Shelton v. State

• Decision Date: 24 February 1930
• Docket Number: 28435
• Court: Mississippi Supreme Court
• Parties: SHELTON v. STATE

126 So. 390

156 Miss. 612

SHELTON v. STATE

No. 28435

Supreme Court of Mississippi

February 24, 1930

Division A

1. CRIMINAL LAW. Where Uoir dire examination of prospective jurors showed fair proportion of jurors were qualified, court properly denied change of Uenue on ground of prejudice.

Where testimony was to effect that people of county had not prejudged defendant's case and that there was no prejudice against defendant, and voir dire examination of prospective jurors showed that fair proportion of jurors of county were qualifled for service in case, it was not error for trial judge to overrule motion for change of venue.

2. CRIMINAL LAW. Credibility of witnesses and weight of testimony was for jury.

Credibility of witnesses and weight to be given their testimony was question for jury.

3 HOMICIDE. Defendant's guilt of murder held for jury.

In prosecution for murder, defendant's guilt held for jury.

4 WITNESSES. Details of collateral matters tending to impeach reputation and character of state's witness for chastity held properly excluded.

In murder prosecution, it was proper to exclude details of collateral matters which tended to impeach reputation and character of state's witness for chastity.

5. CRIMINAL LAW. Prosecuting attorney's argument that jury trying coindictee convicted him, and that jury was justified in convicting defendant, held not prejudicial where court properly sustained objection and instructed jury.

In prosecution for murder, prosecuting attorney's argument that jury which tried one indicted with defendant, accepted testimony of certain witnesses, and convicted him, and that jury was perfectly justifled in following their decision and convicting defendant, held not prejudicial where court properly sustained objection thereto and fully instructed jury as to their duty in regard thereto.

6. CRIMINAL LAW. Testimony that on return of coindictee and defendant from hunting trip on night of murder, coindictee wore trousers with blood thereon, afterwards washed, held admissible. In prosecution for murder, testimony that on night of murder when S. Who was indicted with defendant, and defendant, returned from hunting trip, trousers worn by S. had blood on leg and seat thereof, and that witness removed blood by washing trousers, held admissible where there were facts and circumstances in evidence tending to show there was concert of action between these parties throughout trip from which they had just returned.

7. CRIMINAL LAW. Defendant could not complain of instruction in which state assumed greater burden than was required.

In murder prosecution, defendant could not complain of instruction in effect that if, in pursuance and furtherance of purpose of killing or robbing deceased, defendant shot and killed deceased, jury should find defendant guilty, in which instruction state assumed greater burden than was required.

8. CRIMINAL LAW. Instruction evidence of good character may of itself create reasonable doubt held properly refused.

In murder prosecution, instruction that evidence of good character may of itself create reasonable doubt where otherwise no reasonable doubt would exist held properly refused.

9. CRIMINAL LAW. Instruction if jury believed anything witness testified to was false, they might disbelieve his entire testimony, or receive part or reject part, held properly refused Because omitting willfulness.

In murder prosecution, instruction in effect that if jury believed that anything witness testified to was false, then in passing upon testimony they might disbelieve his entire testimony, or they might receive part or reject part, held properly refused because it omitted necessary qualification that if jury believed that any witnesss willfully, knowingly, and corruptly, testifled falsely as to any material fact or circumstance, they might disregard his testimony entirely.

10. HOMICIDE. Evidence held sufficient to support conviction for murder.

In prosecution for murder, evidence held sufficient to support conviction.

HON. E. L. BRIEN, Judge.

APPEAL from circuit court of Claiborne county HON. E. L. BRIEN, Judge.

Allen Shelton was convicted of murder, and he appeals. Affirmed.

Judgment affirmed.

Thames & Thames, of Vicksburg, for appellant.

Where feeling in the county is strong against the defendant and every juror called testified that he had heard of the case a change of venue should be granted.

The following instruction asked by the defendant should have been granted:

The court instructs the jury that good character may in itself create a reasonable doubt when otherwise no such doubt would exist, and if in the judgment of the jury, the evidence of good character raises a reasonable doubt of defendant's guilt, they have a right to entertain such doubt and the defendant should have the benefit of it.

Lewis v. State, 93 Miss. 697.

Forrest B. Jackson, Assistant Attorney-General, for the state.

The decision upon a motion for a change of venue is a matter within the sound discretion of the trial court, and unless there is a great abuse thereof, this court will not reverse the case.

