Weathersby v. State

Citation48 So. 724,95 Miss. 300
CourtUnited States State Supreme Court of Mississippi
Decision Date22 March 1909
PartiesJULIUS WEATHERSBY v. STATE OF MISSISSIPPI

March 1909

FROM the circuit court of Lincoln county, HON. MOYSE H. WILKINSON Judge.

Weathersby appellant, was indicted and tried for the murder of one Emanuel Miller, was convicted, the jury failing to fix his punishment at imprisonment for life in the penitentiary thereby subjecting him under the statute, Code 1906, § 1229, to the death penalty.

The defendant's motion for a new trial because of newly discovered evidence was overruled by the trial court. The homicide occurred May 22, 1908; the indictment was found May 23, 1908, and defendant was put to trial and convicted June 3, 1908. In view of the opinion of the court a further statement of the facts is deemed unnecessary.

Judgment reversed and cause remanded.

A. C. & J. W. McNair, for appellant.

The court below erred in not granting the defendant a new trial because of newly discovered evidence. A statement of the facts, we think, demonstrates this to be true. The May term, 1908, of the circuit court commenced on the third Monday of the month, May 18th. The homicide occurred on Friday, May 22nd, during the term of the court. The indictment was presented by the grand jury on the 23rd, and the defendant was arrested and incarcerated in the county jail on the same day, and on June 3rd the defendant was tried and convicted. The defendant is a negro boy about nineteen years old, unfamiliar with the courts and the requirements of the law in such cases. He was confined in the jail from the time of his arrest to the day of his trial. He did not succeed in employing counsel to defend him until some two or three days after he was placed in jail. The affidavits of defendant and counsel show that he used and exercised all diligence in seeking to learn the true facts environing the homicide, and of witnesses who saw, or knew, or might have seen or known of the facts of the homicide. It is shown by the affidavits of defendant and counsel, that E. B. French, a white man, while a resident of Brookhaven, was a stranger to defendant and counsel. That they did not know until the progress of the trial that there was such a man in existence as French. And that they did not know, and could not know, what facts were within French's knowledge, and that prior to the trial they had no reason to believe that there was an eye-witness to the homicide other than the witnesses subpoenaed for the state and the defendant. That they were informed, for the first time, of the fact to which French would testify during the trial, when the state had nearly completed the examination of its witnesses; that counsel immediately had a subpoena issued for French and imparted to the trial judge their information. French was at the time in Natchez but was expected by his employers to return on an incoming train, and the court below delayed the trial of the case for some hours to await the train. French did not come on the train, and not for a day or two after the termination of the trial.

French states, in his affidavit, filed as exhibit to the motion for a new trial, that he was at the time of the killing about thirty yards from defendant and the decedent, had an unobstructed view, and that he saw the first shot fired by defe...

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9 cases
  • De Angelo v. State
    • United States
    • United States State Supreme Court of Mississippi
    • 11 Diciembre 1939
    ...... the defendant. . . Bryant. v. State, 172 Miss. 210, 157 So. 346; McCearley v. State, 97 Miss. 556, 52 So. 796; Bates v. State, 32 So. 915; Buckner v. State, 81 Miss. 140, 32 So. 920; Turner v. State, 89 Miss. 621, 42. So. 165; Weathersby v. State, 95 Miss. 30, 48 So. 724; Williams v. State, 99 Miss. 274, 54 So. 857;. Watson v. State, 96 Miss. 369, 50 So. 627; Campbell. v. State, 123 Miss. 713, 86 So. 513. . . The. trial court erred in overruling the defendant's motion. for a new trial on the ground that the verdict ......
  • Fisher v. State
    • United States
    • United States State Supreme Court of Mississippi
    • 15 Noviembre 1926
    ...... Ind. 93. . . IV. The. court erred in overruling appellant's motion for a new. trial. 2 Ld. Ken. 53 per L. MANSFIELD; Miller v. Ross, 42 N. J. 552; L. N. O. & F. R. R. Co. v. Crayton, 69 Miss. 152, 12 So. 271; Williams v. State, 99 Miss. 274, 54 So. 857; Weathersby v. State, 95 Miss. 300, 48 So. 721; Patterson v. Romspeck, 81 Ga. 808, 10 S.E. 9; Barrentine v. State, 51 So. 275; Roundtree v. State, 107. Miss. 166; Campbell v. State, 123 Miss. 113;. McDearly v. State, 52 So. 796. . . V. The. court erred in permitting Dr. T. N. Dye ......
  • Jones v. State
    • United States
    • United States State Supreme Court of Mississippi
    • 20 Febrero 1933
  • Steward v. State
    • United States
    • United States State Supreme Court of Mississippi
    • 7 Octubre 1929
    ...... . Where. in a prosecution for homicide, accused, after conviction,. applied for a new trial on account of newly-discovered. evidence which, if true, would seriously shake a material. part of the state's evidence in chief, a new trial should. be granted. . . Weathersby. v. State, 48 So. 724; McLeary v. State, 52 So. 796; Watson v. State, 96 Miss. 396, 50 So. 627;. Williams v. State, 54 So. 857. . . Geo. T. Mitchell, Attorney-General, and W. A. Shipman, Assistant. Attorney-General, for the state. . . The. court will not interfere with ......
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