Tillman v. State

• Decision Date: 07 November 1955
• Docket Number: No. 39821,39821
• Citation: 83 So.2d 86,225 Miss. 275
• Parties: Cassie D. TILLMAN v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 86

83 So.2d 86

225 Miss. 275

Cassie D. TILLMAN v. STATE of Mississippi.

No. 39821.

Supreme Court of Mississippi.

Nov. 7, 1955.

Howard R. Pigford, Meridian, for appellant.

J. P. Coleman, Atty. Gen., Joe T. Patterson, Asst. Atty. Gen., for appellee.

HOLMES, Justice.

The appellant was convicted in the Circuit Court of Lauderdale County on an indictment charging him with assault and battery with a deadly weapon, to wit, a shotgun, upon Helen Irby by shooting and wounding her, with intent to kill and murder her. He was sentenced to a term of seven years in the State penitentiary and from the judgment of conviction he prosecutes this appeal.

The facts as disclosed by the State's proof are brief, and we state them as follows: The appellant operated an establishment in a building at or near Marion in Lauderdale County. It appears to have been a combination cafe and dance hall wherein beer was served to the public. On a Saturday or Sunday night, on the 20th or 21st of November, 1954, a fight occurred in the place in which the prosecuting witness, Helen Irby, and one J. W. Martin were the principal participants. The fight developed into a general brawl, in which someone hurled a piano stool and other articles of furniture were hurled and a table was turned over and general disorder resulted. The appellant was not a participant in the fight. When the atmosphere cleared, the appellant ordered the participants, among them, Helen Irby and Lucy Tillman, a sister-in-law of the appellant, to leave the building and not come back. As Helen Irby and Lucy Tillman were leaving, one of them remarked that they were leaving but that they would come back. In about an hour and a half or two hours, which was some time before midnight, Helen and Lucy returned. Lucy preceded Helen into the building, remarking, 'Where is all the bad s..... of b..... at?' The wife of appellant answered that there were no bad people there. Shortly, Helen followed Lucy into the building and went over to the counter where she stopped and stood for some ten minutes. She was wearing blue jeans and she stood with one foot on the foot rail of the counter, one arm on the counter, and one hand in the pocket of her blue jeans. The appellant was behind the counter and on the opposite side from Helen. Helen made no threat or demonstration and committed no overt act indicating a purpose to attack the appellant, and exhibited no weapon of any kind. The appellant told her three times to leave, and she answered she would leave when Lucy left. The appellant then reached for his shotgun, which was behind the counter, and took a shell from his pocket and loaded the gun and fired at Helen, striking her in the stomach. According to the undisputed proof, he fired at a time when Helen was wholly unarmed and making no demonstration of any kind to attack the appellant or do him any bodily harm. The parties were about ten feet apart and on opposite sides of the counter when the appellant fired. Helen fell to the floor and according to some of the witnesses her whole stomach came out. The appellant left the place after the shooting, telling his wife to tell the officers if they came that he would be at home. Helen was later removed in an ambulance to the hospital where she remained for about six weeks and miraculously recovered.

The testimony for the defense corroborated the state's witnesses in all material respects, except the appellant testified that Helen told him as she came to the counter that she was going to get him, and that he thought she had an automatic in her pocket and that she was going to kill him, and appellant's daughter testified that Helen 'looked mean' at the appellant as she stood at the counter. The appellant admitted that at the time he fired Helen was not exhibiting any weapon and was making no demonstration to do him any bodily harm. He said at one time in his testimony that he didn't know why he shot her, and at another time that he shot her because he was scared.

The appellant pleaded self defense, and the court submitted to the jury under proper instructions the issue as to whether or not at the time the appellant fired he had reasonable grounds to apprehend that he was in real or apparent danger of losing his life or suffering great bodily harm at the hands of Helen Irby. The jury resolved this issue against the appellant, and we think rightly so.

The appellant has made a number of assignments of error but we shall address ourselves to only those assignments which, in our opinion, merit discussion.

The appellant complains that the trial court erred in sustaining the State's objection to testimony offered by the appellant to show that the general reputation of the prosecuting witness, Helen Irby, for peace or violence was bad. Such character of evidence is generally admissible only in cases of circumstantial evidence, to be considered by the jury in aid of their inquiry into the origin and progress of the conflict in which the accused was engaged, and in cases where the proof shows that the deceased or prosecuting witness has committed some overt act or made some hostile demonstration or threat indicating a present purpose to do the accused some great bodily harm, and the evidence is offered as bearing upon the reasonableness of the accused's claimed belief that an attack was about to be made upon him. Chase v. State, 46 Miss. 683; Spivey v. State, 58 Miss. 858. This is not a case of circumstantial evidence, and further, the proof is wholly devoid of any overt act or hostile demonstration committed by Helen Irby toward the appellant, or if any threat by Helen Irby toward the appellant except the veiled statement testified to by the appellant that she was going to get him. The appellant himself, however, admitted that she exhibited no weapon and made no effort to draw a weapon or to do the appellant any bodily harm, and made no hostile demonstration of any kind toward the appellant, although she stood on the opposite side of the counter from him for some ten minutes. The proof further developed that Helen Irby was wholly unarmed, and had nothing in her pocket but a fifty cents piece. We think, therefore, that the court was not in error in excluding the proffered testimony.

It is also contended by the appellant that the trial court erred in refusing to permit him to show previous fights between the prosecuting witness and others in the appellant's place of business. It was not claimed that appellant was involved in any of such fights. Such evidence was of no probative value in determining the guilt or innocence of the appellant on the charge preferred against him, and was wholly immaterial and irrelevant to the issues involved, and we think the trial court properly excluded it.

It is further contended by the appellant that the trial court erred in excluding testimony on cross-examination of the State's witness Bill Alford, with reference to whether the appellant sought to arrange for medical aid for the prosecuting witness after the shooting and before leaving the scene of the difficulty. It is not contended, and could not be successfully maintained, that the claimed offer to obtain medical aid was a part of the res gestae, but it is argued that the evidence was offered to rebut any claim that appellant fled the scene. It was not contended by the State, and is not contended on this appeal, that appellant fled the scene. In fact, it appears in the proof introduced without objection that when he left the scene he told his wife he was going home and to tell the officers if they came that they could find him there, and they did thereafter, in fact, find him at his home. There was, therefore, no issue as to flight by the accused, and the proffered testimony was...