Russell v. State
| Decision Date | 09 December 1935 |
| Docket Number | 31802 |
| Citation | 164 So. 582,174 Miss. 333 |
| Court | Mississippi Supreme Court |
| Parties | RUSSELL v. STATE |
1 HOMICIDE.
Evidence sustained conviction for manslaughter.
2 HOMICIDE.
In murder prosecution, evidence of alleged threats made by defendant against deceased between first encounter in restaurant and subsequent fatal encounter in beer parlor held admissible.
3. CRIMINAL LAW.
Verdict of manslaughter on conflicting evidence as to whether deceased was shot by defendant in self-defense, or in heat of passion, held not erroneous as manifesting compromise verdict.
APPEAL from the circuit court of Yazoo county HON. JULIAN P. ALEXANDER, Judge.
Bob Russell was convicted of manslaughter, and he appeals. Affirmed.
Affirmed.
Barbour & Henry, of Yazoo City, for appellant.
The compromise verdict has eliminated premeditated murder. Therefore, the issue before this court is whether the defendant shot and killed in the heat of passion or whether he shot in self-defense. The jury has said that there was no premeditation and that there was no self-defense, that the defendant shot and killed in the heat of passion. There was no testimony of any single witness that the defendant was doing anything whatever prior to the shooting indicating that he was acting in the heat of passion.
Richardson v. State, 123 Miss. 233.
We are aware that this court has held where a case shows clearly that a defendant is guilty of murder, even though there is no manslaughter in the case, the defendant cannot complain of a manslaughter instruction or a conviction of manslaughter. In this case, however, there is no element of murder, and certainly it does not clearly appear that the defendant is guilty of murder when every witness swore that the deceased was in a place of safety and that all he had to do was continue to walk across the sidewalk and get into his car and leave, but that he himself opened up the difficulty by cursing the defendant and inviting him out at a time when he, the deceased, was armed with a pistol.
The verdict was contrary to the overwhelming weight of the evidence.
According to authorities where there is a close question as to who is the aggressor any testimony which throws light upon the state of mind of the two adversaries is admissible.
Clark v. State, 123 Miss. 147, 85 So. 188.
J. G. Holmes and Wise & Bridgforth, all of Yazoo City, for the state.
In determining the propriety of the refusal of the trial court to direct a verdict of not guilty, the evidence tending to prove guilt must be considered most favorably to the state, and every material fact proved, either directly or by reasonable inference, tending to show the defendant's guilt, must be taken as true.
Columbia Mut. Life Ins. Co. v. Gunn, 163 So. 454; Redwine v. State, 149 Miss. 741, 115 So. 889; Justice v. State, 170 Miss. 96, 154 So. 265; Felder v. State, 108 Miss. 580, 67 So. 56; Thomas v. State, 129 Miss. 332, 92 So. 225.
We respectfully submit that the testimony introduced on behalf of the state in this case is competent, reasonable, and convincing, and if conceded to be true, as it must be on the question of the peremptory instruction, the trial court committed no error in refusing the instruction, and in view of the finding of the jury, this court will not disturb the verdict, notwithstanding a conflict in the evidence, which was raised alone by the appellant's own testimony.
Thomas v. State, 129 Miss. 332, 92 So. 255.
Where a defendant is charged with homicide, general threats made by him shortly before the killing are competent as showing general malice and a purpose to kill someone.
Huddleston v. State, 134 Miss. 382, 98 So. 839; Hopkins v. Commonwealth, 50 Pa. St. 9, 88 Am. Dec, 518; State v. Feeley, 194 Mo. 300, 92 S.W. 663, 112 Am. St. Rep. 511, 520.
As the peremptory instruction asked by the accused was properly refused, he cannot complain of a manslaughter instruction, for where the evidence for the state would warrant a conviction of murder, the defendant cannot complain of such an instruction.
Blalock v. State, 148 Miss. 1, 113 So. 627.
W. D. Conn, Jr., Assistant Attorney-General, for the state.
Mere words, however insulting and opprobrious, without any overt act indicating a present intention to do any great bodily harm, do not make the author of those words "an aggressor in a murderous assault."
James v. State, 139 Miss. 521, 104 So. 301; Richardson v. State, 123 Miss. 232, 85 So. 186; Lee v. State, 167 Miss. 150, 148 So. 627; Molphus v. State, 124 Miss. 583, 87 So. 133; Callas v. State, 151 Miss. 617, 118 So. 447.
If there is any substantial, reasonable testimony, which, conceding it is true, sustains the case of a party, the peremptory instruction should not be granted against such party.
Justice v. State, 154 So. 265; Redwine v. State, 149 Miss. 741, 115 So. 889; Pruitt v. State, 163 Miss. 235, 140 So. 683; Boutwell v. State, 165 Miss. 16, 143 So. 479.
We submit that an unlawful homicide has been shown. We may eliminate from consideration refused instruction to find the defendant not guilty of murder. Since the jury has convicted defendant of manslaughter, we must presume that he was not prejudiced by this refusal of the trial court.
Edwards v. State, 124 So. 764; Thomas v. State, 124 So. 766; Daniels v. State, 136 So. 725; Gregory v. State, 118 So. 906.
Taking defendant's testimony, which shows an overt act, it only seems to make a conflict in the testimony and that is the only reason for a jury in any event, to settle disputed questions of fact.
Evans v. State, 159 Miss. 561, 132 So. 563.
Whether one is guilty of murder of manslaughter, the jury has a wide discretion where the quality of the act is in issue. Under such circumstances, the court will not reverse a conviction for manslaughter.
Woodward v. State, 130 Miss. 611, 94 So. 717; Triplett v. State, 159 Miss. 365, 132 So. 448; Hall v. State, 128 Miss. 641, 91 So. 397; Redwine v. State, 115 So. 889.
Argued orally by W. A. Henry, for appellant, and by W. D. Conn, Jr., for the state.
Bob Russell, appellant, was indicted in the circuit court of Yazoo county for the murder of Josh Oakes, tried and convicted of manslaughter, and sentenced to serve a term of seven years in the state penitentiary, from which this appeal is prosecuted.
It appears from the evidence that on the day of the killing which was Sunday, the appellant went into a restaurant where a number of persons were present, among whom was Josh Oakes; that one of the parties therein stated, in substance, that the more they came the uglier they were, and suggested that they throw "Big Bob Russell" out, whereupon Russell used an opprobrious epithet, highly insulting, and stated that neither of them, nor any one else, could throw him out. Thereupon, Oakes, who had not taken part theretofore in that conversation, walked up to Russell and asked him if he meant him (Oakes) by the epithet used, and, according to some of the state's witnesses, Russell stated that they were all what the epithet indicated. That, thereupon, the owner of the restaurant put the parties out, stating that he did not want any disturbance. Later, Russell went into another restaurant, or beer parlor, called the "Red Chicken," and while in this beer parlor Oakes came up having the appearance of being somewhat intoxicated, and took the appellant and another by the neck, or put his arms around their...
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