Newman v. State, 39404

• Decision Date: 10 January 1955
• Docket Number: No. 39404,39404
• Citation: 77 So.2d 282,222 Miss. 660
• Parties: Rupert NEWMAN v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 282

77 So.2d 282

222 Miss. 660

Rupert NEWMAN v. STATE of Mississippi.

No. 39404.

Supreme Court of Mississippi.

Jan. 10, 1955.

Arrington & Arrington, Hazlehurst, Cohn, Hobbs & Hobbs, Brookhaven, W. M. Broom, Crystal Springs, for appellant.

J. P. Coleman, Atty. Gen., by Joe T. Patterson, Asst. Atty. Gen., Armstrong & Hoffman, Henley, Jones & Woodliff, Hazlehurst, E. C. Barlow, Brookhaven, for appellee.

ROBERDS, Presiding Justice.

Rupert Newman, appellant, was convicted of the murder of Cyrus Hood, and sentenced to the state penitentiary for life, the jury disagreeing as to the punishment. From that verdict and judgment, this appeal was taken.

Appellant raises many questions on the appeal, the main one of which being his contention that this request for a peremptory instruction should have been granted by the lower court. Since we have concluded, after diligent study of the record, this instruction should have been granted, we pass only upon that contention.

Appellant admits he shot and killed Mr. Hood but he says he did so in defense of his brother, Dupree Newman, at a time when Hood, without any justification, was in the act of shooting, or shooting at, Dupree, and that the action of appellant was in the lawful defense of his brother.

The homicide occurred about one o'clock in the morning of January 1, 1954, in the dining room of Bishop's Service Station and Cafe located just north of the corporate limits of the City of Hazlehurst, Mississippi.

A brief description of the premises will be of aid, we think, to an understanding of the evidence.

At this point U. S. Highway 51 runs practically north and south. Bishop's place is located near and on the west side of and faces east upon that highway. There are four gasoline pumps located between the building and the highway. These are in a row extending north and south. A few feet west of these pumps is the office used in connection with the gasoline station, the front door to which opens to the east and towards the pumps. The cafe is north of the office, but the office extends some fourteen feet east of the cafe. The cafe part is longer north and south than it is east and west. A door is located at the southeast corner of the cafe, permitting entrance into the cafe from the outside. The east front of the cafe is glass and there are eating booths located along the east wall. On the west side of the cafe are stools used by people while eating from a counter, which, likewise, extends north and south. The kitchen is to the west of this counter and occupies the northwest part of the building. Near the south end of the cafe is a coffee urn. The dining room is south of the kitchen. It is thirty feet long north and south and seventeen feet wide east and west. Along the west wall of the dining room are located eating booths, and a number of eating tables are located in different parts of the dining room. Between the dining room and the cafe is an opening in the form of an arch. Apparently this is several feet in width, although the exact width is not shown. This is a passageway between the dining room and the cafe. Near this opening and on the south side thereof, is a pin-ball machine. At the south side of the cafe, but within it, is a showcase in which are kept for sale cigarettes and various knickknacks. On this showcase is located the cash register. This register seems to serve both the cafe and the gasoline station. One leaving the dining room must pass through the cafe (unless he goes through the kitchen) by going through the archway into the cafe and then out of the cafe either through the door located at the southeast corner thereof or through the passage by the pin-ball machine, register and showcase into the office and then through the east door of the office to the outside. Also, located 200 feet south of the front door to the office is a rack used in washing automobiles.

On the morning of the tragedy, Mr. Hood was in charge of the premises. There is a dispute in the testimony as to whether he was in charge of the cafe operations or whether his authority and duties were confined to the gasoline station. However, we will assume he had authority over the cafe operations.

Dupree Newman, a brother of appellant, came into the cafe around one o'clock. He took a seat at a booth located at the northwest corner of the dining room and gave his order for his meal. It appears that Jack Kelly, Billy Smith and Barlow Porter were also seated in that booth. Porter told Smith to go out to his truck, parked in front of the building, and get therefrom a 'fifth' of whiskey and bring it to the table. Smith went out, got the bottle of whiskey, but, as he was bringing it into the cafe, Hood stopped him and forbade his bringing it into the dining room. Smith replaced the whiskey in the car, and informed Porter what had happened. It is in evidence that Grady Newman, who was also present in the dining room, but not at the same table, with Dupree and his companions, said to Smith, 'Tell him a G.. damn Newman sent for it.' Apparently Smith reported that to Hood, who replied that it made no difference to him who sent for it.

