Owen v. State

• Decision Date: 27 November 1944
• Docket Number: 35676.
• Citation: 19 So.2d 822,197 Miss. 561
• Court: Mississippi Supreme Court
• Parties: OWEN v. STATE.

19 So.2d 822

197 Miss. 561

OWEN v. STATE.

No. 35676.

Supreme Court of Mississippi

November 27, 1944

Suggestion of Error Overruled Dec. 22, 1944.

See 20 So.2d 95.

In Banc.

S. R King, of Durant, for appellant.

Greek L. Rice, Atty. Gen., by R. O. Arrington, Asst. Atty. Gen for appellee.

ROBERDS Justice.

Appellant Owen was indicted for, and convicted of, manslaughter in the killing of one Ollie M. Murphy, and sentenced to seven years in the state penitentiary, the jury having asked the mercy of the court.

It is strongly urged, among other contentions on this appeal, that there is no evidence to sustain the verdict and the case should be reversed and appellant discharged, but, if not that the verdict is against the overwhelming weight of the credible, believable evidence, and we should remand the case to be tried by another jury. The judges are divided on the first contention but are unanimous that the second should be sustained. A summary of the evidence will demonstrate, we think, ample justification for that conclusion.

Appellant and his wife operated a combination grocery store and cafe in the City of Kosciusko, Mississippi, located two blocks west of the main business section of the City. The building fronts northwest on old highway 12. To the rear and south of this building is located the residence of Mr. and Mrs. Owen. The backs of these buildings face each other and are some twenty yards apart, a walk-way connecting them. The main entrance to the store building is by a door at the north. This opens into a space about six feet wide and extending back south some fifteen feet. To the right of the door entrance is a counter extending from the north wall south some twelve feet, on the south end of which is a cash register. In front of this counter, on the east, are stools for use by customers when eating or drinking at the counter. To the right and west of this counter are groceries and soft drinks and equipment and space for keeping and serving them. In the west wall of the building is a window about opposite the cash register, and between the window and the cash register is an ice box. To the south of this is the kitchen. To the left or east of the front door is a partition about six feet high with an opening of about the same distance between the top of this partition and the ceiling. The south end of this partition is about opposite and six feet east of the cash register. At the south end of this partition is an opening into a large room on the east extending entirely across the building north and south. In this room are booths and tables for use in serving and consuming food. Some ten feet south of the end of the partition is a large post and near this post is located a music box. There is a door at the south end of the building.

The persons working at the Owen business, besides himself, were Mrs. Owen and three young ladies-Misses Mary Carlson and Ruth Norris, and Mrs. Viola Raspberry-ranging in age from eighteen to twenty-five at the time they testified at the trial. Miss Carlson was then eighteen and in the twelfth grade in high school, and was living in the Owen home, and apparently being reared by them. The husband of Mrs. Raspberry was in the armed forces.

On the occasion in question, Ollie Murphy and his friend Earl Benton showed up in an automobile at the Owen place of business between four and five o'clock in the afternoon. They were drinking rather freely. They had consumed at least one pint of whiskey and had just returned from Durant, some twenty miles distant, where they had obtained more whiskey, a part of which they yet had in their possession. They took seats at a table in the east room and called for soft drinks. As Miss Norris served them Murphy produced and placed upon the table a bottle of whiskey. Miss Norris explained to him that drinking of intoxicants was not permitted and asked him to desist from so doing. Murphy became very angry and, referring to the women as lewd persons, with an oath, said he would drink his whiskey when and where it suited him. Miss Norris sought Mrs. Owen, who was in the kitchen, for aid. Mrs. Owen came forward and asked Murphy and Benton not to drink explaining there were signs posted about the place asking customers not to do that. Murphy again in vile and abusive language denounced all the ladies present, declared his intention to drink and threatened violence to any one interfering with him. There was a soldier in uniform present. Mrs. Owen appealed to him for assistance and protection. This soldier succeeded in ejecting Murphy from the building through the front door, Murphy resisting by violent use of his hands and feet and cursing all of those present. No one knew the soldier. After ejecting Murphy he disappears from the drama. Murphy went to the west side of the building, where he obtained a large rock from a flower bed and threw it through the west window, breaking the screen and scattering glass about the premises, some of which went as far as the cash register. He was apparently trying to hit Mrs. Owen, who had gone to the ice box. However, the rock missed her. Mrs. Owen saw Murphy start back towards the north door. She and Mrs. Raspberry rushed to the door to close and lock it but Murphy beat them to it and pushed into the room. He had an open knife in his hand and he cut at the throat of Mrs. Raspberry, who turned and ran screaming through the south door towards the Owen residence. Murphy, threatening to kill "all of you sons of bitches," followed Mrs. Owen and Misses Carlson and Norris about the room, with the open knife in his hand, trying to cut them. Mr. Owen, who was...