Morgan v. State, 52063
| Decision Date | 01 October 1980 |
| Docket Number | No. 52063,52063 |
| Parties | William H. MORGAN v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Terry L. Jordan, Laurel G. Weir, Thomas L. Booker, Lewis, Booker & Lewis, Philadelphia, for appellant.
Bill Allain, Atty. Gen. by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before ROBERTSON, P. J., WALKER and BOWLING, JJ.
William H. Morgan was convicted in the Circuit Court of Neshoba County of aggravated assault on a fireman while acting within the scope of his duty. He was sentenced to serve ten years in the Mississippi State Penitentiary.
This is the second appearance of this case in this Court. On its first appearance (370 So.2d 231 (Miss.1979)), we reversed and remanded for a new trial because, when the jury was polled, a juror indicated some doubt as to whether he had voted for the guilty verdict.
The facts of this case are rather unusual. Morgan was in the United States Marine Corps and had arrived in Philadelphia, Mississippi, the afternoon before the fire. About 1:30 a. m., November 25, 1977, Kenneth Coleman, a volunteer fireman, had received a radio signal at his home that there was a fire. He immediately went to the fire, a building known as the "Sport House". He put on his protective clothing and asked Chief W. G. Brunson of the Philadelphia Fire Department what he could do to help. Chief Brunson instructed him to help move the crowd back from the burning building. Coleman testified that some of the people moved but that Morgan, who was attempting to go into the building, did not move back so Coleman grabbed him and tried to pull him back. Morgan pulled loose from him and tripped over a piece of concrete. Coleman stated that Morgan then got up and knocked him back into the Chief, and that both fell down. Coleman further stated that Morgan then pulled a pistol on them and with the pistol pointed at Coleman backed him up to the fire truck some 30 or 40 feet away.
According to Coleman, Morgan hit him one time across the forehead with the pistol barrel and then Morgan returned to the burning building. Coleman further testified that at the time of this incident smoke was boiling out the door of the building, that there was confusion, and that people were running around, screaming and hollering that "Pie Shot" was still in the building. Coleman also stated that Morgan tried to grab the Chief's hand lantern to go back into the burning building, and that is when he grabbed Morgan and pulled him back. Coleman stated that he weighed 230 pounds and that Morgan weighed around 190 pounds.
Dr. Bondurant testified that the blow to the head cut down to the skull, and that he thought Coleman had suffered a possible skull fracture. He sewed up the wound and kept Coleman in the hospital for observation.
Morgan testified that he had gone to the fire with a girl friend, that he was the one who called the fire department and reported the fire, that when he heard Kathy Johnson scream that "Pie Shot" was still in there he went into the burning building twice to search for him, that as he attempted to go back in for the third time someone grabbed him from the side and pulled him back, that he struggled with the person holding him, and that he (Morgan) was hit across the chest and knocked down. Morgan testified that as he lay on the ground all he could see was this big figure "just hovering over me, and so I just got up and hit him." Morgan was supported in his testimony by his witnesses, Dot Fielder, Roosevelt Smiley and Kathy Ann Johnson.
Coleman was supported in his testimony by Chief Brunson and fireman John Culberson.
Appellant has assigned as error:
1. The district attorney employed improper and prejudicial tactics in the trial below denying appellant a fair trial.
2. The verdict of the jury is against the overwhelming weight of the evidence and the court should have granted a judgment n. o. v. or a new trial.
3. The court below erred in giving the state's instruction.
The district attorney on cross-examination attempted to impeach Morgan by asking him if he did not recall testifying at his first trial that he hit Coleman as hard as he could with a 357 magnum. On Morgan's denial and after defense counsel's objection was overruled, the district attorney continued to cross-examine him about his testimony having been different on the first trial.
Finally defense counsel said:
Whereupon, the Court ruled:
"I am going to let this Defendant answer him, and then if you want to produce the record, I will permit you to do so."
On redirect examination defense counsel introduced the complete transcript of the first trial and read certain portions of it bearing out the truthfulness of Morgan's answers that he did not hit him with a pistol but hit him with his fist as hard and as fast as he could, after he had been knocked down by Coleman. The record also contains a bill of exceptions which states that the district attorney, in his closing argument, made this statement to the jury:
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