Westbrook v. State, 36592.

CourtUnited States State Supreme Court of Mississippi
Citation202 Miss. 426,32 So.2d 251
Docket Number36592.
Decision Date13 October 1947
PartiesWESTBROOK v. STATE.

32 So.2d 251

202 Miss. 426

WESTBROOK
v.
STATE.

No. 36592.

Supreme Court of Mississippi

October 13, 1947


[202 Miss. 427] Hugh V. Wall, of Brookhaven, and C. F. Cowart, of Meadville, for appellant.

[202 Miss. 429] Greek L. Rice, Atty. Gen., and R. O. Arrington, Asst. Atty. Gen., for appellee.

[202 Miss. 430] GRIFFITH, Presiding Justice.

[202 Miss. 431] Appellant was indicted jointly with his brother, Albert Westbrook, for the murder of Paul Walker. A severance was had, and on the separate trial of appellant, hereinafter called the defendant, he was convicted.

The testimony on the part of the prosecution as well as that of the defendant, looking to the entire record, shows overwhelmingly that only two persons took part in the difficulty, the deceased being one of them, of course; and it is undisputed that only one shot was fired. Other than the two participants, the mail carrier was the only person who saw any part of the difficulty or who was near enough at the time to say dependably what happened in it. He says that he was approaching, and that as he came over the hill he saw two men tusseling in the road about 75 or 100 feet from the mailbox. He thought they were boys tusseling in the road, and that he stopped at the mailbox and gave no further attention to the two men until he had finished has duties at the mailbox and had reached the point where the men were, and there he noticed that they had separated and that one of them was staggering as if drunk, and because he feared the staggering man might get in the path of his car, he centered his attention solely on him and as he got to the man he saw that it was Walker. He did not notice and did not recognize the other party. He says he did not see any shooting and did not hear the sound of it. Other than that two persons were present and that he saw them tusseling in the road, the testimony of the mail carrier touches substantially no disputed point material to the case.

It is undisputed that defendant was beaten and bruised about the face and head, and it is undisputed that this was done by the deceased. It is undisputed that in the fight, so called, defendant's glasses were broken and it is undisputed that when the sheriff arrived and made his investigation at the scene, he picked up one of the lenses of the glasses in the road at point A, later to be more particularly mentioned.

[202 Miss. 432] Two neighbors who lived about 100 yards from the scene, as they estimate it, but [32 So.2d 252] about a quarter of a mile according to other witnesses, arrived upon it almost immediately. They testified that only one person other than the wounded man was there. They further said, however, that the other person was Albert Westbrook and that the defendant was not there. Inasmuch as the undisputed physical facts demonstrate beyond all doubt that defendant was there and inasmuch as there was present only one person other than the deceased the conclusion is inescapable that the two neighbors in their excitement mistook defendant for his...

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42 practice notes
  • Flowers v. State, NO. 2010-DP-01348-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • 19 Junio 2010
    ...hypothesis than that the contention of the State is true, and that throughout the burden of proof is on the State. Westbrook v. State, 32 So. 2d 251, 252 (Miss. 1947).¶57. Flowers's case, however, is not a case of circumstantial evidence. If an eyewitness is produced or a statement from the......
  • Flowers v. State, No. 2010–DP–01348–SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • 13 Noviembre 2014
    ...hypothesis than that the contention of the State is true, and that throughout the burden of proof is on the State.Westbrook v. State, 202 Miss. 426, 32 So.2d 251, 252 (1947). ¶ 57. Flowers's case, however, is not a case of circumstantial evidence. If an eyewitness is produced or a statement......
  • Kolberg v. State, No. 2000-KA-00786-SCT.
    • United States
    • Mississippi Supreme Court
    • 29 Agosto 2002
    ...Hester v. State, 463 So.2d 1087, 1093 (Miss.1985) and Hemphill v. State, 304 So.2d 654, 655 (Miss.1974) quoting Westbrook v. State, 202 Miss. 426, 32 So.2d 251, 251 (1947)). We must accept the evidence in the light most favorable to the State, including all reasonable, favorable inferences.......
  • Goodin v. State, No. 1999-DP-00975-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • 17 Mayo 2001
    ...of going forward misled the jury and denied him a fundamental right. In support of this argument, Goodin cites Westbrook v. State, 202 Miss. 426, 432-33, 32 So.2d 251, 252 (Miss.1947), in which this Court stated, "[i]t is fundamental that convictions of crime cannot be sustained by proof wh......
  • Request a trial to view additional results
42 cases
  • Flowers v. State, NO. 2010-DP-01348-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • 19 Junio 2010
    ...hypothesis than that the contention of the State is true, and that throughout the burden of proof is on the State. Westbrook v. State, 32 So. 2d 251, 252 (Miss. 1947).¶57. Flowers's case, however, is not a case of circumstantial evidence. If an eyewitness is produced or a statement from the......
  • Flowers v. State, No. 2010–DP–01348–SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • 13 Noviembre 2014
    ...hypothesis than that the contention of the State is true, and that throughout the burden of proof is on the State.Westbrook v. State, 202 Miss. 426, 32 So.2d 251, 252 (1947). ¶ 57. Flowers's case, however, is not a case of circumstantial evidence. If an eyewitness is produced or a statement......
  • Kolberg v. State, No. 2000-KA-00786-SCT.
    • United States
    • Mississippi Supreme Court
    • 29 Agosto 2002
    ...Hester v. State, 463 So.2d 1087, 1093 (Miss.1985) and Hemphill v. State, 304 So.2d 654, 655 (Miss.1974) quoting Westbrook v. State, 202 Miss. 426, 32 So.2d 251, 251 (1947)). We must accept the evidence in the light most favorable to the State, including all reasonable, favorable inferences.......
  • Goodin v. State, No. 1999-DP-00975-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • 17 Mayo 2001
    ...of going forward misled the jury and denied him a fundamental right. In support of this argument, Goodin cites Westbrook v. State, 202 Miss. 426, 432-33, 32 So.2d 251, 252 (Miss.1947), in which this Court stated, "[i]t is fundamental that convictions of crime cannot be sustained by proof wh......
  • Request a trial to view additional results

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