Rester v. State
| Decision Date | 06 March 1916 |
| Docket Number | 18284 |
| Citation | 110 Miss. 689,70 So. 881 |
| Court | Mississippi Supreme Court |
| Parties | RESTER v. STATE |
APPEAL from the circuit court of Pearl River county. HON. N.E WEATHERSBY, Judge.
Tom Rester was convicted of manslaughter and appeals.
The facts are fully stated in the opinion of the court.
Reversed and remanded.
Parker & Shivers, for appellant.
Lamar F. Easterling, Assistant Attorney-General, for the state.
OPINION
Appellant together with one Roy Davis, was indicted by the circuit court of Pearl River county for the murder of one Sol Ladner, tried and convicted of manslaughter. The homicide occurred August 28, 1914, on the public highway near the east end of a little bridge across "Alligator creek" seven or eight miles east of the town of Poplarville. It appears that on the day of the difficulty the deceased, in company with his relatives, R. Ladner and Aaron Ladner, had been fishing on Alligator creek from about eight o'clock in the morning to somewhere between twelve and one o'clock; the deceased being engaged in shooting fish on this occasion by the use of what is termed a high-pressure rifle that projects with great force a steel bullet, and his associates using the hook and line. The deceased had spent the preceding night with his uncle, R. Ladner, the principal state witness in this case, and this fishing party took with them that morning a quart of alcohol which they diluted to some extent with water and sugar, and which they drank freely during the forenoon. Appellant on the morning of the difficulty left his home in Poplarville, as he says, to go to the home of one Tom Lee to consummate a deal for a pair of mules. Appellant took with him an automatic shotgun, and when in about a mile of the scene of the homicide he met with one Leroy Davis, who accompanied appellant on his journey. It is appellant's contention that he left his mule at the home of George Davis at the suggestion of Leroy and proceeded on foot in company with Leroy Davis in order that they might hunt turkeys as they went and came.
Bad blood existed between appellant and the deceased, and it appears that threats had been freely uttered by the deceased and communicated to appellant for a long time before the killing. This bitter feeling had existed to the extent that about a month prior to the killing the deceased, armed with a shotgun, waylaid appellant by stationing himself in a thick clump of what is known as gallberry bushes; but his presence and position were discovered by appellant, who, being also armed, threw his gun upon the deceased, and under the startling circumstances of this near tragedy discussed his trouble with deceased, and told him that, if he (deceased) would promise to go about his business and make no further demonstration and attempt to take the life of appellant, he (appellant) would not kill him or give him any trouble. There is evidence, however, that after both departed they gave conflicting versions of this near tragedy, some of the witnesses testifying that deceased stated the only reason he did not kill appellant on this occasion was that appellant was too quick for him, and other witnesses for the state testifying that appellant reported that the only reason he did not kill deceased was that his gun was tricky, and he was afraid to risk it. There is no evidence that appellant knew that the deceased was fishing on this creek the day of the homicide or that he expected to encounter the deceased on that occasion. The main state witness, R. Ladner, was a cousin of the deceased, the father-in-law of appellant, also distantly related by blood to appellant. One witness testifies that the deceased, familiarly referred to as "Uncle Sol," sought to induce one John Ladner to kill appellant together with one Davis. It appears further that the younger Ladner, Aaron, who carried the wallet containing the fiery refreshment, was so badly intoxicated at the time of the shooting that he could not be used as a witness in this case. At the point where the bridge crosses Alligator creek, the creek runs north and south, and the public, highway east and west. The fishing party had been up the creek that morning, and in returning, according to the testimony for the state, the two Ladners arrived at the bridge in advance of the deceased, and found appellant and his companion standing together at the east end of the bridge. The evidence is conflicting, however, on this point; appellant testifying that the two Ladners were already at the bridge when he and Mr. Davis arrived that far on their journey. R. Ladner, appellant, and Leroy Davis were engaged in conversation, when, according to the testimony of the only state witness attempting to detail the facts, appellant threw his gun quickly to his shoulder and fired five times as rapidly as he could shoot his automatic shotgun, which carries its cartridges in a a magazine and expels the empty shells as it shoots. R. Ladner says, when appellant began firing, he was standing facing south and therefore had his back turned toward the direction in which appellant shot. He says he turned his head, however, and looked up the creek and saw the deceased sinking to the ground about twenty-six steps north and east of the creek; that immediately after appellant fired the five shots his companion, Roy Davis, took cover under a pine tree standing between him and the deceased and fired once upon the deceased, exclaiming at the same time, "I got him," or words to that effect; that thereupon the witness heard appellant working his gun, and he turned and saw appellant advancing several steps toward the deceased and fire twice more; that at that time deceased was prostrate and dying. This witness did not see the deceased at all at the time appellant commenced firing. The exact testimony on this point is as follows:
This witness admits he had been drinking, but denies being drunk. There is some testimony to the effect that he was intoxicated several hours after the homicide.
