Will Grubbs v. State
| Decision Date | 09 October 1933 |
| Docket Number | 30787 |
| Citation | 167 Miss. 224,149 So. 797 |
| Court | Mississippi Supreme Court |
| Parties | WILL GRUBBS v. STATE |
APPEAL from the circuit court of Hinds county HON. W. H. POTTER Judge.
(In Banc.)
John B Higgins and A. R. Shoemaker, both of Jackson, for appellant.
It was incumbent upon the state to prove first, beyond a reasonable doubt, that defendant's use of the pistol was felonious and the instruction should have been so worded, but as given the jury were virtually instructed that it is presumed that defendant's use of the deadly weapon was felonious, and that this being true, malice is presumed. This placed an undue burden upon appellant.
Lamar v. State, 63 Miss. 265; Batiste v. State, 147 So. 318; Walker v. State, 146 Miss. 510, 112 So. 673; Cumberland v. State, 110 Miss. 521, 70 So. 695; Smith v. State, 161 Miss. 430, 137 So. 96; Winchester v. State, 163 Miss. 462, 142 So. 454.
Where defendant was the only eyewitness to the homicide, his version must be accepted, unless substantially contradicted in material particulars by credible witnesses, physical facts, or facts commonly known. W. D. Conn, Jr., Assistant Attorney-General, for the state.
Threats made under such circumstances, as the record discloses these were made, are admissible as tending to show the state of mind existing between the principals to this homicide prior thereto, as bearing on the question of who the aggressor was---as well as for the purpose of showing a malicious killing.
Cordell v. State, 136 Miss. 293, 101 So. 380; Clarke v. State, 123 Miss. 147, 85 So. 188; Smith v. State, 152 Miss. 114, 118 So. 710; Hardy v. State, 143 Miss. 352, 108 So. 727. Argued orally by A. R. Shoemaker, for appellant, and by W. D. Conn, Jr., for the state.
The evidence supports the verdict, and the ruling on the admission of the evidence complained of is unexceptionable.
The defendant's requested instruction not granted was properly refused, and the challenged instruction granted the state presents no error, in the light of the record, if error at all.
APPEAL from the circuit court of Hinds county HON. W. H. POTTER, Judge.
Affirmed.
John B. Higgins and A. R. Shoemaker, both of Jackson, for appellant.
It was incumbent upon the state to prove first, beyond a reasonable doubt, that defendant's use of the pistol was felonious, and the instruction should have been so worded, but as given the jury were virtually instructed that it is presumed that defendant's use of the deadly weapon was felonious, and that this being true, malice is presumed. This placed an undue burden upon appellant.
Lamar v. State, 63 Miss. 265; Batiste v. State, 147 So. 318; Walker v. State, 146 Miss. 510, 112 So. 673; Cumberland v. State, 110 Miss. 521, 70 So. 695; Smith v. State, 161 Miss. 430, 137 So. 96; Winchester v. State, 163 Miss. 462, 142 So. 454.
Where defendant was the only eyewitness to the homicide, his version must be accepted, unless substantially contradicted in material particulars by credible witnesses, physical facts, or facts commonly known.
W. D. Conn, Jr., Assistant Attorney-General, for the state.
Threats made under such circumstances, as the record discloses these were made, are admissible as tending to show the state of mind...
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