Porter then told Roy Miller to drive Porter's truck to the rear of the building and bring the whiskey to him. Miller did that, the bottle of whiskey being in a paper sack, in which it was placed on the table occupied by Kelly, Porter and Dupree Newman. At this point Mr. Hood walked over to the booth, touched Dupree on the shoulder and told him he would have to leave the dining room and go into the cafe part of the building. There is no evidence that Hood then demanded that Dupree leave the premises. He was told to go into the cafe. And we have not discovered in the evidence any proof that there were any lady guests present in the dining room. In any event a scuffle then took place between Dupree and Hood. Dupree either hit, or hit at, Hood with his fist, whereupon Rupert Newman, the appellant, who was also present, and some others separated Dupree and Hood.

Hood then left the dining room through the archway, passed the pin-ball machine, the cash register in the cafe, and into the office of the gasoline station. As he left the dining room, he beckoned to the Newmans, or some of them, to follow him. All of the witnesses understood that, by this action, he was demanding that the Newmans, or some of them, come outside to the front of the building. Hood was very angry. He was muttering to himself. He went out the front door of the office and turned south, which was to his right. Grady and Rupert Newman came into the office after Mr. Hood had gone out the front. There is some proof that Douglas Newman, another brother, was with them. However, Douglas disappears from the scene and we hear no more of him. Grady and Rupert opened a desk drawer in the office and looked for Mr. Hood's pistol. Rupert said he knew Mr. Hood had a pistol and usually kept it in the desk drawer or in his automobile. No pistol was in the drawer. Rupert then surmised Hood had gone to his car at the wash rack to get his pistol. There was testimony that at about this stage in the drama appellant said that if Hood came back in 'bothering', or 'fooling with', Dupree that he, appellant, would shoot or kill Hood. Appellant denied that he said that. He hold Grady to get his, Rupert's, pistol out of Rupert's car, which was parked in front of the station near the gas pumps. However, both he and Grady went to the car. They got the pistol, a 38-caliber, out of the car. There is some difference in the testimony as to whether the pistol was in the glove compartment or about the seats of the car, and whether Rupert first got it out of the car, or Grady first got it and handed it to Rupert. These questions we consider unimportant. Grady and Rupert then reentered the front door of the office and passed through the cafe into the dining room. Rupert seated himself at a table. The proof is not definite where the table was in the dining room.

Mr. Hood procured his pistol, a 44-caliber, from his automobile parked at the wash rack, and within two or three minutes proceeded back to the front door of the office. He had his pistol in his hand. As he entered the office he placed the pistol under his coat. He paused a moment to register a sale at the cash register. He then proceeded to the dining room. Just before or just after he registered the sale he remarked 'I am going to kill all of the damn Newmans.' That is not denied. As he reached the archway between the cafe and the dining room, he stopped, drew his pistol from under his coat, and, without saying a word, began to shoot at Dupree, who had remained at his booth eating his meal. Dupree was sitting at his table slightly facing the archway opening. One shot went through his left shoulder and he fell to the floor and became unconscious and therefore knew nothing that happened thereafter. It is not definitely shown how many shots were fired by Hood. While he was firing at Dupree, or immediately thereafter so as to be part of continuous acts, Rupert Newman, the appellant, shot Mr. Hood twice, either of which shots, as hereinafter shown, would have been fatal. After Mr. Hood fell, it is in evidence that either appellant or Grady Newman remarked, in vile language, that Hood would not give any more trouble. Grady Newman and appellant denied that they said that. Mr. Hood died before reaching the hospital.

Now, the first question is whether Dupree would have been justified in defending himself, even to the extent, if necessary, of killing Mr. Hood, under the foregoing circumstances.

It will be noted that Dupree had not moved from his original seat in the northwest booth. He had not obeyed Hood's command to come out of the building. He was unarmed. No one claims he was engaged in any kind of hostile demonstration towards Hood. He said not a word to Hood. The dining room was seventeen feet wide. Dupree was in the northwest corner, diagonally across the...