West v. State, 38827

• Decision Date: 19 October 1953
• Docket Number: No. 38827,38827
• Citation: 67 So.2d 366,218 Miss. 397
• Parties: WEST v. STATE.
• Court: Mississippi Supreme Court

Page 366

67 So.2d 366

218 Miss. 397

WEST v. STATE.

No. 38827.

Supreme Court of Mississippi.

Oct. 19, 1953.

R. M. Allen, J. M. Forman, Indianola, for appellant.

J. P. Coleman, Atty. Gen., by Joe T. Patterson, Asst. Atty. Gen., for appellee.

McGEHEE, Chief Justice.

On Wednesday night, April 16, 1952, the appellant, Herman Lee West, a 31 year old tenant share-cropper in Sunflower County, killed his wife, Mrs. Gene West, who was 21 years of age, carried the body some distance from their residence and left it in a weed patch until he could return to the house and get a shovel to dig a hole in an attempt to conceal the crime. The body was not found until on the following Monday when he pointed out to the officers and others its whereabouts in the weed patch, covered with about 6 inches of earth. At the September term of court thereafter he was convicted of the crime of murder and sentenced to be electrocuted in the death chair.

The said accused was represented by counsel who were appointed by the court to defend him, and they have raised by their assignment of errors and brief a number of grounds which they contend would require a reversal of the case for a new trial.

It is first contended that the conviction of murder is against the overwhelming weight of the evidence, since the confession of the killing by the accused and all of his statements or admissions against interest in regard thereto, in the absence of other proof thereof, disclosed that he was guilty of no greater offense than that of manslaughter. The issue of whether the accused was guilty of murder or manslaughter was submitted to the jury under proper instructions, and that issue is ordinarily one for the determination of the jury.

When the disappearance of Mrs. West from her home was noted, the accused claimed to one of the neighbors that on the night of Wednesday, April 16th, his wife's sister from Arkansas came to the home before midnight in an automobile in company with a man and that Mrs. West went out to the car, talked with them, and then returned into the house and got some clothing and stated to her husband that she was going with her sister. He did not at that time elaborate on this story.

On Thursday, April 17th, another neighbor, Mrs. Minnie Bell Slack, who lived 200 or 300 yards from the West home, and who doubted the truthfulness of the story as to the alleged disappearance of Mrs. West in company with her sister, went to Arkansas where she evidently reported to the family of the deceased the story of her disappearance, and with the result that on the following Sunday a peace officer in Arkansas telephoned the sheriff of Sunflower County, Mississippi, and caused him to start an investigation. A deputy sheriff went to the home of the accused on that afternoon and was told the same story by him that he had previously related to a neighbor.

On the following day this deputy together with W. W. Billings, the chief deputy sheriff, Mr. Kilburn, the father of Mrs. West, and a deputy sheriff from Mississippi County, Arkansas, went to the West home where Billings talked to the accused on the front porch and the accused then repeated his story as to his wife's disappearance and claimed that she carried with her a gold colored satin dress, a brown dress, etc., when she left home on the previous Wednesday night.

Thereupon the accused was taken into custody, carried to the town of Drew in Sunflower County, where all of the occupants of the car got out of the same except Deputy Billings and the accused. Billings then drove out to the edge of the town, stopped the car and informed the accused that from the information that he had gained from others the accused had not told the truth as to the whereabouts of his wife and that the deputy intended to take him to Indianola to jail and then return to the West home with sufficient help to make a thorough search of the premises for the body of the deceased; thereupon the accused admitted that he had killed his wife and stated that he would go with the officer and show him where he buried her; and that a Board of Inquest was then organized and that the members thereof together with the officers assembled at the West home where the accused pointed out the place where he had buried the body some distance from the house.

At the scene where the hole had been dug and the body covered with dirt one of the officers removed the dirt and first discovered a pillow slip on top of the body, which contained a nightgown and the other clothing which met the description that the accused had previously claimed his wife carried with her when she left home on the previous Wednesday night. We pause here to comment that although it is contended on behalf of the accused that his mentality is such that he should not be executed for his alleged crime, he had sense enough to realize that some of his wife's clothing had to be missing from home if she had left on a journey or visit to her sister in Arkansas, and he therefore placed the clothing above described in the hole with the body when he buried it and in order that these dresses might not be later found in the house.

After removing all of the dirt from around the body, a photograph was taken of the body and the pillow slip which contained the clothing. The body was then removed from the 'grave' and another photograph was taken which disclosed the brutal manner in which the deceased had been beaten to death, and also showed two or three cut places on her stomach through which a good portion of her intestines had protruded. At first the accused claimed that these cut places were evidently made by the point of the shovel when he was burying the body. Other photographs were taken showing the scene where the body was buried and the four photographs were introduced in evidence over the objection of the defendant at the trial on the ground that they were incompetent, irrelevant and immaterial on any issue of fact in the case, and only tended to inflame the minds of the jurors and to prejudice them against the defendant to such an extent as to cause them to render a verdict which called for the infliction of the death penalty.

The introduction of these photographs is assigned as error on this appeal, and also the fact that one of the photographs together with certain testimony offered by the State, served to disclose that the accused had dug another hole near where his wife's body was buried and that this second hole was about 3 feet long and about 12 inches deep and caused the jury to infer that the accused had intended to return to the house and kill the little West boy who was then asleep, and who was the only other person in the home on the night of the killing, and who was left at the home of a neighbor on the next day after the disappearance of his mother.

After the taking of the photographs and the removal of the body of Mrs. West from the scene where it was found, some of the members of the Board of Inquest and the officers went to the West home, and with the expressed consent of the accused they made a search of the house and found a bloody butcher knife behind the stove and also some blood on the floor in the bedroom, which blood appeared to have been partially scrubbed up, the accused then stated in substance that instead of having made the cuts on the stomach of Mrs. West with the shovel in burying her body, he had gotten the butcher knife when he returned to the house for the shovel and that he thus cut her body with it at the grave after her death.

Thereupon...