Shepherd v. State

• Decision Date: 12 November 1923
• Docket Number: 23512
• Citation: 133 Miss. 449,97 So. 755
• Court: Mississippi Supreme Court
• Parties: SHEPHERD v. STATE

97 So. 755

133 Miss. 449

SHEPHERD v. STATE

No. 23512

Supreme Court of Mississippi

November 12, 1923

Division B

(Division B.) January 1, 1920

HOMICIDE. Evidence held insufficient to sustain conviction of manslaughter.

Under the facts, as set out in the opinion, held that a peremptory instruction to find the defendant not guilty should have been granted.

HON THOS. E. PEGRAM, Judge.

APPEAL from circuit court of Marshall county, HON. THOS. E. PEGRAM Judge.

J. C Shepherd was convicted of manslaughter, and he appeals. Reversed, and defendant discharged.

Judgment reversed, and appellant discharged.

L. A. Smith and Hindman Doxey, for appellant.

The law presumes a man innocent until he is proven guilty. The state must establish beyond all reasonable doubt and to a moral certainty the guilt of the accused. The burden is on the state and never shifts, and never is the defendant called upon to prove his innocence, neither is he required to overcome the state's theory but on the other hand "he is entitled to an acquittal if the evidence, or want of evidence, raises a reasonable doubt of his guilt. Riley v. State, 109 Miss. 290, 68 So. 251.

A defendant charged with a crime is presumed innocent of the crime, in its entirety and in all its material parts until the state has shown the contrary. Cook v. State, 85 Miss. 738; Owens v. State, 80 Miss. 499; Wilkie v. Collins, 48 Miss. 496; Hampton v. State, 54 So. 722.

The state must convict on affirmative testimony showing the guilt, not on the failure of the defendant to show his innocence. Owens v. State, 80 Miss. 499; Cook v. State, 85 Miss. 738.

Not only was it the court's right, but it was his duty to direct a verdict and peremptorily instruct the jury to return a verdict of not guilty for we read in Corpus Juris, 30, par. 578: "What facts excuse or justify a killing is a question of law for the court," and further under paragraph 580 (3): "What constitutes self-defense is not a question of fact for the jury, but a question of law for the court, and where the evidence on such issue is insufficient to go to the jury, or is clear and undisputed, the question whether or not self-defense existed in the particular case should not be submitted to the jury but should be determined and disposed of by the court alone, as by directing a verdict for defendant." 30 Corpus Juris, 580, and many citations; Riley v. State, 109 Miss. 286; Sides v. State, 96 Miss. 638.

Our own Mississippi supreme court has held in recent cases: If in a prosecution for murder it be clear from the evidence, viewed as a whole, that defendant acted in necessary self-defense, the court should peremptorily instruct the jury to acquit. Sides v. State, 96 Miss. 638.

While there are many authorities bearing on this case, yet the principal cases which we wish, to consider with this learned court are those of--Riley v. State, 109 Miss. 286; Houston v. State, 117 Miss. 311; Patty v. State, 126 Miss. 98; Bedwell v. State, 130 Miss. 427.

For these reasons we feel that this Honorable Court will unhesitatingly hold that the defendant should have been given a peremptory instruction of acquittal. It is therefore most earnestly urged by counsel for appellant that in the light of the facts set forth, the decisions cited and the manifest errors of the lower court in not granting defendant a peremptory instruction, either at the close of the state's testimony, or at the conclusion of the whole testimony, this court reverse and dismiss the case and discharge the appellant.

S. C. Broom, Assistant Attorney-General, for the State.

Our theory of the case is this: Both men were beastly drunk and had been almost all day. This theory is justified by the facts as shown by the record. They were friends and that is conceded. The appellant herein was sick and his mind was confused as a result of his intoxicated condition. He had gone to bed, and as is frequently the case under such circumstances, he thought he needed the services of a physician, and probably he did. Then came his drunken, blundering friend into the room; he was very solicitous about the welfare of his friend who was sick. It would be useless to attempt to describe the conflicting emotions of a drunken man. There is one peculiar characteristic, however, that is perhaps universal, and that is this, if an idea ever does become firmly fixed within the mind of an intoxicated person, he immediately proceeds to execute that plan and will not be deterred therefrom. Hence, if the deceased in this case had conceived the foolish idea of taking the appellant herein who was his friend, out doors on that bleak January day to give him an ice cold bath in the frozen pond or lake, then all of his efforts would have been directed in an effort to do just that very thing. And so it was with the appellant in this case. It would perhaps be impossible to analyze his state of mind on that occasion. The idea of seizing his pistol and shooting near the head of his friend to frighten him, was probably the product of his drunken brain. But it is folly to say that there was a sufficient interval of time between the two shots to have enabled the deceased to make any movement that could be reasonably construed into meaning an effort to draw a gun. There wasn't time for anything to happen except a change of thought in the befuddled brain of the appellant and he immediately executed the second thought which was to kill the man.

It is interesting to note what an absolutely sound conclusion has been arrived at by counsel for appellant, based on his theory of self-defense. A correct conclusion arrived at from a false premise. Certainly the reasoning is sound, the theory is correct, and we have no quarrel about the authorities cited. We differ on the facts and this question of facts was submitted to the jury. Now the jury adopted our view of the case and this court will not ordinarily reverse on a finding of facts. See Thomas v. State, 92 So. 225, and authorities cited therein.

Appellant relies upon the case of McNeal v. State, 115 Miss. 678, as going to show that the facts in this case are insufficient to warrant a conviction of manslaughter, but the McNeal case was reversed because of an erroneous instruction for manslaughter because it left out the words, "without authority of law," and therefore, denied the appellant the right to kill a human being in the lawful defense of another person, etc., as provided for in section 1230, Code of 1906, Sub-section (f). And again in the McNeal case the facts were uncontradicted. It was simply a question of law.

Argued orally by Hindman Doxey and L. A. Smith, for appellant, and, S. C. Broom, Special Assistant Attorney General for the State.

OPINION

COOK, J.

The appellant, J. C. Shepherd, was indicted for the murder of one Haywood Howell, was convicted of manslaughter, and sentenced to a term of three years in the penitentiary, and from this judgment of conviction this appeal was prosecuted.

The evidence shows that the appellant owned and operated a small store in Marshall county, and adjoining this storehouse was a room in which he and his fifteen-year-old niece resided. The appellant weighed about one hundred and fifteen pounds, had suffered the loss of one leg below the knee, and at the time of the fatal shooting was wearing an artificial leg, and was also crippled in his left arm, so that he could not straighten it, while the deceased was a much larger man, and was physically sound. The appellant and the deceased were friends, and there had been no previous...