Scott v. State
| Citation | 188 So. 546,185 Miss. 454 |
| Decision Date | 08 May 1939 |
| Docket Number | 33595 |
| Court | United States State Supreme Court of Mississippi |
| Parties | SCOTT v. STATE |
Suggestion Of Error Overruled May 22, 1939.
APPEAL from the circuit court of Newton county HON. D. M. ANDERSON Judge.
Tom Scott was convicted of manslaughter, and he appeals. Affirmed.
Affirmed.
W. I Munn, of Newton, for appellant.
If this is not a case of justified or justifiable homicide, we are unable to conceive of such a case. It certainly was the duty of the circuit court judge to have given a peremptory instruction in this case and we want this court to bear in mind that the two witnesses, Jessie Cunningham and Floyd Mosley were summoned as state witnesses, and according to their testimony and as shown by the stenographer's notes they were the only two witnesses to the homicide, and they told the district attorney how the killing occurred and yet the state did not use them as state witnesses and it became necessary for the appellant to use them on the trial of the case, and every witness in this case that testified, and there were five who testified for the state and two who testified for the appellant, and every one of them was summoned as state witnesses, and after a careful reading of the testimony one is convinced beyond doubt and beyond every reasonable doubt from the weight of the testimony taken as a whole that the appellant was justified in taking the life of the deceased, and for that reason this appellant should and ought to be acquitted because there is nothing in this record on which to base a conviction of either manslaughter or murder, and we respectfully submit this case ought to be reversed and the appellant discharged.
W. D. Conn, Jr., Assistant Attorney-General, for the State.
There appears to be a substantial conflict as to how this killing came about. In such case this conflict was for the jury and not for the court and we think the court properly allowed the case to go to the jury. The jury, under the evidence, could find that this was an unnecessary killing, and, since the jury has the right to accept the testimony of some of the witnesses in part and reject other parts and accept part of the evidence for the state and draw reasonable inferences therefrom and from all the evidence in the case, this court will not reverse a conviction upon the ground assigned here, unless the verdict of the jury cannot be held upon any view of the facts in evidence.
Woodward v. State, 178 So. 469; Triplett v. State, 159 Miss. 365, 132 So. 448.
Argued orally by W. I. Munn, for appellant, and W. D. Conn, Jr., for the State.
The appellant, Tom Scott, was indicted in the circuit court of Newton county for the murder of Richard McSwain, was placed on trial, convicted of manslaughter, and sentenced to serve a term of seven years in the state penitentiary; from which judgment he appeals here.
The only error complained of is that...
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