Smith v. State
| Decision Date | 17 April 1933 |
| Docket Number | 30471 |
| Citation | 167 Miss. 85,147 So. 482 |
| Court | Mississippi Supreme Court |
| Parties | SMITH v. STATE |
Suggestion Of Error Overruled May 15, 1933.
APPEAL from circuit court of Leflore county HON. S. F. DAVIS, Judge.
Eddie Smith was convicted of murder, and he appeals. Affirmed.
Affirmed.
Gilruth Mounger and A. H. Bell. both of Greenwood, for appellant.
The facts are insufficient to justify a verdict of murder. The defendant was the only eyewitness. His story of self-defense is wholly reasonable, undisputed and unimpeached. He was not contradicted by a single fact of the actual killing. There were no physical facts in dispute with his explanation of the homicide. The testimony of the defendant warranted his shooting to defend himself and he should not have been convicted.
If all the testimony of the case, whether introduced by the state or by the defendant, leaves the question of the defendant's guilt in reasonable doubt, a judgment of conviction cannot be upheld.
Houston v. State, 78 So. 182, 117 Miss. 99; Patty v. State, 126 Miss. 94, 88 So. 498; Bowen v. State, 144 So. 230.
The statute confers a right and a defense, which the jury has no right to disregard, where the defendant's testimony is uncontradicted, and where on its face it is not improbable.
McLeod v. State, 105 So. 757, 140 Miss. 897; Garland v State, 94 So. 210.
Instruction No. 1 for the state should not have been given. This instruction defines murder as the "killing of a human being with malice aforethought." This is insufficient. There must be a felonious killing or an unlawful killing. It is possible to conceive of a killing of another person with malice aforethought though unlawfully.
Dye v. State, 90 So. 180, 127 Miss. 492; Ellis v. State. 66 So. 323, 108 Miss. 62.
W. D. Conn. Jr., Assistant Attorney-General, for the state.
The law is to the effect that the testimony of the defendant must be reasonable and must be a believable account of the circumstances surrounding the homicide. In this particular appellant's version of the circumstances surrounding the homicide does not have the ring of truth to it. If he had lied about everything else connected with the facts leading up to the tragedy, it is reasonable to presume here that the jury likewise elected to treat his version of what actually happened as unreasonable.
In the circuit court of Leflore county, the appellant was convicted of murder, and was sentenced to the state penitentiary for life.
The state offered evidence proving that the deceased, Roberta McBride, came to her death as the result of shotgun wounds in the side of her face, and also offered in evidence a confession or statement of the appellant made to a deputy sheriff admitting that he killed the deceased with a shotgun.
As a witness in his own behalf, the appellant admitted that he killed the deceased with a shotgun, but claimed that he killed her in self-defense. He testified that during periods of time that the husband of the deceased, Roberta McBride, was away from home, be became intimate with her; that finally having become fearful of the wrath of the husband, he sought to sever these illicit relations, but Roberta objected and upbraided him on account of his attentions to another woman; that when he quit his work about five thirty o'clock on the day before the killing he borrowed a shotgun for the purpose of going 'possum hunting that night, without dogs; that he purchased shells for the gun, and started on the hunt about six or half past six o'clock.
He further testified that when he started hunting, he met Roberta, and thereupon abandoned his hunt and remained with her until nine o'clock, when he kissed her good night, and she went to her home, and he to his; that about two o'clock A. M. she knocked on his door and he let her in; that she then had a pistol which she laid on a shelf in his room; that she continuously quarreled with him from that time until five o'clock, when it was time for him to go to work; that he then got up and dressed, and they left the house together, he carrying the shotgun which he had borrowed, and Roberta carrying the pistol which she had brought to his room. He further testified that as they proceeded toward Roberta's home, she continued to quarrel with him about the other woman, and finally said: And thereupon she snapped the pistol at him, and he turned and shot her, believing that it was necessary to do so to save his own life; that after he shot her, he secured the pistol which she had snapped at him and carried it and the shotgun to the house where he worked, and put them behind the kitchen door, and then reported to his employer what he had done.
The evidence further shows that the pistol contained five cartrides, all of which had marks or indentations of the plunger of the pistol on the rim, and some of them several such indentations. There was an effort to show by the appellant that the plunger of this pistol was pointed downward, so that it would not strike the cap of the cartridge, but would strike the rim. This testimony was objected to, and thereupon the pistol was offered in evidence for the purpose of enabling the jurors to determine that fact for themselves. The appellant testified that he did not know how many times Roberta snapped the pistol at him, and whether she snapped it more than once.
A witness for the state testified that about six o'clock of the evening before the killing, the appellant came to his home and sought to borrow or buy about two shotgun shells that he asked the appellant if he was going hunting, and he laughed and replied: "No, not exactly." That he saw the appellant again about seven thirty o'clock that night, standing at the gate of a nearby...
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