87 So. 2d 919 | Miss. | 1956
On December 29, 1955, appellant was convicted of the murder of Edward Handy and was sentenced to death. The facts disclosed by the testimony of three eye-witnesses and disputed only by the appellant are as follows: Handy owned a Mercury automobile and lived in Long Beach, Mississippi. He was employed to carry Carrie Woods and Ernest Johnson to Pass Christian; They both lived in the home of Ella Johnson in Long Beach. Handy' drove to this place áiid picked up Carrie Woods and Ernest Johnson. Ella was in the yard at the time, which was between three and four o’clock P.M. on July 9, 1955. Belina owned an automobile which was hard
Carrie Woods, Ernest Johnson and Ella Johnson all testified that Belina stabbed Handy at a time when Handy had no weapon upon him and before he had ever gotten to the bad.!: of his car to get out the grass blade. Belina denied this and claimed that he did not stab Handy until Handy opened the trunk of his car and was getting out the grass blade. Thus there was an issue of fact for the jury, which the jury resolved against the appellant. Appellant’s first complaint is that the trial court erred in granting the following instruction for the State:
" The Court instructs the jury for the state that if you believe from the evidence beyond every reasonable doubt and to a moral certainty that the defendant, Nauldon Belina, did wilfully, unlawfully, feloniously and of his malice aforethought kill and murder the deceased, Edward Handy, by stabbing him with a knife at a time when the deceased was making no overt act toward the defendant and at a time when the said Nauldon Belina was not acting unnecessary self-defense and if you further believe from the evidence beyond every reasonable doubt that the defendant, Nauldon Belina, stabbed the deceased, Edward Handy, as aforesaid with the deliberate design to effect the death of the said Edward Handy and not in necessary self-defense, then the defendant would be guilty of murder, and it would be your sworn duty to say so by your verdict; and the Court further instructs you that this would be true even though you may believe that after the fatal stabbing occurred, if in fact you find it to have occurred as aforesaid, beyond every reasonable doubt from the evidence that the deceased after being stabbed and prior to his death committed a violent assault upon the person of the defendant, Nauldon Belina.”
The indictment in this case charged the defendant with the murder of Edward Handley. During the course of the trial it developed that the deceased’s name was Edward Handy. Thereupon the district attorney moved the court for leave to amend the indictment so as to correctly spell the name of the deceased, and the court sustained this motion. He was eminently justified in so doing under the provisions of Section 2532 of the Code of 1942, and committed no error in so doing.
Some time before the trial of appellant his mother employed Mr. William Estopinal to defend him. On the day before the trial began, a brother of the appellant employed Messrs. White and Lindsey. The latter attorneys filed a motion for a new trial on the ground that the appellant was deprived of his constitutional right to be represented by counsel in that Mr. Estopinal did not cooperate with them in the trial of the case. Testimony was taken upon the hearing of the motion for a new trial and Mr. White and Mr. Lindsey testified, and both admitted that it was agreed that Mr. Estopinal would be the leading counsel. The court dictated into the record an opinion at the close of the testimony on the motion for a new trial and stated that in his opinion that a review of the whole record will show that appel
Affirmed, and Friday, July 27, 1956, is hereby fixed as the date of execution.
ON MOTION TO SET NEW EXECUTION DATE
Appellant was convicted for murder by the Circuit Court of Harrison County, Mississippi, on December 29, 1955, and was sentenced to death, and upon appeal to this Court the judgment of the trial court was affirmed on June 4, 1956, and the date of execution of the death sentence was fixed for July 27, 1956. Belina v. State, 87 So. 2d 919. Appellant then filed in the Supreme Court of the United States a petition for writ of certiorari, which Court on December 3, 1956, denied said petition in Cause No. 266, Misc. October Term 1956. The mandate from the Supreme Court of the United States was duly filed in this Court on December 8,1956, and, the date formerly' set 'for execution having passed, the State has filed in this Court a motion to have another date fixed for execution of the death sentence on appellant.