Smith v. State

• Decision Date: 15 April 1940
• Docket Number: 33751
• Citation: 189 Miss. 102,195 So. 327
• Court: Mississippi Supreme Court
• Parties: SMITH v. STATE

195 So. 327

189 Miss. 102

SMITH v. STATE

No. 33751

Supreme Court of Mississippi

April 15, 1940

APPEAL from the circuit court of Copiah county HON. D. M. MILLER Special Judge.

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

Affirmed.

J Hunter Garth, of Hazlehurst, and Barnett, Jones & Barnett and John E. Stone, all of Jackson, for appellant.

The appellant, Joe Smith, should have been acquitted on his several requests for a peremptory instruction.

The evidence is not materially different from the evidence in the first appeal, and Joe Smith should not have been convicted of a higher offense than manslaughter.

The proof of the whole case fails to make a case of murder.

Hague v. State, 34 Miss. 616.

The homicides were justifiable under the testimony of the defendant and his wife, which being reasonable and not in contradiction of the physical facts and circumstances should be accepted.

Bowen v. State, 164 Miss. 225, 144 So. 230; Patty v State, 126 Miss. 94, 88 So. 498; Houston v. State, 117 Miss. 311, 78 So. 182; Blackledge v. State, 157 Miss. 33, 127 So. 684; Horn v. State, 103 Miss. 821, 20 So. 1011-1012; Weathersby v. State, 165 Miss. 207, 147 So. 481; Green v. State, 46 So. 252; Algheri's case, 25 Miss. 584; Jarman v. State, 178 Miss. 103, 172 So. 669.

The motion to quash the special venire should have been sustained.

Sec. 2064, Code 1930; Ellis v. State, 142 Miss. 468, 107 So. 757; Lee v. State, 138 Miss. 478, 103 So. 233.

The lower court committed error in overruling the motion of the defendant for a mistrial because the presiding judge left the court room during the course of the argument.

Ellerbee v. State, 73 Miss. 522, 22 So. 950; Ermlick v. State, 28 So. 847.

W. D. Conn, Jr., Assistant Attorney-General, and M. S. McNeil, of Hazlehurst, for appellee.

We do not believe that this court can say from the record now before it that the defendant's version is not substantially contradicted by the physical facts. In fact, every physical fact shown in evidence is inconsistent with and conflicts with the testimony of appellant and his wife.

There is nothing in this record to indicate that there was any departure from the general rules and regulations with reference to the listing, etc., of juries, and the jury laws, generally speaking, being directory merely, there was not such handling of the juries in this case as would require the court to say that there was a total departure from the statutory scheme which was in effect at the time this jury was selected.

We submit that this record is infinitely stronger, as showing the conflict between appellant's version of the killing and the physical facts than was true of the record in the former appeal. So much greater is the appearance of these conflicts in this record that we confidently assert that the court will hold that this was not a case for a directed verdict, but one which properly went to the jury because of the manifest and substantial conflicts.

Argued orally by J. H. Garth, for appellant, and by M. S. McNeil and W. D. Conn, Jr., for State.

OPINION

McGehee, J.

This is an appeal from the circuit court of Copiah County wherein appellant was indicted, tried, and convicted of murder, and sentenced to serve a life term in the state penitentiary.

This is the second appearance of the case here on appeal. The former record disclosed that the appellant at the time of the first trial was under indictment jointly with his wife for the murder of her father, T. E. Allen, and it was shown that her mother, Mrs. T. E. Allen, was also killed by the appellant on the same occasion. He was tried and convicted of the murder of T. E. Allen and sentenced to be hanged. On appeal the judgment and sentence were reversed and the cause remanded for a new trial. Smith v. State (Miss.), 185 So. 193. On the record then before us, the several judges entertained widely divergent views as to what decision should be rendered here. Two were of the opinion that the conviction and death sentence then appealed from should be affirmed; two were of the opinion that the testimony of the appellant and his wife, who were the only eye-witnesses to the actual killing, was not unreasonable to that degree which would render it unbelievable, and that their version of what happened at the scene of the killings was not substantially contradicted by the physical facts or by the facts of common knowledge. Hence, under the rule announced in such cases as Weathersby v. State, 165 Miss. 207, 147 So. 481, those two judges thought that the appellant was entitled to the peremptory instruction requested in the trial court; and the other two judges were of the opinion that under the record as then presented no more than a conviction of manslaughter could be allowed to stand.

Also, on the former appeal some of the judges were of the opinion that in view of the fact that the appellant was confronted with the necessity of using his wife as the only other eye-witness to the killings, he should not have been required to undergo the disadvantage of having her remain under the cloud of the joint indictment against them while he was on trial in the absence of any substantial evidence of her participation in the alleged crime; and it was suggested in the opinion that unless additional proof against her should become available, the indictment as to her should be nol-prossed before the appellant was again put to trial. Those judges were also of the opinion that certain evidence offered by the appellant should not have been excluded from the consideration of the jury. Accordingly, these objections were obviated at the second trial, and in our opinion there is nothing contained in the record on this appeal to indicate that the appellant was not given a fair and impartial trial, free of prejudicial error; unless it can be said that he was either entitled to a peremptory instruction in his favor under the rule announced in the case of Weathersby v. State, supra, or unless he should have been convicted only of manslaughter.

The appellant contends: (1) that under the former opinion of the Court in this case, the trial court was without power to try him again for a higher crime than that of manslaughter; and (2) that he was entitled to a peremptory instruction on the ground hereinbefore stated. In reply to the first contention, we deem it only necessary to say that the trial court was not required to anticipate that the evidence on behalf of the state in support of the charge of murder would be no stronger than that offered on the first trial. We shall therefore confine this opinion to the second contention above stated, and shall state the facts which, in our opinion, support and sustain the verdict rendered.

It is shown by this record that the appellant, who was accustomed to carry his shotgun with him in connection with his work of killing certain species of wild life for use in the Copiah-Lincoln Junior College in the teaching of its course in natural history, went on the afternoon of the killings, in company with his wife and child, to the farm where Mr. and Mrs. Allen lived and kept house for June Wilson and Homer Simmons; that Mrs. Joe Smith and her small child, less than two years of age, remained at the house while the appellant Joe Smith, went down in the field where Wilson and Simmons were at work; that while the appellant was down in the field his wife came from the house and reported that she had gotten into a quarrel with her parents and that her father had told her mother to pick up a stick and knock her brains out. In response to this report, it was shown that the appellant suggested to her that she: "Pay no attention to those old people as they have been nagging us ever since we have been married." It appears from the testimony that the alleged quarrel between the appellant's wife and her parents arose from a complaint on their part that in the exchange of work between her and her husband and Wilson and Simmons, she had worked in the field alone with Homer Simmons, who had shown an interest in her prior to her marriage, --her parents thinking that it was improper for her to be alone with Simmons in the field in the absence of her husband, and having reprimanded her on account thereof. Within a few minutes after she went to her husband and reported the quarrel that afternoon. They then immediately returned to the house where he had left his loaded shotgun setting in his car between the brake shift and the lever, some eight or nine steps, according to the appellant's testimony, from the south end of the porch of the house, which faced west; but some 35 or 40 feet away, according to other testimony, as the car faced southwest.

There was a 40 foot porch about 7 feet wide extending all the way across the front of the house, and the posts thereon were approximately 7 feet apart, three of them being on the south side of the front steps and three on...