Weir v. State, 44995
| Decision Date | 22 September 1969 |
| Docket Number | No. 44995,44995 |
| Citation | 226 So.2d 733 |
| Parties | Henry S. WEIR, Jr. v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Burgin, Gholson & Hicks, Gary R. Parvin, Columbus, for appellant.
A. F. Summer, Atty. Gen., by Guy N. Rogers, Asst. Atty. Gen., Jackson, for appellee.
Appellant, Henry S. Weir, Jr., was indicted, tried and convicted in the Circuit Court of Monroe County for the crime of shooting into an occupied dwelling. He was sentenced to serve a term of seven and a half years in the State Penitentiary, with five years suspended on good behavior. From this conviction and sentence he appeals. We affirm.
The proof on behalf of the State establishes that about 10:30 A.M. on the morning of December 31, 1966, shots were fired into the dwelling owned by W. L. Smith and located in the City of Amory. At that time Brenda Kay Smith, his daughter, aged fourteen, her grandmother, and her friend Mary Egile were in the house. The girls were in the den when they heard a noise they first thought to be a fire cracker, but then something broke the window in the room where they were sitting. They looked out the window and saw appellant standing about 140 feet away with a rifle in his hand pointing toward the house. The girls went outside and approached the place where appellant was standing. Appellant started to get in his car and Brenda Kay said to him, 'Henry Weir you have had it.' The girls then started back toward the house and appellant fired another shot which caused the girls to run into the house. Appellant then left and Mrs. Smith called the police. Officers Martin and Elliott answered the call. Their investigation revealed a bullet had gone through the window in the den, then through a folding door between the den and living room. They followed the path of the bullet and found the place where the bullet had struck the wall, but only dented it. They searched the room and found the bullet on the couch near where it had struck the wall. The officers left and shortly thereafter found appellant in downtown Amory near the bank where they arrested him.
On January 2, 1967, Chief of Police Noble Garrett and another officer went back to the Smith home and they found a bullet imbedded in the frame of the living room door and another in the corner of the carport. These bullets were removed and they, together with the bullet found on the couch, were identified at being .22 calibre.
Brenda Kay testified that she had known appellant for about three years and that she had gone to the show with him on one or two occasions. She said that on the following day she saw appellant at the picture show and she asked why he did it. He told her it was because she liked another boy and did not like him. When she asked him what he did with the gun, he said he threw it in the Tombigbee River.
Appellant testified in his own behalf and denied that he shot into the house or that he was anywhere near the Smith home on the day in question. He denied that he had a .22 rifle or any other type of gun. He said that he was at home on the morning in question and that he slept until about 10:15 when he got up, dressed and drove to the Bank of Amory where he cashed a check. As he was leaving the bank and returning to his car he was arrested and confined in jail until the following morning. He denied that he saw Brenda Kay on the next day or that he had any conversation with her or that he ever admitted that he shot into the house. His father and mother testified that they left home about 10 A.M. on the morning in question and when they left, appellant was in bed asleep.
Appellant first contends that the only instruction granted the State was defective for the reason that it did not require the jury to exclude every other reasonable hypothesis before finding appellant guilty. The basis for this argument is that the State's case is based solely on circumstantial evidence and that under such circumstances the State is required not only to prove the defendant guilty beyond a reasonable doubt and to a moral certainty, but also to the exclusion of every other reasonable hypothesis and that the jury must be so...
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