until I got loose of him."

He further says:

"He told me he was going to kill me. That is the reason I shot him. I shot him to save myself."

Several witnesses for the state gave their version of the reports from the pistol and of outcries of distress and for help uttered by deceased while the firing was going on. There is considerable damaging testimony on the part of the state also to the effect that appellant walked and ran hurriedly down the street with pistol in hand, declining to make any explanations to those he passed; that he fled to the home of his brother, about eight miles in the country, where he was pursued by the sheriff and his posse, and only captured after being shot down. The other details of the tragedy and evidence in the case need not for the purposes of this opinion be detailed.

There are many assignments of error, most of which complain at the method in which the jury was impaneled and the refusal of the court to sustain challenges to jurors and to permit counsel to propound to the jurors questions in addition to those propounded by the court. The fourteenth, fifteenth, sixteenth, seventeenth, and nineteenth assignments are as follows:

"(14) Because the court erred in sustaining the objections of the state to the offers of evidence by the defendant to prove by the witness, Roxie Morgan, and by defendant's own evidence on the stand, the details of the difficulty at her house between the deceased, Creed, and the defendant just a few moments before the killing, and in refusing to allow the defendant to show by this witness that Creed the deceased, attacked the defendant there in her house out of a motive of jealousy, and that Creed, the deceased, was enamored by a negro girl, Pearly May, living in the house with Roxie, and that he (Creed) was living with this girl as his mistress, and that his anger against the defendant was caused by jealousy in finding the defendant at that house.

"(15) Because the court erred in refusing to permit the defendant to prove by the witness Robert Carr that Creed, the deceased, had bought furniture for his mistress, Pearly May, as corroborative of the fact that she was living with him as his mistress in adultery.

"(16) The court erred in refusing to permit the defendant, on objection by the state, to prove by the colored man, Farr, and his wife, that Creed, the deceased, had hired him and his wife to cook for Pearly May, and to watch her and to see that she associated with no other man than Creed, the deceased, as noted in the record of the trial by the stenographer.

"(17) The court erred in refusing to permit the defendant, on the objection of the state, to prove the details of what occurred between Creed, the deceased, and the defendant at the house of Roxie Morgan just a short time before the meeting in which Creed was killed, and to prove by the witness Carr and by the colored man, Farr, and his wife, that Creed was living with Pearly May as his mistress, and had attacked the defendant in her house out of motives of jealousy not more than one hour before he was killed, and that when he met him the second time when Creed was killed, that his assault on the defendant was from motives of jealousy on account of finding the defendant in Pearly May's house. This testimony was all admissible to corroborate the defendant as to who was the aggressor and the provoker of the difficulty in which Creed was killed. . .

"(19) Because the court erred in permitting the district attorney in his closing speech to lay a man down on the floor and take a stick and demonstrate his theory of the wounds in the dead man's body, and thus depriving the defendant of any right to cross-examine; their being nothing in the evidence to warrant any...