Pittman v. State, No. 47915

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtSUGG; All Justices concur except BROOM
Citation297 So.2d 888
PartiesLanell PITTMAN v. STATE of Mississippi.
Decision Date15 July 1974
Docket NumberNo. 47915

Page 888

297 So.2d 888
Lanell PITTMAN
v.
STATE of Mississippi.
No. 47915.
Supreme Court of Mississippi.
July 15, 1974.

Page 889

Singley & Morgan, Columbia, for appellant.

A. F. Summer, Atty. Gen. by Karen Gilfoy, Special Asst. Atty. Gen., Jackson, for appellee.

SUGG, Justice:

Lanell Pittman was convicted in the Circuit Court of Marion County for the murder of Enoch Watson and sentenced to serve a life term in the Mississippi State Penitentiary. Pittman's defense was that the homicide was justifiable under Mississippi Code Annotated section 97-3-15(f) (1972) in that he acted in necessary self-defense when he killed Watson.

The defendant and Watson had a previous difficulty on October 30, 1971 and as a result the defendant was severely injured requiring his hospitalization for more than a week. Watson was not tried on the indictment. Nineteen defense witnesses testified that the reputation of Watson in the community for peace and violence was 'real bad,' or that Watson had threatened to kill the defendant.

The homicide occurred at a rural store owned by Robert Henry Pittman on the morning of September 7, 1972. Defendant and his father, Bostick Pittman, went into the store of Robert Henry Pittman where Robert Henry Pittman and Otho Forbes were present. While the four men were seated near the rear of the store Watson entered the front door and the store owner made his way to a counter at the front of the store for the purpose of waiting on him. Watson obtained a Coca-Cola from a soft drink machine, returned to the counter and paid for a package of cigarettes that the store owner obtained for him. At this time Watson's back was turned toward the men in the rear of the store and it is at this point that the accounts given by the witnesses vary significantly.

Robert Henry Pittman testified that, as he handed Watson his change, the defendant approached from the rear, gun in hand; that the defendant opened fire when he was approximately 4 feet behind Watson who collapsed to the floor with 5 bullet holes in his back. Otho Forbes testified that when Watson entered the store the defendant concealed himself behind a wall. Forbes further testified that the defendant left his position behind the wall and approached Watson from the rear and commenced firing. He further testified that after Watson fell to the floor the defendant fired two or three more shots into Watson's prone body. Neither Forbes nor Robert Henry Pittman saw Watson make any movement with his hands or otherwise that could have provoked the defendant's attack.

The defendant testified in his own behalf and stated that he heard a truck approach the store and saw Watson standing outside the store with a sawed-off shotgun. When Watson entered the store he did not have the shotgun. Watson asked for cigarettes, walked to the soft drink machine, and turned around and glared at him. The defendant said that when Watson returned to the counter, he started walking toward the front of the store intending to leave in order to avoid any trouble; that as he approached Watson, Watson 'went to his

Page 890

pocket' and the defendant then started shooting. The defendant's father, Bostick Pittman, testified that as he and the defendant were attempting to leave the store Watson 'cut his eyes' and 'went to his picket' whereupon the defendant shot him.

One of the assignments of error is as follows:

The court erred in refusing appellant's instruction number 1 and overruling appellant's motion for a news trial and overruling appellant's motion for a judgment notwithstanding the verdict for the reason that the evidence in this case is not sufficient to sustain a conviction and the verdict of the jury is against the overwhelming weight of the evidence and evidences bias, passion and prejudice.

The peremptory instruction requested by the defendant was properly refused and the evidence was sufficient to make a jury question on the charge of murder. We therefore hold that this assignment of error is not well taken.

Defendant also assigns the following as error:

The court erred in failing to sustain appellant's motion for a mistrial made during the voir dire examination of jurors, which objection was made to a statement of the District Attorney that the State of Mississippi did not have to prove that the appellant did not shoot in self-defense, and the court's agreeing with the statement in the presence of the entire jury panel, and further, that the court erred in sustaining objection of the State of Mississippi made during the court (sic) of defense counsel's argument to the jury and stated outloud in the presence of the jury, 'Well, it is not a burden on the State to prove.'

This assignment of error raises questions that occurred at two different times during the trial. The first was on voir dire of the jury and the second during the closing argument.

When defendant's attorney was questioning the prospective jurors the following transpired:

BY MR. SINGLEY:

Now ladies and gentlemen, if this defendant does not take the witness stand and if the State of Mississippi fails to prove to you from the evidence up here (indicating witness chair) beyond a reasonable doubt that this defendant did not shoot in shelf (sic) defense will you vote to acquit him?

