Walden v. State

• Decision Date: 10 July 1922
• Docket Number: 22135
• Citation: 129 Miss. 686,92 So. 820
• Court: Mississippi Supreme Court
• Parties: WALDEN v. STATE

92 So. 820

129 Miss. 686

WALDEN v. STATE

No. 22135

Supreme Court of Mississippi

July 10, 1922

CRIMINAL LAW. Refusal of change of venue not error, where record shows fair and impartial trial.

Where the entire record in a murder case, viewed from its conclusion and as an entirety, shows that the defendant had a fair and impartial trial free from bias and prejudice, it was not error to overrule a motion for a change of venue.

HON. S F. DAVIS, Judge.

APPEAL from circuit court of Holmes county, HON. S. F. DAVIS, Judge.

Fannie Walden was convicted of murder, and she appeals. Affirmed.

See also, 90 So. 177, 127 Miss. 486.

Judgment affirmed.

Barbour & Henry and Boothe & Pepper, for appellant.

F. H Lotterhos, assistant attorney-general, for the state.

OPINION

SYKES, P. J.

The appellant was indicted and convicted of murder, and the jury failed to agree as to the punishment; consequently she was by the court sentenced to the penitentiary for life. From which judgment this appeal is prosecuted.

The appellant is a negro woman. On May 12, 1921, she killed a white man by the name of W. E. Moore at his home in the country near Lexington. The killing was done with Moore's revolver. There were two fatal wounds inflicted upon the deceased, one in the face and one in the breast. The killing occurred in the afternoon. The uncontradicted testimony shows that the appellant had been living with Moore as his mistress for about two years previous to the killing. One night about a week before the killing the testimony shows that they had a fuss. A state witness testified that the fuss occurred because the appellant wanted the deceased to pay some bills for her. The appellant testified that the cause of the fuss was about her wishing to sever relations with him and go to Hot Springs and marry a negro there; that she was in receipt of a letter from this negro, in which the negro had inclosed to her a letter written to him by the deceased. The morning following this fuss the appellant went to the home of her mother. Her testimony is to the effect that she received one or more letters from the deceased after leaving him, and also saw him in Lexington once or twice, and saw him at the home of her mother the night before the killing, and that deceased was insisting upon her returning to his home; that the deceased furthermore had told her he was going to California, and wanted to take her there with him; that he told her he would not permit her to go to Hot Springs and marry the negro, but would kill her first; that she promised him to return to his home; that it was not her intention to live with him again, but that she left him under the impression that she expected to do so, but that her real intention was to go to his home and get the balance of her personal belongings and go to Hot Springs; that she attempted to telephone the deceased from Lexington that she was on her way out there, but failed to get him on the phone. When she arrived at his house she there found a negro boy and girl. She testified that she told the boy to tell the deceased that she was there and wanted to see him. At this time the deceased was near the barn at work on a plow, a short distance from the house. Appellant testified that she did not go into the house. The negro girl testified that appellant went into the room twice before Mr. Moore came to the house. This was the room previously occupied by the appellant and the deceased. The testimony shows that Mr. Moore kept his pistol in this room usually lying upon the chifforobe; the appellant herself admits that she knew where Mr. Moore usually kept his pistol. The negro girl testified that upon the second visit of the appellant to this room she (the witness) through a window saw the appellant pick up a pearl-handled pistol which belonged to Mr. Moore. This witness also testified to certain threats made by the appellant against her (the witness), which threats were denied by the appellant. The appellant denied going into the room, or any part of the house, before the arrival of Mr. Moore. The deceased was killed with his pistol, which, however, was not a pearl-handled pistol, but a black-handled pistol. There is no testimony other than that of this witness that Mr. Moore had a pearl-handled pistol; in fact from the record we are satisfied that he owned no pearl-handled pistol, but the black-handled pistol with which he was killed. Consequently the testimony of this witness that she saw the appellant pick up a pearl-handled pistol is bound to be untrue. It is possible, of course, that she saw the witness pick up the black-handled pistol. We think, however, that the jury had a right from this testimony to believe at least that the appellant went into this room where the black-handled pistol with which Mr. Moore was killed was kept, and from the other circumstances and facts testified to in the case to believe that on one of these trips she armed herself with this pistol.

According to the testimony of the appellant the deceased had stated to her that he would not permit her to leave him and go to Hot Springs to marry this negro; that he would kill her before allowing her to do so; that he told her she could only go there over his dead body. She testified on cross-examination that Mr. Moore was a man of his word, and usually did what he said he was going to do. Her testimony in effect is that while she went to the house for the real purpose of getting her things and finally leaving the deceased, she knew that he expected her to return to stay there with him. She stated that she did not fool him about this, but that he fooled himself as to her intentions. The negro boy informed Moore that the appellant was there, and he walked on up to where she was standing near the front porch. They then sat on the side of the porch talking for a while. She states that Moore was glad to see her, and glad to know that she had returned, and that the conversation was very friendly until she told Moore that she had come for the purpose of getting her things to finally leave him; that Moore then appeared to be mad. He was in his shirt sleeves. She says that he then stated to her that he wanted to go in the house to get a match, and went in the room, returning within a very short time; that shortly after his return he told her she could not go, and she told him that she was going, and started to get up off of the porch, when Moore slapped her; that she slapped him back, and grabbed him about the neck with her left arm; and that about that time Moore secured the pistol from somewhere on his person and shot over her left shoulder; thereafter they fought and scuffled for possession of the pistol, and in some way got up the steps from the ground to the gallery, the gallery being about two and one-half or three feet from the ground. That all during the difficulty she and Moore were facing each other; that she went up the front steps before Moore; that the first shot, the one over her left shoulder, was fired on the ground; all of the other shots were fired while they were on the porch; that as soon as she realized that Moore had the pistol she began trying to get it, or that both began a scuffle for the possession of it; that at one time she had it, and hit Moore over the head several times, after which Moore thereafter had the pistol...