Smith v. State

• Decision Date: 09 June 1930
• Docket Number: 28381
• Citation: 158 Miss. 355,128 So. 891
• Court: Mississippi Supreme Court
• Parties: SMITH v. STATE

128 So. 891

158 Miss. 355

SMITH v. STATE

No. 28381

Supreme Court of Mississippi

June 9, 1930

(In Banc.)

1 HOMICIDE.

Defendant's guilt of murder held for jury.

2. INDICTMENT AND INFORMATION.

Motion to quash indictment held properly denied where there was no offer of evidence by defendant when case was tried on merits in support of allegations.

3. CRIMINAL LAW. Where defendant was tried on previous indictment, but jury did not agree and district attorney entered nol pros, second prosecution was not barred (Constitution, section 22). Under Constitution, section 22 there must be an actual acquittal or conviction on the merits to bar another prosecution.

4 HOMICIDE.

Where defendant and wife were tried together, refusal, at close of state's evidence, to direct verdict for wife held proper where state's evidence showed wife confessed murder.

5. CRIMINAL LAW.

Refusal at close of state's evidence to direct verdict for defendant's wife held proper where defendant did not advise court he desired to use wife as witness.

6. CRIMINAL LAW.

Refusal at close of state's evidence to direct verdict for defendant's wife held harmless where wife testified to facts exonerating defendant.

7 HOMICIDE.

In murder prosecution, submitting guilt of both defendant and wife to jury held not error.

8. CRIMINAL LAW.

Bill of exceptions not signed by trial judge or by two attorneys other than those representing defendant could not be considered (Hemingway's Code 1927, sections 592, 600).

HON. E. J. SIMMONS, Judge.

APPEAL from circuit court of Lincoln county HON. E. J. SIMMONS, Judge.

Henry Smith was convicted of murder, and he appeals. Affirmed.

Judgment affirmed.

J. N. Yawn, J. A. Naul, and Barlow & Womack, all of Brookhaven, and J. H. Sumrall, of Jackson, for appellants.

W. A. Shipman, Assistant Attorney-General, for the state.

Briefs for counsel not found.

OPINION

Smith, C. J.

The appellant and his wife were jointly indicted for the murder of Tommie Case. No request for severance was made, and they were tried together, resulting in a verdict of conviction of the appellant and the acquittal of his wife. On this verdict against the appellant the death penalty was imposed.

The evidence discloses that the appellant and his wife were driving along a public road in an automobile and met Case and Alteman Watts, who were walking. According to Watts, who testified for the state, when they met, the appellant said "Hey," stopped the automobile and said: "'Come here Tommie,' and Mr. Case walked up to the car and put one foot on the running board and laid his hands on the door like that and lent over on the door and Henry says, 'Tommie, how many times have you ever had sexual intercourse with Jennie Durr?,' and he says, 'Why, I never done nothing like that with that woman in my life,' and Henry says, 'You are just a G d lie,' and Hattie, his wife, says, 'Come clean and tell the truth.' She says that twice, told him to come clean and tell the truth about it, and he says, 'Why, Hattie, I have never done anything like that to that woman,' and Henry says, 'You are just a G d lie, I will shoot the h out of you,' and then he reached down in the bottom of the car and got the pistol with the barrel in his left hand like this and put the butt in his right hand and jerked it up in his face and shot and just before he shot when he jerked the pistol up in his face he jerked his head up like that." According to the testimony of Watts, the appellant then turned to him and said: "Boy, you be d sure you don't tell nothing on me or I will get you, G d you." Case was unarmed, according to Watts' testimony, and made no demonstration whatever against either occupant of the automobile.

The appellant and his wife were arrested shortly after the homicide, and his wife told the officers who made the arrest that she killed Case herself "because he had talked about her." Jennie Durr, referred to in Watt's testimony, is a sister-in-law of the appellant's wife.

At the close of the evidence each of the defendants requested the court to exclude the evidence and to charge the jury to return a verdict of not guilty. Both of these requests were overruled. The appellant and his wife then proceeded with their evidence, and their version of what occurred at the homicide can best be told in the words of the wife, which are: "We overtook Tommie and I told my husband to stop the car, I says 'Stop the car, Henry, I want to see Tommie about them slanderous tales he's been telling about me' and then Henry says . . . Well, I told him to stop the car, that I was going to ask Tommie about them slanderous tales he was telling on me and Henry says, 'Let's go on,' and I says, 'No, I want to ask him about them slanderous tales he's been telling,' and Henry stopped the car there and I called Tommie and he come up pretty close to the car well, about two feet or something like that and says, 'Tommie, what in the name of God have you been telling Otom Smith such slanderous tales on me?' and he says, 'Otom,' and I says, 'Yes,' and he says 'No,' then I says, 'What did you tell Otom that you have been keeping me for,' I says, 'Tommie, you know a bigger lie was never told.' And then I says, 'Tommie, you have got to go with me to Otom and straighten up them lies,' and then he says, 'Straighten up, h , I'll straighten up my part right now,' and he reached his hand in his bosom like he was after a gun and I thought he was gonna get a gun and . . . I just grabbed mine and shot him right then. He was trying to get his but I just beat him up to it. . . . The pistol was over there by me in the car pocket."

The appellant and his wife filed a motion to quash the indictment, setting up that, prior to the finding of the indictment, the appellant was indicted and tried for the murder of Case on an indictment against him alone; that the jury reported to the court that they were unable to agree on a verdict, and were discharged; that thereupon the district attorney entered a nol...