Williams v. State
| Decision Date | 13 April 1931 |
| Docket Number | 29288 |
| Citation | 160 Miss. 223,133 So. 661 |
| Court | Mississippi Supreme Court |
| Parties | WILLIAMS v. STATE |
1 HOMICIDE.
In prosecution for unlawful and felonious attempt to kill evidence held insufficient to support conviction.
2. CBIMINAL LAW.
Where defendant at close of.evidence made no request for peremptory instruction, Supreme Court, upon reversing conviction for insufficiency of evidence, could not enter final judgment.
APPEAL from circuit court of Alcorn county, HON. C. P. LONG, Judge.
Eddie Williams was convicted of an unlawful and felonious attempt to kill and murder a named person, and he appeals. Reversed, and cause remanded.
Reversed and remanded.
Ely B. Mitchell, of Corinth, for appellant.
It is an admitted fact that the officers had a search warrant to search the home of Eddie Williams. It is just as clear from this record that the search warrant was in the possession of J. R. Henderson, marshal of Rienzi, who was with C. D. Meeks, sheriff of Alcorn county, some distance from the house, when J. W. Mincey and other officers entered the house for the purpose of searching for intoxicating liquor. Since their entrance into the home was illegal, the evidence which they obtained there was not admissible. The evidence of all the state's witnesses should have been excluded, and a peremptory instruction given to the defendant.
The burden was upon the State to show beyond a reasonable doubt and to a moral certainty that Eddie Williams did attempt to discharge the gun and if the state failed to show this, it was the duty of the jury to acquit the defendant.
Eugene B. Ethridge, Assistant Attorney-General, for the state.
The testimony of the state's witnesses was correctly admitted despite absence of search warrant.
In this case, although the officers entered the home of appellant without having produced a search warrant and without having complied with the law in that respect, testimony of an assault by the appellant with intent to kill is admissible because it has nothing to do with any evidence obtained as a result of an unlawful search; but is in itself a separate and a distinct infraction of the law.
Wilkinson v. State, 143 Miss. 324.
The verdict was in accordance with the evidence and the law supported by sufficient testimony.
In the circuit court of Alcorn county the appellant was convicted of an unlawful and felonious attempt to kill and murder one J. W. Mincey, and was sentenced to serve a term of five years in the state penitentiary, and from this conviction and sentence he prosecuted this appeal.
According to the testimony offered by the state, certain officers of Alcorn county secured a warrant authorizing a search of the appellant's home and premises for intoxicating liquors. With this warrant in the possession of one of these officers, a party of seven men proceeded to the appellant's home. When they were near his home, these men separated into two parties, one party of three, with the search warrant in the possession of one of them, approaching the appellant's home from the rear, while the other party, composed of four men, approached the front of the house. While the latter party was watching the front of the house, they saw the appellant drive up to, and enter, it. They followed almost immediately, and pushed the door open and entered the room where the appellant's family and other people were seated around a...
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