Wells v. State, No. 48099

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtMcGEHEE
Citation305 So.2d 333
Decision Date23 December 1974
Docket NumberNo. 48099
PartiesRoger Dale WELLS v. STATE of Mississippi.

Page 333

305 So.2d 333
Roger Dale WELLS
v.
STATE of Mississippi.
No. 48099.
Supreme Court of Mississippi.
Dec. 23, 1974.
Rehearing Denied Jan. 20, 1975.

Page 334

Corr & Carlson, Sardis for appellant.

A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.

RODGERS, Presiding Justice, for the Court:

This is a unique case of rare and singular facts. The grand jury of Tunica County, Mississippi, indicted Roger Dale Wells for the murder of Wayne H. Mayes. He was tried and convicted in the circuit court and sentenced to serve a term of his natural life in the Mississippi State Penitentiary. He has appealed to this Court and contends here that he should have been acquitted of the charge of murder or in the alternative that he is now entitled to a new trial for several alleged errors hereafter mentioned.

The state offered testimony to show that two men-Charlie M. Johnson and Wayne H. Mayes (the deceased)-were traveling from their place of employment at Colliersville, Tennessee, to their homes near West Helena, Arkansas. They stopped for refreshments at the Lady Luck Lounge in Tunica, Mississippi. After drinking beer they entered into separate games. Mayes played pool and Johnson operated a pinball machine. Finally, Mayes told Johnson that he was going to the men's room and that they would then go on home. Later, Mayes staggered into the poolroom holding his neck and told Johnson that somebody had cut his head off. Johnson put Mayes on the floor and tried to stop the loss of blood, but to no avail. Mayes died immediately. A witness testified that he observed the defendant closing a knife, and he heard the defendant say, 'I killed him.' A deputy sheriff came and was given a large knife. He arrested the defendant. The defendant, Wells, after having signed a warning memorandum, admitted that he cut the deceased, but said that Mayes had been going in and across a dance floor without paying the required entrance fee; that his wife, Mrs. Wells, was taking up the admission fee for the dance; that she had requested the deceased Mayes to pay several times, and that she again requested payment, whereupon Mayes cursed Mrs. Wells. The defendant said that he then asked Mr. Mayes not to curse his wife. He said that Mayes first invited him (Wells) outside; that he refused and that Mayes said, 'Come on, I am going to get you.' Mayes then caught the defendant by the throat 'cutting off his wind.' At that point Wells got out his knife and opened it and said that he put it 'close to his throat.' I meant to scare him is all, when he saw the knife, he jumped, he jerked back, and the knife cut his throat.'

A local physician testified that he examined the body of Mayes at the Tunica County Hospital and found a deep cut on the left side of his neck about eight (8) inches long which was of sufficient depth to sever the jugular vein system. He said that the deceased died from the loss of blood.

None of the witnesses for the state saw nor heard any part of the affray between the defendant and the deceased.

When the state had rested its case, the defendant made a motion for a directed verdict. The court overruled the motion, and the defendant introduced testimony to show the following facts. Mrs. Wells, the wife of the defendant, testified that she was acting as the cashier to collect the entrance fee to a dance that was being given in a room adjoining the poolroom, and that Wayne Mayes came into the place where the dance was being held three times and

Page 335

refused to pay to go into the dance. On each occasion he informed Mrs. Wells that he was going to the rest rooms. On the last occasion he told her that he was going to the bathroom, and her husband said, 'Mr., are you getting smart with my wife?' and Mr. Mayes said, 'What's it to you?' Then he blurted out a curse word. She said Mr. Mayes then invited her husband to go outside, and the next thing she knew, Mr. Mayes 'got Roger around the throat choking him.' She then said, 'Well, I saw him he turned. As he was turning he tripped on the table leg and fell into the knife and run into the pool room.'

Mrs. Roebuck, defendant's mother-in-law, testified about the same facts as those testified to by Mrs. Wells.