Appellant took the witness stand in his own behalf, disclaimed any knowledge that he expected to meet the deceased on that day, denied being armed for the purpose of killing the deceased, claimed he and his companion were on a lawful journey to transact business and hunt turkeys, and contradicted some of the material statements of the state witness as to what happened at the time of the fatal encounter. He says he was sitting on the east side of the creek on a grassy knoll facing west when he suddenly beheld the deceased coming through the woods down the creek with his high power rifle, and that deceased, on seeing appellant, threw his rifle from his shoulder in a shooting position, when he (appellant) threw his shotgun to his left shoulder and began firing rapidly. His testimony, if believed, makes out a clear case of self-defense.
There was testimony on the part of the state from the sheriff and his deputy that they went to the scene of the homicide some four or five hours after the killing and found deceased lying with his head down the creek, his right hand near the trigger guard of his rifle, his left arm just to the left of the barrel, but the rifle was on safety. The defense objected to the statement of the sheriff that the rifle was on safety, for the reason that too great time had elapsed between the time of the shooting and the time the sheriff's posse arrived. This testimony was admitted over the objection of appellant. There is no testimony that the deceased ever fired his rifle.
Appellant attempts to justify the charge of the state witness that he fired upon the deceased after he was prostrate and dying by testifying that after the deceased fell to the ground he raised up on his knees, attempting to get his gun into action, and there is evidence to the effect that some of the shot entering the chest of the deceased ranged or slanted downward. There is evidence that the back of the left hand and arm of the deceased was literally filled with shot, and the defense contends that these shot could not have entered the back of the hand and arm and in the pit of the arm unless the deceased had his gun in a shooting position, attempting to shoot from the right shoulder, as he was accustomed to do. All of the shot struck the deceased on the left side of his head and chest. Most of these shot were small shot, but a few of them were what is known as buckshot.
On the trial of the case the court, at the request of the district attorney, gave two instructions in reference to the charge of murder, and in addition gave the following instruction as to the verdicts it might return, to wit:
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Calicoat v. State
...by the evidence, to be prejudicial error are: Virgil v. State, 63 Miss. 317; Parker v. State, 102 Miss. 113, 58 So. 978; Rester v. State, 110 Miss. 689, 70 So. 881. cases holding the contrary rule that such an instruction is harmless error because favorable to the accused are: Rolls v. Stat......
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Dean v. State
... ... 897; Erwin v. State, 123 ... Miss. 139, 85 So. 183 ... In a ... prosecution for homicide, it is always permissible for ... witnesses to describe the scene of the alleged difficulty as ... it might throw considerable light on the matter being ... inquired into ... Rester ... v. State, 110 Miss. 689, 70 So. 881; Callicoat v ... State, 131 Miss. 169, 95 So. 318; Young v ... State, 150 Miss. 787, 117 So. 119; Davis v ... State, 154 So. 304, 170 Miss. 78; Harper v. State, 83 ... Miss. 402, 35 So. 572 ... The ... court cannot control the order ... ...
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Dean v. State
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