Talbert v. State, 31516

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: McGowen, J.
• Citation: 159 So. 549,172 Miss. 243
• Parties: TALBERT v. STATE
• Decision Date: 04 March 1935
• Docket Number: 31516

159 So. 549

172 Miss. 243

TALBERT
v.
STATE

No. 31516

Supreme Court of Mississippi

March 4, 1935

Suggestion Of Error Overruled April 1, 1935.

(In Banc.)

1. CRIMINAL LAW.

Witness testimony in murder trial that railroad crossing, from which occupants of truck saw defendant standing beside highway with hand on pistol, which he fired at truck, killing one occupant thereof, was in certain county, held sufficient to show venue therein.

2. HOMICIDE.

Evidence in trial for murdering occupant of truck that defendant fired pistol in direction of truck as it was going down grade from him held to preclude holding that homicide was accidental.

3. CRIMINAL LAW.

Defendant not asking for manslaughter instruction in murder trial cannot complain on appeal of trial court's failure to give such instruction.

4. HOMICIDE.

Whether some occupants of truck, toward which defendant in murder trial fired pistol shot, killing one occupant thereof, had addressed insulting language to defendant's wife, held for jury on conflicting evidence,

5. HOMICIDE.

Use of deadly weapon by one charged with murdering occupant of passing truck held to raise presumption of malice, in view of accused's and his wife's testimony that some occupants of truck had addressed insulting language to wife.

6. HOMICIDE.

Evidence in murder trial that defendant discharged deadly weapon at passing truck, crowded with human beings, killing one of them, held to warrant finding of malice and motive by jury (Code 1930, section 985, subdivisions (a, b)).

[172 Miss. 244]

7. INDICTMENT AND INFORMATION.

Indictment in language of statute for murder need not set forth mariner and details of homicide (Code 1930, section 1211).

8. HOMICIDE.

Instruction that, unlawful killing of human being, with malice aforethought and deliberate design, to kill him, or in commission of act eminently dangerous to others and evincing depraved heart, regardless of human life, though without such design, is a murder, held not erroneous in trial for murder under Indictment in language of statute (Code 1930, section 986, subdivisions (a, b); section 1211).

9. HOMICIDE.

Instruction informing jury of sentence court would impose on forms of verdict involving life imprisonment, but; failing to tell them that, if they returned general verdict of guilty of murder as charged, it would be court's duty to impose death sentence, held erroneous, but not misleading or prejudicial to defendant.

HON. JNO. M. KUYKENDALL, Judge.

APPEAL from the circuit court of Tallahatchie county HON. JNO. M. KUYKENDALL, Judge.

James Talbert was convicted of murder, and he appeals. Affirmed.

Affirmed.

J. O. Day, of Tutwiler, for appellant.

The facts in this case do not warrant a verdict of conviction for murder nor manslaughter. It is not necessarily a felony to kill an innocent bystander.

State v. Horton, 139 N.C. 588, 51 S.E. 945; 1 L.R.A. (N.S.), 991; 111 Am. St. Rep. 818; 4 Ann. Cas. 797; Dixon v. State, 104 Miss. 410, 61 So. 423; Archbold's Criminal Proc. 9.

Barbour & Henry, of Yazoo City, for appellant.

The defendant is specifically charged in the indictment with having killed Jesse Lewis "willfully, unlawfully, feloniously and with malice aforethought." The indictment [172 Miss. 245] nowhere charges the "killing of a human being without authority of law, when done in the commission of an act eminently dangerous to others and evincing a, depraved heart, regardless of human life, although without any premeditated design, to effect the death of any particular individual."

There is no evidence whatever that the defendant killed Jesse Lewis with malice aforethought or with any deliberate design to effect the death of Jesse Lewis.

Gentry v. State, 92 Miss. 141; Falkner v. State, 154 So. 338.

The venue is not proven in this case.

The defendant and his wife were not contradicted in their statement that the insult was offered, and that the defendant resented it by shooting, so that this testimony, which offers the only possible reason why the shooting should have taken place, is reasonably easily believable and is uncontradicted.

The testimony shows complete absence of malice on defendant's part and fails to show any contradiction of defendant's reasonable statement.

This court has reversed several cases, just because the manslaughter instruction was not submitted to the jury, and not asked by either side.

Allen v. State, 139, Miss. 605.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

Malice and an intent to kill may be formed in an instant.

Williams v. state, 163 Miss. 475, 142 So. 471; Eaton v. State, 163 Miss. 130, 140 So. 729.

It was a question for the jury to say whether or not malice and an intent to kill were present at the time of the shooting.

Venue in a criminal case may be shown by circumstantial evidence.

Dorsey v. State, 141 Miss. 600, 106 So. 827; Ussery v. State, 154 Miss. 704, 123 So. 854.

This court has said that it will take judicial notice of the existence and general course of railroads, as well as the existence of municipalities in the state.

Hill v. State, 112 Miss. 375, 73 So. 66.

The defendant did not ask for any manslaughter instruction either and he cannot complain of the court's failure to submit that issue to the jury.

Rutland v. State, 155 So. 681; Dobbs v. State, 142 So. 500; Cosey v. State, 161 Miss. 747, 138, So. 344.

An intent to kill someone or anyone is sufficient to supply intent to kill the one who was actually killed.

Ross v. State, 131 So. 367.

It is said that the verdict is contrary to the law and evidence. We submit that this is a question which this court cannot pass upon now. There was no motion for a new trial presented to the court after the verdict was rendered in this case. Therefore, the trial court has not passed upon this question and this court is limited to a review of what was done in the trial court.

Justice v. State, 154 So. 265; Bryant v. State, 157 So. 346.

Argued orally by W. A. Henry, for appellant.

OPINION

[172 Miss. 246] McGowen, J.

On an indictment for murder in the killing of Jesse Lewis, appellant was tried, convicted, and sentenced to be banged by the lower court, and appeals here.

In August, 1934, Meadow Pressgrove, a white man, carried a truckload of twenty-one negro men from Minter City to Lambert on Sunday afternoon to engage in a game of baseball. They lost the game, and returned to Minter City. It was after dark when they reached [172 Miss. 247] what the witnesses called Shoe Bridge railroad crossing. Two of the witnesses, who were in the truck at the time, testified...