Ross v. State
| Decision Date | 03 November 1958 |
| Docket Number | No. 40941,40941 |
| Citation | 106 So.2d 56,234 Miss. 309 |
| Parties | Andy ROSS v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
William S. Turner, Aberdeen, for appellant.
Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., for appellee.
Appellant, Andy Ross, was indicted for and convicted of manslaughter, in the Circuit Court of Monroe County. He contends he was entitled to a peremptory instruction. Appellant asked for a directed verdict after the State had closed its case. It was denied, and he then introduced two witnesses. After that he did not ask for a peremptory instruction. It is well settled that a defendant waives his motion for a directed verdict made after the State's case, where he then introduces evidence in his behalf. Kearney v. State, 1955, 224 Miss. 1, 79 So.2d 468; Illinois Cent. R. R. Co. v. Perkins, 1955, 223 Miss. 891, 915, 79 So.2d 459. However, the verdict is not against the great weight of the evidence, but in fact is amply supported by it.
The killing occurred on February 27, 1958. Ross and Penny Ryan were neighbors, and had been carrying on a running argument for several years about a fence line between their respective properties. Late that morning Ryan came to defendant's house, and defendant invited him in. Ross did not testify, but, according to a written statement of the occurrence, which he gave officers, Ryan said he had come to talk about the fence line. Defendant stated that Ryan began cursing, because he would not go with Ryan to look at the fence. Defendant picked up a shotgun, and his wife came between them and started pushing Ryan toward the front door. She ushered him almost out of the door, but Ryan was in the doorway holding the screen door, while defendant was standing inside with his shotgun at hip level. Defendant's statement recites that Ryan 'tried to grab my gun and I stepped backward two steps and then shot him * * *.' A single shot in the left breast was fatal.
Although appellant did not testify, he claims that this written statement and similar oral statements which he made to the officers demonstrate that he was acting in necessary self-defense, to prevent an imminent and immediate threat to him of great bodily harm or death. He relies upon the rule in the Weathersby case, namely, that where the defendant or his witnesses are the only witnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the State, or by physical facts or facts of common knowledge. Weathersby v. State, 1933, 165 Miss. 207, 147 So. 481. This rule would seem to presuppose that the defendant or his eyewitnesses testify. Neither Ross nor his wife, who also was present, testified. However, assuming defendant's written and oral statements, which were introduced in evidence, constitute the eyewitness testimony required by Weathersby, the jury had the right to conclude from appellant's own statements that he was not threatened with any imminent or immediate danger, and that, in attempting to eject Ryan from his home, he used an unreasonable and excessive force.
Moreover, the jury could consider also other testimony which contradicted in material particulars defendant's own statements. Ryan had no weapon in his hands when he was shot. There was a small, unopened pocket knife in his right pocket. Ross told officers when they arrived that the trouble happened over a landline dispute. He stated to the sheriff that Ryan had not threatened him in any way, verbally or physically, and had not pulled his knife or threatened to pull his knife, or showed any signs of violence. Mrs. Walker, who lived next door and east of defendant's home, did not see any of the events prior to the shooting, but she looked out of her kitchen window and saw Ryan falling backward with his hands up in the air. Another witness stated, that on the day before the shooting, he was talking with defendant, who referred to his fence-line argument with Ryan, and who said that he intended to keep his land, 'and if somebody tried to take it away from me he's going to get a lot of shot.'
This evidence and other circumstances in the record amply justified the jury in concluding that Ross killed Ryan in the heat of passion without malice, without authority of law and not in necessary self-defense. The outlined testimony contradicts defendant's version of the shooting. Resolution of the issues was for the trier of fact.
The trial court at first erroneously overruled appellant's motion for a special venire, but thereafter set aside that order. Miss.Code 1942, Sec. 2505. The court's order then recited that, after it offered to direct the drawing of a special venire, defendant withdrew his motion for one and announced ready for trial. So defendant cannot complain now that he did not obtain a special venire.
The trial court was...
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...mental attitude toward the victim become especially important. Bailey v. State, 41 Ala.App. 39, 123 So.2d 304 (1960); Ross v. State, 234 Miss. 309, 106 So.2d 56, 58 (1958); People v. Hall, 27 Cal.App.2d 440, 81 P.2d 248, 250 III. A psychiatrist testified that within a reasonable degree of m......
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...order to preserve it, the appellant must renew his motion for a directed verdict at the conclusion of all the evidence. Ross v. State, 234 Miss. 309, 106 So.2d 56 (1958); Fields v. State, 293 So.2d 430 (Miss.1974). Also see State v. Russell, 358 So.2d 409, 413 (Miss.1978).The appellants wai......
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