The defendant took the stand and testified that he did not know Wayne Mayes and had never seen him before. He gave his version of what occurred as follows:

'Well, my wife and my mother-in-law, they were telling me about this man keep walking in and walking out without paying, and I sat there a few minutes, we was counting money, and he walked in and walked over to the jukebox; he walked back out; I didn't say nothing to him; and then my-he come back in a few minutes later and my wife asked was he going to pay, and he says something about he had to go to the bathroom; she told him to go ahead. He just stood there mumbling; and he cussed her, and I told him I didn't appreciate him getting smart and cussing my wife. He said, 'let's step outside', and he says, 'I'm going to get you.' I said, 'Ain't no need of that,' I said, 'If I was up there playing in the band-I mean if you was up there playing in the band, you'd want me to pay to come in; that's all we want just for you to pay us.' He said, 'All right, we'll just get it over with in here'. And, he reached over and grabbed me around the throat, and he had my wind cut off. I reached in my pocket and pulled my knife out, I was going to scare him, because I was scared to death, done had my wind cut off, and I put the knife up on his shoulder, and he tripped, turned around, jerked or something, and cut his neck.'

Defendant admitted that the knife introduced as an exhibit to the testimony of the deputy sheriff was the knife he said that he did not intend to 'cut nobody with it.'

We have detailed the facts in this case because the real issue is whether or not the facts are sufficient to establish the charge of murder.

At the conclusion of the testimony offered by the State of Mississipppi and again when both sides had rested their cases, the defendant requested the court to direct a verdict in favor of the defendant as to the charge of murder. The trial judge overruled both motions upon the ground that 'the statement made by the defendant may or may not be reasonable; that will be a question for the jury, not a question for the court.'

We are of the opinion that the learned trial judge was in error for the following reasons.

It will be remembered that none of the witnesses introduced by the State of Mississippi saw any part of the altercation between Mr. Mayes and the defendant Wells. The defendant and his witnesses testified that Mr. Mayes invited Mr. Wells to go outside to settle the matter and that he then seized the defendant by the throat. The defendant said he 'cut off my wind.' Mayes reached across a table to attack the defendant. The defendant claims he got his knife open and put it by the deceased Mayes' neck to scare him. Whether he intended to cut Mayes or to scare him is immaterial at this point, since we have reached the conclusion that in either case, the defendant could not be guilty of murder. The greatest crime for which he could be found guilty is manslaughter.

Page 336

The testimony of the defense witnesses is neither unreasonable nor improbable. Moreover, there is no testimony in the record to indicate malice or premeditated design by the defenant to take the life of the deceased Mayes.

There are two sections of our Mississippi Code Annotated (1972) which we find to be applicable to the facts in this case-Sections 97-3-29 and 97-3-31. The first section is in the following language:

'The killing of a human being without malice, by the act, procurement, or culpable negligence of another, while such other is engaged in the perpetration of any crime or misdemeanor not amounting to felony, or in the attempt to commit any crime or misdemeanor, where such killing would be murder at common law, shall be manslaughter.' Miss.Code Ann. § 97-3-29 (1972).

This section is applicable because there is no malice shown by the evidence. The killing occurred in a sudden fight at a time when the uncontradicted testimony shows that Mayes was attacking the defendant.

Mississippi Code Annotated Section 97-3-31 (1972) is in the following language:

'Every person who shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any unlawful act, or after such attempt shall have failed, shall be guilty of manslaughter.' Miss.Code Ann. § 97-3-31 (1972).

This section is applicable here because, if in fact it were unnecessary for the defendant to kill the deceased, the defendant was resisting an attack by the deceased. Furthermore, the defendant acted without malice or premeditated design to take the life of the deceased.

This Court has carefully analyzed and interpreted Section 97-3-31 beginning as early as 1876 in the case of Long v. State, 52 Miss. 23 (1876), in which the Court gave a history of the statute. In the case the defendant shot a man who had previously attacked him with a knife in his hand at a time, however, when the defendant was out of the reach of his assailant. The Court, however, held that an instruction embodying the statute was properly refused because the Court said in this early case: 'We do not think that it (the statute) was intended to apply to cases of mutual combat, unconnected with the commission or attempt to commit some other unlawful act by the party slain.' 52 Miss. at 41.

