Riley v. State

• Decision Date: 04 November 1963
• Docket Number: No. 42468,42468
• Citation: 248 Miss. 177,157 So.2d 381
• Parties: J. W. RILEY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 381

157 So.2d 381

248 Miss. 177

J. W. RILEY v. STATE of Mississippi.

No. 42468.

Supreme Court of Mississippi.

Nov. 4, 1963.

Guy N. Rogers, Tupelo & Jackson, W. P. Mitchell, Tupelo, for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.

JONES, Justice.

In the Circuit Court of Lee County appellant was indicted for murder, convicted of manslaughter, and sentenced to twelve years in the penitentiary. We think the conviction should be, and it is, affirmed.

Appellant says the lower court erred (1) in not granting a mistrial because of alleged prejudicial argument by the district attorney; (2) in allowing the State to reopen after both sides had rested and to offer additional evidence; (3) in granting the instruction authorizing conviction of manslaughter; and (4) in overruling appellant's motion for a new trial on the ground that the verdict was against the overwhelming weight of the evidence.

It would appear that both defendant and the deceased were engaged in bootlegging. They were married to sisters. The State's evidence showed that sometime in the early morning of January 6, 1962, at approximately 12:30 or 1:00 A.M., Mr. Bolin Kidd was awakened by gun shots coming from the west of his house. He lived about one mile west of Shannon, about 150 or 250 yards north of the Pontacola Road. His house faced south. He and his family were asleep when, as stated, he was awakened by these gun shots. He got up and opened the door, and when he did he saw Grubbs in front of his house with his hands above his head; the appellant was facing him with a shotgun held about hip high, with his left hand on the gun. The evidence showed that appellant was left-handed. The deceased, Grubbs, said, 'Mr. Kidd, don't let him shoot me; he is fixing to shoot me.' Kidd remonstrated with appellant, asking him not to shoot, but appellant just stood there for a minute or so, then he lunged toward Grubbs and shot him. He shot him while Grubbs' hands were still raised over his head and empty. From this shot, Grubbs died.

Mr. Kidd's son was near Grubbs at the time, and Carl Murphy, Jr., who had come to the scene with Riley, knocked him down. Then Murphy and appellant backed around to the pickup truck. There was a car in the driveway with its lights burning. This car was west of the house, headed toward the house.

Mr. Kidd, whose testimony was as stated, was corroborated to a great extent by his wife. While she did not see the actual shooting, she heard the guns which awakened Kidd, and heard the conversation outside.

The State also introduced Grady Gable who worked for deceased at his place near Tupelo. He said Grubbs left his place and later called by phone. Witness answered the phone and was told to call Billie Rex Kidd, another employee. He did so and Kidd said Grubbs wanted them to come down and help protect him to get back home. He and Billie Rex Kidd went to Ma Edwards' place, another bootleg place, and Grubbs was there. They carried a shotgun and a pistol with them. After they arrived at the Edwards' place, they got in a pickup truck and started home. Witness did not know of his own knowledge why they had the guns except that witness was told to 'help get me home.' Grubbs was driving the truck, and when it started pulling out a car followed them. They turned in at Mr. Bolin Kidd's house and the car also turned. Witness said he did not know who was following them. The truck pulled into Mr. Kidd's yard and stopped by the house near the east end of the porch; the car stopped near the west end of the driveway. When the pickup truck stopped, Grubbs and Gable got out, and started running, and someone hollered, 'You better stop.' Witness said they ran behind the house and 'they' started shooting. Witness and his companions went around one corner of the house and appellant came around the other way. When back of the house, witness said 'He swung at me and I fell.' Then Grubbs turned and went the other way, the appellant followed. Witness did not immediately get up but said he heard them around the front of the house, heard the mumbling going on, and then heard a gun shot. He stayed where he was until somebody in the car said, 'Let's go,' and the car left. After they left, he walked around and saw Grubbs, who told him, 'They shot me.'