Mackie v. State, 138 Miss. 740, 103 So. 379; Fisher v. State, 145 Miss. 116, 110 So. 361.

If it appears from the voir dire examination of the prospective jurors, that there is fair proportion of the jurors of the county who are qualified for service in the case, the defendant is not entitled to a change of venue.

Keeton v. State, 132 Miss. 732, 96 So. 179; Long v. State, 133 Miss. 33, 96 So. 740; Jones v. State, 133 Miss. 684, 98 So. 150; Cummins v. State, 144 Miss. 634, 110 So. 206.

The credibility of witnesses and the weight of testimony is for the jury.

Johnson v. State, 122 So. 529; Dickey v. State, 86 Miss. 525, 38 So. 776; McCoy v. State, 91 Miss. 257, 44 So. 814; Simmons v. State, 109 Miss. 605, 68 So. 913; Algheri v. State, 25 Miss. 584; Morris State cases, 658; Herring v. State, 122 Miss. 647, 84 So. 699; Martin v. State, 112 Miss. 365, 73 So. 64; Hall v. State, 128 Miss. 641, 91 So. 397; Thomas v. State, 129 Miss. 332, 92 So. 225.

The court should not tell the jury that satisfactory evidence of good character of accused is or is not sufficient to raise a reasonable doubt of guilt.

Wesley v. State, 37 Miss. 327; Coleman v. State, 59 Miss. 484; Cole v. State, 4 So. 577; Maston v. State, 83 Miss. 647, 36 So. 70.

Argued orally by Jas. D. Thames, for appellant, and by Forrest B. Jackson, for appellee.

OPINION

Cook, J.

At the June, 1928, term of circuit court of Claiborne county, the appellant, Allen Shelton, and Ruice Stevens were indicted for the murder of Mrs. Mattie Dungan. A severance was granted, and Ruice Stevens was tried, convicted, and sentenced to the penitentiary for life. At the June, 1929, term of the court, Allen Shelton, the appellant, was tried and convicted of the murder, and was also sentenced to life imprisonment in the state penitentiary; and from this conviction and sentence, he prosecuted this appeal.

The facts upon which this conviction is based are substantially as follows: About nine o'clock in the morning of January 21, 1928, a neighbor of Mr. and Mrs. Dungan, who were old and had been ill for some days prior to the murder, called at their home, and upon receiving no response to his knock at the door, looked through the window and discovered the dead body of Mr. Dungan lying before the fireplace, and the body of Mrs. Dungan lying near the door of the adjoining room. Both had been killed by gunshots, and blood was spattered over the floor and walls of the room in which the dead bodies were found. There were several pools of blood in various parts of the rooms, and especially near and under the bodies. There was a pool of blood on the front porch, and there were shoe tracks, and also the track of a bare foot, through the blood and thence over the rooms. Mr. Dungan was dressed in his shirt and trousers and a pair of overalls, one strap thereof being over his shoulder and the other down. Mrs. Dungan was dressed in her night clothes, with only one stocking on. The dresser drawers and the trunks had been opened and ransacked, and papers and wearing apparel were scattered over the floors, and a plank had been removed from the ceiling over the front door in the north room. Mr. Dungan's shotgun was lying near his body, and two empty Ajax shells were found therein, but the testimony was to the effect that an examination of this gun's barrels disclosed that it had not been recently fired. An empty Ajax shell was also found in the yard. A fire was smoldering in the fireplace before which Mr. Dungan was lying.

The alarm was promptly given, and the sheriff of the county and many citizens gathered at the Dungan home and made all possible investigations as to the circumstances of the death of these parties. Bloodhounds were secured, but nothing was accomplished by them. A detective was promptly employed, and within a day or two Ruice Stevens, a relative of the deceased, Hobson Stevens, a grandson of the deceased, and the appellant and another party were arrested and placed in jail, and charged with the murder. The officers examined these parties fully in regard to their movements on the night of the murder, but since their statements did not tend to connect any of them with the murder, they were shortly thereafter released from custody. Another detective was engaged, and, after several months' investigation by him, Ruice Stevens, Hobson Stevens, and the appellant were again arrested and placed in jail. A few days thereafter, Hobson Stevens was released from custody.

All the testimony offered by the state, which tended directly to connect the appellant and Ruice Stevens with the murder, was given by the said Hobson Stevens a...