This interpretation of the statute here involved gradually changed. In the case of Williams v. State, 120 Miss. 604, 82 So. 318 (1919), this statute was again argued before this Court. In that case a prisoner shot a deputy sheriff who beat him to make him reveal where he had concealed a pistol. This Court originally affirmed the death sentence conviction of murder (by a divided court) upon the ground that it was a jury question as...

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28 practice notes
  • State v. Shaw, No. 2001-KA-01854-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • August 12, 2004
    ...has repeatedly applied the general rule and upheld convictions of manslaughter obtained under an indictment for murder. Wells v. State, 305 So.2d 333 (Miss.1974); Roberson v. State, 257 So.2d 505 (Miss.1972); King v. State, 251 Miss. 161, 168 So.2d 637 (1964); Calicoat v. State, 131 Miss. 1......
  • Williams v. State, No. 95-CT-01199-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • December 10, 1998
    ...the testimony at trial that Dedeaux unlawfully took the life of Luke. To discharge the defendant cannot be justified. In Wells v. State, 305 So.2d 333, 339-340 (Miss.1974), the Court In the case at bar, when the jury found the defendant guilty of murder, it necessarily found that defendant ......
  • Harper v. State, No. 55672
    • United States
    • United States State Supreme Court of Mississippi
    • October 16, 1985
    ...Trespass, of course, is a lesser included offense to every burglary. Gillum v. State, 468 So.2d 856, 861 (Miss.1985); Wells v. State, 305 So.2d 333, 338 (Miss.1975); Anderson v. State, 290 So.2d 628, 629 (Miss.1974). Ruffin v. State, 444 So.2d 839, 840 (Miss.1984) holds that lesser included......
  • Shields v. State, No. 97-KA-00612-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • October 15, 1998
    ...943 (Miss.1985); Biles v. State, 338 So.2d 1004, 1005 (Miss.1976); Anderson v. State, 290 So.2d 628, 628-29 (Miss.1974); Wells v. State, 305 So.2d 333, 337-38 (Miss.1974). The logical underpinnings for this rule, which will be termed hereinafter the "direct remand rule" for want of a better......
  • Request a trial to view additional results
28 cases
  • State v. Shaw, No. 2001-KA-01854-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • August 12, 2004
    ...has repeatedly applied the general rule and upheld convictions of manslaughter obtained under an indictment for murder. Wells v. State, 305 So.2d 333 (Miss.1974); Roberson v. State, 257 So.2d 505 (Miss.1972); King v. State, 251 Miss. 161, 168 So.2d 637 (1964); Calicoat v. State, 131 Miss. 1......
  • Jackson v. State, No. 49178
    • United States
    • United States State Supreme Court of Mississippi
    • October 5, 1976
    ...to sustain a conviction for the crime charged, but sufficient to sustain a conviction for a lesser included offense. Wells v. State, 305 So.2d 333 (Miss.1974); Anderson v. State, 290 So.2d 628 (Miss.1974); Corley v. State, 264 So.2d 384 (Miss.1972); Woodall v. State, 234 Miss. 759, 107 So.2......
  • Williams v. State, No. 95-CT-01199-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • December 10, 1998
    ...the testimony at trial that Dedeaux unlawfully took the life of Luke. To discharge the defendant cannot be justified. In Wells v. State, 305 So.2d 333, 339-340 (Miss.1974), the Court In the case at bar, when the jury found the defendant guilty of murder, it necessarily found that defendant ......
  • Harper v. State, No. 55672
    • United States
    • United States State Supreme Court of Mississippi
    • October 16, 1985
    ...Trespass, of course, is a lesser included offense to every burglary. Gillum v. State, 468 So.2d 856, 861 (Miss.1985); Wells v. State, 305 So.2d 333, 338 (Miss.1975); Anderson v. State, 290 So.2d 628, 629 (Miss.1974). Ruffin v. State, 444 So.2d 839, 840 (Miss.1984) holds that lesser included......
  • Request a trial to view additional results

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