There is a sharp conflict in the evidence on the vital point of the shooting. Defendant and his witnesses testified that they drove up to Ma Edwards' place; that Grubbs was there beside the truck and made a motion to them to follow him. They did follow the pickup truck and said when they got out of the car, someone in front of the truck was shooting at them. Carl Murphy was shot in the leg. Then they testified that J. W. Riley, appellant, picked up a gun from the back of his car and went around Kidd's house. He finally came upon Grubbs and Kidd standing in front of the truck. With his gun, he made them drop their guns, and while he was standing there telling Grubbs not to come closer, Mr. Kidd appeared at the door, and when Grubbs said something to Mr. Kidd, appellant turned his head toward him, and thereupon Grubbs lunged and caught the gun, causing it to discharge and kill him.

The State made out a case of murder and the defense was that the actual shooting itself was accidental. On cross-examination, David Scott, a witness for defendant, was asked whether or not approximately three months before this shooting, when he, Emmett Pickering, Imogene Cason, J. W. Riley and Grubbs, were at Grubbs' house, if he, Scott, didn't put a gun on Grubbs and tell him that if he did not buy all his whiskey from him that he was going 'to put him in ashes', and turned around and asked J. W., 'Isn't that right?' J. W. answered, 'yes.' The witness denied that any such thing had happened. Defendant's witnesses all claimed there was no trouble between Riley and Grubbs or them and they had not talked about doing him any harm, and had no reason to do him any harm.

On cross-examination, appellant was asked about the same conversation hereinbefore mentioned as having been asked of Scott, and appellant denied that it occurred. The appellant was also asked whether two or three days before this killing he saw Charles McBride at the 78-Fruit Stand, and told him that his brother-in-law (Grubbs) was a 'son-of-a-bitch, and you had a score to settle with him, and you were going to get him when you saw him.' Appellant answered that he did not.

After both sides had rested, the following testimony was offered. The State argued that it was in rebuttal. Defendant argued that it was evidence in chief and would not be admissible in rebuttal. After some discussion the court permitted the State to reopen the case and put this evidence in the record. Emmett Pickering was introduced and testified to the statement by Scott at Grubbs' house which had been denied by Scott. Charles McBride was then introduced and testified to the occurrence at the 78-Fruit Stand, which had been denied by J. W. Riley.

After the last of these witnesses had testified, the defendant's counsel asked the court to indulge them a few minutes in order that they might see if they had any further proof. A short recess was taken and following the recess, the attorneys for defendant announced that defendant rested.

On the first assignment of error, the special bill of exceptions states that the district attorney, in his closing argument, made a statement to the jury, in substance, to the effect that defendant had prior to this trial applied for and had a hearing by way of habeas corpus to be granted bond, and that at said hearing bond pending trial was denied. The bill of exceptions states that objection thereto was made and that the court instructed the jury to disregard the statement, but overruled the motion for a mistrial. It is also alleged that the district attorney repeated words of the same substance, to which objection was promptly made, and the court again instructed the jury to disregard it, but a motion for mistrial was overruled.

On direct examination of the defendant by his own counsel, the following questions and answers were made and given:

'Q. I will ask you to tell the court and jury after James Grubbs was killed where you have been.

'A. After he was killed?

'Q. Yes, sir, have you been at liberty?

'A. No, sir.'

Objection was made and sustained, and then the following occurred:

'Q. Are you now in jail, Mr. Riley?

'A. Yes, sir.'

Again objection was made and the court said, 'Go ahead,' and the examination by defendant's own counsel continued.

'Q. Have you been in jail since this accident occurred?

'A. Yes, sir.

'Q. Have you been denied bond?

'A. Yes, sir.'

It would seem that when the argument attacked was made, there was evidence of such facts in the record, and as was said by this Court in Nelms & Blum Co. v. Fink, 159 Miss. 372, 131 So. 817: 'Counsel necessarily has, and must have to serve his function and office, a wide field of discretion. He may comment upon any facts introduced in evidence. He may draw whatever deductions seem to him...