Wixon v. State, 40260

• Decision Date: 03 December 1956
• Docket Number: No. 40260,40260
• Parties: Larry WIXON v. STATE.
• Court: Mississippi Supreme Court

Page 859

90 So.2d 859

229 Miss. 430

Larry WIXON v. STATE.

No. 40260.

Supreme Court of Mississippi.

Dec. 3, 1956.

Prewitt & Bullard, Vicksburg, for appellant.

Joe T. Patterson, Atty. Gen., By J. R. Griffin, Asst. Atty. Gen., for appellee.

HALL, Justice.

Appellant was convicted of the crime of assault and battery with intent to kill and murder and was sentenced to the penitentiary for a term of ten years, from which he appeals.

Appellant contends that the verdict of the jury is contrary to the overwhelming weight of the evidence but admits in his argument that if the weight of the evidence shows as many of the State witnesses testified, then the defendant was properly convicted.

Nine witnesses testified for the State. The shooting occurred at about 2:30 A.M. on September 17, 1954, at a night club and liquor joint called the Oasis, which is situated on the north side of Highway 80 about five and a half miles east of Vicksburg. The evidence shows that the appellant was operating another night club called the Rendezvous and that he closed for the night at about 1:00 A.M. and took all the money and put it in a money sack which he carried in his left pants pocket, and that he also carried with him a 38 caliber Smith and Wesson pistol in the right pocket of his pants. He drove to the Oasis and had been there about one and a half hours when the shooting occurred. He had had some drinks before he left the Rendezvous and had also had some drinks at the Oasis. The victim, Billy Joe McFatter, went to the Oasis with his cousin Louis McFatter and his former wife who was then Mrs. Lavonne Beard. The entrance to the Oasis leads into a bar and they passed through it to the west and entered a room where there were a number of tables, all of which were filled, and they went from this room, through a double door, onto an adjoining patio, where they took, a table and invited some other people to sit with them. They ordered drinks and while they were sitting at the table the appellant and Mrs. Margaret Beasley started dancing to the music of a juke box. After one dance they sat down and later started another dance, going from the main room out onto the patio. The great preponderance of the evidence is that someone remarked that appellant was 'loaded' and the appellant replied, 'Yes, I have my money on one side and my gun on the other'. Billy Joe McFatter made the remark to some of those at his table 'Wixon has got his money and gun'. The woman with whom Wixon was dancing said that McFatter remarked 'That guy is really loaded tonight', and that the appellant said, 'Yes, a gun on one side and money on the other'. And she testified that while they were dancing immediately following this, the appellant remarked, 'That kind of made me mad when Billy Joe said that', and she testified that she said to appellant, 'He was probably just kidding and didn't mean anything by it'; and at this point the appellant turned her loose and walked toward the table where McFatter was seated and she heard a shot that she thought was a firecracker but it proved to be a shot from the appellant's pistol which struck McFatter and inflicted a most serious wound upon him which required immediate surgical attention and hospitalization for a period of three months or more. Two of the eyewitnesses testified for the State that immediately before or immediately after the shooting the appellant said, 'Ain't no s. o. b. going to make fun of me.'

Taken as a whole the testimony for the State shows that the appellant shot the victim deliberately and without any cause whatsoever. There was a wall about four feet high around the patio and the appellant threw the pistol over the wall and into the woods. As soon as the appellant learned that McFatter was wounded he readily admitted that he did the shooting and, when the sheriff arrived a short time later, he told the sheriff, 'I am the man you are looking for. I shot him.' Upon being questioned by the sheriff as to why he shot him the appellant said that he really did not know but that someone had said something about him and that he didn't like any kidding. The sheriff was unable to find the gun that night but did find it in the woods shortly after daylight at the place where appellant told the sheriff he had thrown it. The sheriff questioned numerous people who were present and none of them said that it was an accident. But at the trial the appellant testified that he first pulled his money sack out of his pocket and then he started to pull the pistol out and that the pistol got caught in his pocket and fired accidentally. Several of those present testified that the appellant stopped dancing with Margaret and walked over toward McFatter's table and deliberately fired at him one time. The appellant admitted he was drinking and said that when a man takes his first drink he is drunk. He also said that he was about as drunk as any of the rest of those present. Taking the record as a whole we are satisfied that the verdict is not against the overwhelming weight of the evidence...