Tullos v. State, 39076
| Decision Date | 01 November 1954 |
| Docket Number | No. 39076,39076 |
| Citation | 222 Miss. 90,75 So.2d 257 |
| Parties | Joseph Ray TULLOS v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Raymond Swartzfager, Paul G. Swartzfager, Laurel, for appellant.
J. P. Coleman, Atty. Gen., Joe T. Patterson, Asst. Atty. Gen., for appellee.
The appellant, Joseph Ray Tullos, was convicted in the Circuit Court of the Second Judicial District of Jones County of the murder of James Franklin Powell. The jury disagreed as to his punishment, and he was sentenced to the penitentiary for a term of ninety-nine years. From this judgment he prosecutes an appeal.
The evidence in this case is without substantial dispute, and shows that the appellant was operating a dance hall and cafe known as the Big Chief Inn, located on Highway 84, eight miles west of the City of Laurel. Powell, the deceased, arrived at the appellant's place of business early in the evening of November 8, 1952, and was 'drinking pretty heavy' on this occasion. As the evening progressed, the deceased became more and more belligerent and became involved in several arguments and disturbances with other patrons in the appellant's establishment. The appellant told the deceased he would have to quiet down or leave, but he did neither and was soon engaged in an argument with his companion of the evening, and during which argument he attempted to strike her with his hand, but another patron in the place of business, one Joe Ellzey, came to her aid. The deceased then started an attack upon Ellzey, during which altercation, the appellant attempted to quiet the disturbance by striking at the deceased with a black-jack, but failed to do so, inasmuch as the black-jack either slipped or fell from his hand. The appellant then obtained a ball-peen hammer from behind the counter and struck the deceased one time in the back of the head, which blow resulted in his death.
The evidence shows without dispute that at no time during the disturbances created by the deceased was he armed in any manner, nor did he succeed in striking anyone, and that neither the appellant nor any other person was in any real or apparent danger of losing their lives or suffering great bodily harm at the hands of the deceased. Since this case must be reversed and remanded for another trial, we refrain from making a more detailed statement of the facts.
There are a number of errors assigned which we find without merit, however, this cause must be reversed for the granting of the following instruction to the State: 'The court instructs the jury for the state that the deliberate use of a deadly weapon in any difficulty, not in necessary self-defense, is a fact from which malice may be inferred.'
In this case, eight eye-witnesses, including the appellant, testified to the facts. This court has consistently held that where all the facts and circumstances surrounding a...
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Tran v. State, 92-KA-01058-SCT
...(1963); Shields v. State, 244 Miss. 543, 144 So.2d 786 (1962); Johnson v. State, 223 Miss. 167, 77 So.2d 824 (1955); Tullos v. State, 222 Miss. 90, 75 So.2d 257 (1954); Smith v. State, 205 Miss. 283, 38 So.2d 725 (1949); Bridges v. State, 197 Miss. 527, 19 So.2d 738 (1944); Busby v. State, ......
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Hendrieth v. State, 45557
...weapon are in evidence, the presumption of malice arising from its use is swallowed up by, and yields to, the evidence. Tullos v. State, 222 Miss. 90, 75 So.2d 257, * * *' (223 Miss. at 171, 77 So.2d at The Court also said: 'The instruction is also objectionable in that it is peremptory in ......
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Shields v. State, 42239
... ... State, 197 Miss. 527, 19 So.2d 738; Smith v. State, 161 Miss. 430, 137 So. 96, 97; Smith v. State, 205 Miss. 283, 38 So.2d 725; Tullos v. State, 222 Miss ... 90, 75 So.2d 257; 26 Am.Jur., Sec. 536, p. 528 ... The testimony in this case is overwhelming, and it ... ...
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Carter v. State, 55659
...(1963); Shields v. State, 244 Miss. 543, 144 So.2d 786 (1962); Johnson v. State, 223 Miss. 167, 77 So.2d 824 (1955); Tullos v. State, 222 Miss. 90, 75 So.2d 257 (1954); Smith v. State, 205 Miss. 283, 38 So.2d 725 (1949); Bridges v. State, 197 Miss. 527, 19 So.2d 738 (1944); Busby v. State, ......