Pulpus v. State

• Court: Mississippi Supreme Court
• Writing for the Court: TRULY, J.
• Citation: Pulpus v. State, 84 Miss. 49, 36 So. 190 (Miss. 1904)
• Decision Date: 14 March 1904
• Parties: AUSTIN PULPUS v. STATE OF MISSISSIPPI

36 So. 190

84 Miss. 49

AUSTIN PULPUS v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

March 14, 1904

FROM the circuit court of, first district, Chickasaw county. HON EUGENE O. SYKES, Judge.

Pulpus appellant, was indicted jointly with Alexander Pulpus and Arthur Orr for the murder of one George Anderson. A severance was granted and appellant was separately tried, convicted and sentenced to be hanged, from which conviction and sentence he appealed to the supreme court--the first appeal The supreme court reversed the conviction and awarded a new trial. See Pulpus v. State, 82 Miss. 548.

Upon the remand of the case to the court below appellant was again separately tried and convicted of murder and a second time condemned to death. From this second conviction he took the present appeal.

On the day before the killing, Austin Pulpus, Isaiah Gillespie, and others were ditching for Joseph Randall. George Anderson deceased, went to where they were engaged, and got into a difficulty with Austin Pulpus, appellant, and struck him over the head with a spade. On the day of the homicide, Alexander Pulpus, Austin Pulpus, Arthur Randall, Theodore Wilson, and James Wilson went to Joseph Randall's house, where George Anderson was at work, and got Randall to go with them to measure up the ditches that had been completed. Each of them had rabbit sticks. These parties afterwards came back by Randall's house, and Austin Pulpus and George Anderson got into a difficulty, and Anderson was killed by Pulpus. On the trial the state was allowed to prove, over defendant's objection, that appellant and Isaiah Gillespie were at Lundy Smith's store the day before the killing, and appellant asked for some pistol cartridges. Appellant tried to have Gillespie explain how and why he happened to be at Smith's store with him, but was not allowed to do so. The state also proved, over defendant's objection, that on the morning of the homicide his companions were armed with sticks, and that these sticks were deadly weapons, and were capable of inflicting great bodily harm and that some of them participated in the homicide.

Reversed and remanded.

Gilleylen & Leftwich, and T. J. Buchanan, for appellant.

That defendant is not guilty of murder under the facts of this case, was fully decided by this court on the former appeal. That is, res adjudicata, for the state's evidence is substantially the same as it was at the former trial and the defendant's much stronger.

The state's persistent and ineradicable theory, totally unsupported by the competent evidence both at the former trial and this one, was that there was a deep-dyed and malignant conspiracy between some negro boys, Austin Pulpus, Alexander Pulpus, Arthur Orr, Theodore Wilson and James Wilson to kill George Anderson. This court found on the former record that there was no conspiracy, but with that ruling overturning the very foundation of the case as a case of murder, the court below erroneously held several pieces of evidence to be competent.

The court below erred in allowing the district attorney, over defendant's objection, to ask Joseph Randall about Isaiah Gillespie, Alexander Pulpus, Arthur Orr, Jesse Wilson, Theodore Wilson and James Wilson being at Joseph Randall's house with defendant on the morning of the day of the difficulty and before the difficulty occurred, and about their having rabbit sticks with them, and as to what rabbit sticks were, and as to their standing around and talking to George Anderson, deceased.

The court below erred in allowing the district attorney to ask Lundy Smith about Isaiah Gillespie being with Austin Pulpus at his store the evening before the difficulty to buy cartridges, and in refusing to allow defendant to prove by Isaiah Gillespie when he came on the stand why he went there and when and where he and Austin Pulpus had been.

The court below erred in allowing the district attorney to prove by Bettie Randall, over defendant's objection, that Alexander Pulpus and Arthur Orr threw rabbit sticks at George Anderson, deceased, and that those same parties had been at Joseph Randall's that morning before the killing, there being no evidence of a conspiracy.

J. N. Flowers, Assistant Attorney General, for appellee.

If the record now before the court had been presented on the former appeal...