BY MR. DANTIN:

This is on the record. Awhile ago counsel said in other words the State had to prove that he did not shoot in self defense. I simply made the statement and I make it again I do not think that it is a proper statement of the law and when the right of self defense is asserted by the defendant then he must move with proof.

BY THE COURT:

I said the court agreed with that statement of the law and Mr. Singley has asked a question similar in structure to that asked before but which I think is proper as asked at this time so let the record show those statements were made and Mr. Dantin did make the statement before that he has just made at this time and the court agreed that statement is proper but will allow the jury to respond to Mr. Singley's last question.

BY MR. SINGLEY:

I want to make a motion for mistrial on that point.

(JURY RETIRES)

BY MR. SINGLEY:

I just want the record to show that those statements or substantially those same statements were made prior to the record being made in the presence of the jury. Is that a correct statement?

Page 891

BY THE COURT:

Let the record show the same statements just made into the record were made in the presence of the jury and let the motion for a mistrial be OVERRULED.

Defendant contends that the jury was told that the burden of proving self-defense rested on him. His contention, stated differently, is that the burden of proof shifted to him. It is elementary that the burden of proof never shifts from the State in a criminal case. Hosey v. State, 136 Miss. 5, 100 So. 577 (1924); Hampton v. State, 99 Miss. 176, 54 So. 722 (1911) and cases annotated under Criminal Law k327,...

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51 practice notes
  • Mitchell v. State, No. 1998-DP-01785-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • March 29, 2001
    ...applicable to the facts developed in the case being tried. Lancaster v. State, 472 So.2d 363, 365 (Miss.1985) (citing Pittman v. State, 297 So.2d 888, 893 (Miss.1974)). To grant an instruction that is not supported by the evidence would be error. Walker v. State, 740 So.2d 873, 888 (Miss. 1......
  • White v. State, No. 57448
    • United States
    • United States State Supreme Court of Mississippi
    • August 3, 1988
    ...the claim was not properly preserved for appellate review). See also, ratliff v. State, 313 So.2d 386 (Miss.1975); Pittman v. State, 297 So.2d 888 (Miss.1974); and Myers v. State, 268 So.2d 353 VI. Prosecutorial misconduct. White contends that the prosecution did not conduct itself fairly d......
  • Gray v. State, No. 96-DP-00241-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • August 6, 1998
    ...case supported his proposition. We can only presume Gray wishes to direct the Court's attention to the rule stated in Pittman v. State, 297 So.2d 888, 893 (Miss.1974), that holds instructions are only to be given where they are applicable to the facts developed in the case. Wadford, 385 So.......
  • Walker v. State, No. 92-DP-00568-SCT
    • United States
    • Mississippi Supreme Court
    • October 12, 1995
    ...this claim fails. Cannaday v. State, 455 So.2d 713, 719 (Miss.1984); Ratliff v. State, 313 So.2d 386 (Miss.1975); Pittman v. State, 297 So.2d 888 ALBERTA LYONS This potential juror was excused with the trial court commenting that her responses to voir dire indicated "that she would move fro......
  • Request a trial to view additional results
51 cases
  • Mitchell v. State, No. 1998-DP-01785-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • March 29, 2001
    ...applicable to the facts developed in the case being tried. Lancaster v. State, 472 So.2d 363, 365 (Miss.1985) (citing Pittman v. State, 297 So.2d 888, 893 (Miss.1974)). To grant an instruction that is not supported by the evidence would be error. Walker v. State, 740 So.2d 873, 888 (Miss. 1......
  • White v. State, No. 57448
    • United States
    • United States State Supreme Court of Mississippi
    • August 3, 1988
    ...the claim was not properly preserved for appellate review). See also, ratliff v. State, 313 So.2d 386 (Miss.1975); Pittman v. State, 297 So.2d 888 (Miss.1974); and Myers v. State, 268 So.2d 353 VI. Prosecutorial misconduct. White contends that the prosecution did not conduct itself fairly d......
  • Gray v. State, No. 96-DP-00241-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • August 6, 1998
    ...case supported his proposition. We can only presume Gray wishes to direct the Court's attention to the rule stated in Pittman v. State, 297 So.2d 888, 893 (Miss.1974), that holds instructions are only to be given where they are applicable to the facts developed in the case. Wadford, 385 So.......
  • Walker v. State, No. 92-DP-00568-SCT
    • United States
    • Mississippi Supreme Court
    • October 12, 1995
    ...this claim fails. Cannaday v. State, 455 So.2d 713, 719 (Miss.1984); Ratliff v. State, 313 So.2d 386 (Miss.1975); Pittman v. State, 297 So.2d 888 ALBERTA LYONS This potential juror was excused with the trial court commenting that her responses to voir dire indicated "that she would move fro......
  • Request a trial to view additional results

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