Thornton v. State

• Decision Date: 09 November 1936
• Docket Number: 32325
• Citation: 178 Miss. 304,170 So. 541
• Court: Mississippi Supreme Court
• Parties: THORNTON v. STATE

170 So. 541

178 Miss. 304

THORNTON v. STATE

No. 32325

Supreme Court of Mississippi

November 9, 1936

Division B

1. CRIMINAL LAW.

Where eyewitnesses' testimony in murder prosecution is not in conflict, and is entirely reasonable and consistent with all circumstances including physical facts, and makes out case of self-defense, testimony must be accepted as true by court.

2 HOMICIDE.

Where eyewitnesses' testimony in murder prosecution on question of self-defense is in material respects unreasonable, or is contrary to evidence of attendant circumstances, including physical facts, case must be submitted to jury.

3 HOMICIDE.

Whether defendant in murder prosecution acted in self-defense, as testified by only eyewitnesses to homicide, held for jury where undisputed evidence showed that only one shot was fired and that deceased died from loss of blood from wound caused by shot in back of leg, force of which progressed towards front.

4. CRIMINAL LAW.

Overruling motion for new trial for newly discovered evidence held not error where defendant was not tried until year and a half after being indicted, and state of evidence on motion justified trial judge's conclusion that, if defendant had exercised due diligence, evidence claimed to be newly discovered would have been known at time of trial in chief.

5. CRIMINAL LAW.

Due diligence, as measured by legal standard, is universal prerequisite to availability of newly discovered evidence as ground for new trial.

6. CRIMINAL LAW.

Party asking for new trial on ground of newly discovered evidence must satisfy court that evidence has come to his knowledge since trial, that it was not owing to want of diligence that it was not discovered sooner, and that evidence would probably produce different results if new trial were granted.

HON. D. M. ANDERSON, Judge.

APPEAL from circuit court of Lake county, HON. D. M. ANDERSON, Judge.

Henry Thornton was convicted of manslaughter, and he appeals. Affirmed.

Affirmed.

F. F. Mize, of Forest, for appellant.

Wm. H. Maynard, Assistant Attorney-General, for the State.

Briefs of counsel not found.

OPINION

Griffith, J.

Appellant, a white man, was indicted and tried for the murder of Otis White, a negro, and was convicted of manslaughter. The first assignment of error is that the court should have granted appellant's request for a directed verdict of not guilty. The argument of appellant in support of this assignment is that there were only two eyewitnesses to the homicide, and that both these witnesses, without material conflict, by their evidence made out a case of self-defense.

It is true, of course, that, where the testimony of the eyewitnesses is not in conflict, and is entirely reasonable, and is consistent with all the circumstances, including the physical facts, and makes out a case of self-defense, that testimony must be accepted as true by the court, Weathersby v. State, 165 Miss. 207, 147 So. 481; but where the testimony of the eyewitnesses is in material respects unreasonable, or is contrary to the evidence of the attendant circumstances, including the physical facts, the case must be submitted to the jury, McGehee v. State, 138 Miss. 822, 104 So. 150; Grady v. State, 144 Miss. 778, 110 So. 225; McFatter v. State, 147 Miss. 133, 113 So. 187; Brumfield v. State, 150 Miss. 552, 117 So. 529; Smith v. State, 167 Miss. 85, 147 So. 482.

The undisputed evidence in this case is that the deceased was shot in...