White v. State, 49007

• Decision Date: 27 April 1976
• Docket Number: No. 49007,49007
• Citation: 330 So.2d 877
• Parties: Gregory WHITE v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 877

330 So.2d 877

Gregory WHITE v. STATE of Mississippi.

No. 49007.

Supreme Court of Mississippi.

April 27, 1976.

Dyer, Dyer & Dyer, Greenville, for appellant.

A. F. Summer, Atty. Gen., by John C. Underwood, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before GILLESPIE, C.J., and ROBERTSON and LEE, JJ.

LEE, Justice, for the Court:

Gregory White was convicted in the Circuit Court of Washington County, Mississippi, on a charge of manslaughter and was sentenced to serve a term of eight (8) years in the Mississippi State Penitentiary. This is the second appearance of the case before this Court. On the first trial, White was found guilty of manslaughter, and the case was reversed because the State failed to identify the victim's body as being the body upon which an autopsy was performed.

On the night of January 11, 1973, appellant and Frederick Slayton were riding in an automobile driven by Archie Hampton in the City of Leland. They saw Russell Reynolds, the deceased, walking along the street, and Slayton told Hampton to let him out of the car. He got out of the car, started toward Reynolds, and appellant followed him. Appellant told the Chief of Police in his own handwritten confession, 'We got out of the car. Freddie and I to do to him what he did to the girl Bernadine in order to let him know how it felt being treated like that.' Reynolds walked hastily away from them, but they caught up with him.

Slayton hit Reynolds twice on the side of the head. He fell against an automobile and to the ground. Slayton kicked at Reynolds, and Reynolds caught Slayton's feet. Appellant testified that at that point he kicked Reynolds on the leg. Archie Hampton testified that he saw appellant kick at Reynolds toward his midsection. Slayton and appellant then went back to the car and left Reynolds lying in the street.

Officer Travis Jenkins of the Leland Police Department was dispatched to the scene. He found Reynolds lying face downward in the street in a pool of blood. There was considerable blood on the left side of his face and head. Reynolds was taken to a local hospital where he remained approximately twelve (12) hours and was transported thence to the Veterans Administration Hospital in Jackson where he expired on February 12, 1973, without having regained consciousness.

The medical evidence and autopsy indicated that the deceased received massive trauma to the left side of his head and lacerations and bruises above his left hip and over his lower legs and forearms. The cause of death was cerebral contusions, the immediate cause being bilateral pneumonia.

Appellant first contends that the trial court committed reversible error in granting the State's Instruction Nos. S-3 and S-5, and in refusing to grant appellant's requested Instructions Nos. D-4, D-5, and D-12.

The State's Instruction No. S-5 told the jury that, if they believed from the evidence beyond reasonable doubt appellant, together with another person, intentionally sought out and assaulted the deceased with their fists and by kicking him with their feet, and that the deceased died as a result thereof, the jury should find defendant guilty. The instruction covered the State's evidence from the time that Slayton and appellant got out of the car, went to the place where Reynolds was, overtook him, struck and kicked him. The jury could have found that the two men, acting together, intended from the beginning to assault the victim.

In Gibbs v. State, 223 Miss. 1, 77 So.2d 705 (1955), this Court said:

"In the absence of a conspiracy or common design the evidence must be sufficient, even in cases where the killing occurred in the course of a joint assault or affray, to show either that accused struck the fatal blow or aided and abetted therein. To justify the conviction of one who was not the actual slayer, where the proof does not show any prearrangement, conspiracy, or common design, the evidence must be sufficient to show that accused aided or abetted the actual slayer by overt act of assistance or oral expression of encouragement.' 41 C.J.S. Homicide § 322.' 223 Miss. at 6, 77 So.2d at 707.

The State's Instruction No. S-3 charged the jury that each person present, consenting to the commission of an offense, and doing any act which is an ingredient or immediately connected with it, or leading to its commission, is a principal to the same extent as if he committed the whole crime.

In McCoy v. State, 91 Miss. 257, 44 So. 814 (1907), we said:

'In Wharton on Homicide (3d Ed.), at pages 49 and 50, it is said: 'Each person present, consenting to the commission of the offense and doing any act which is an ingredient in the crime, or immediately connected with it, or leading to its commission, is as much a principal as if he had with his own hand committed the whole offense. Aiding in the commission of a homicide makes the aider a principal. To render one criminally responsible as a principal in a homicide, it is not necessary that he should inflict the mortal wound. It is sufficient that he was present, doing or abetting the act; and this is so, though there was no common design to kill or injure'--citing authority. See, also, Jordan v. State, 81 Ala. 20, 1 So. 577, and Wynn v. State, 63 Miss. 260, as shedding material light on this point.' 91 Miss. at 267, 44 So. at 817.

In Bass v. State, 231 So.2d 495 (Miss.1970), the Court said:

'There were no error in the court granting the State an instruction that any person, acting with others in the commission of a crime and aiding and abetting therein, are responsible as principals for the...