Weathersby v. State

• Decision Date: 10 April 1933
• Docket Number: 30508
• Court: Mississippi Supreme Court
• Parties: WEATHERSBY v. STATE

147 So. 481

165 Miss. 207

WEATHERSBY v. STATE

No. 30508

Supreme Court of Mississippi

April 10, 1933

Division B

1. CRIMINAL LAW.

Where defendant or his witnesses were only eyewitnesses of homicide, their version must be accepted, unless substantially contradicted in material particulars by credible witnesses, physical facts, or facts commonly known.

2 HOMICIDE. Defendant held entitled to peremptory instruction in homicide case on ground of self-defense.

Testimony of defendant and his wife, who were only eyewitnesses, that deceased threatened them with death when at defendant's home few moments before shooting and had again approached within few feet thereof with pistol and renewed threats when shot, was corroborated by pertinent circumstances and some witnesses for state and contradicted only by evidence that shot went through growing corn in manner showing that defendant and deceased could not have been at points where defendant said they were at time of shooting, while deceased's bad reputation in community for violence was shown without contradiction.

HON. R L. CORBAN, Judge.

APPEAL from circuit court of Franklin county HON R. L. CORBAN, Judge.

Proceeding between Tom Weathersby and the State. From the judgment, Weathersby appeals. Reversed, and appellant discharged.

Reversed and appellant discharged.

R. E. Bennett, of Meadville, for appellant.

The statements by appellant and his wife of the manner and conduct of deceased immediately before, and at the time of the slaying, make a perfect case of self-defense and unless contradicted by eyewitnesses or by circumstances and surrounding that would make them inconsistent with the innocence of this appellant the peremptory instruction requested should have been granted.

Wesley v. State, 153 Miss. 357; Patty v. State, 126 Miss. 94; Gray v. State, 158 Miss. 266, 130 So. 150.

Taking as true every fact which the state's evidence tended to prove, they were not inconsistent with appellant's innocence, and therefore insufficient to raise an issue for the jury.

Wesley v. State, 153 Miss. 357.

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

Where the testimony of the defendant is contradicted by other testimony or by the physical facts, then an issue arises as between such testimony, or between the testimony of the defendant and the physical facts. The jury is under no compulsion to implicitly believe all the statements of a party acknowledging the killing of the deceased person.

Wingo v. State, 81 Miss. 865, 45 So. 862.

The difference between the physical facts and the statement of appellant is sufficient to create an issue for the jury and that the appellant was not entitled to a directed verdict and it is submitted further that the evidence introduced by the state is amply sufficient to support the verdict as returned by the jury.

Argued orally by R. E. Bennett, for appellant, and W. D. Conn, Jr., for the state.

OPINION

Griffith, J.

The only eyewitnesses to this homicide were the appellant and his wife. According to their testimony a case of self-defense was sufficiently made out, as against which the state argues that there are physical facts which contradict them. It has been for some time the established rule in this state that where the defendant or the defendant's witnesses are the only eyewitnesses to the homicide, their version, if reasonable must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts...