94 So. 2d 925 | Miss. | 1957
The appellant, R. K. Black, was indicted in Lowndes County for assault and battery with intent to kill and murder Jimmy R. Duncan. He was tried for the said alleged crime and convicted of simple assault and battery, and was sentenced to serve six months in the county jail and to pay a fine of $500.00.
The proof further discloses that it became necessary for Duncan’s leg to be amputated. It appears, that the said witness was shot with a 12 guage automatic Browning shotgun, which the defendant admitted leaving the Magnolia Inn to get and bring from his car into the place where the other persons were assembled, but the accused contended that he went and got the gun to show it to one Jones and that Duncan grabbed the gun when the accused entered the room and also grabbed the accused around the neck, and that the gun was accidentally fired in a tussle over the possession of it. Duncan denied having touched either the gun or the defendant at all and testified that he was shot by the defendant when he was standing three or four feet away from him.
Wilber Yarbrough, a witness for the State, testified that he saw the defendant before he came back with the gun and that he was almost drunk. One of the defense witnesses, Jones, testified that the defendant had drunk both whiskey and beer prior to the shooting. The witness Yarbrough testified that Duncan neither touched the defendant nor the shotgun before he was shot.
Another state witness, Bobert Baker, testified that the defendant and Jones “got to arguing over a check, ten
There seems to be no explanation as to why the defendant would have shot Duncan unless he intended the shot for Jones or unless the shooting was accidental and the result of a tussle over the gun between the defendant and Duncan.
The father of the defendant testified that he went to see Duncan in the hospital and that the latter told him that when the defendant returned to the room with the shotgun that he thought that he intended to shoot someone and that he grabbed the gun and that in the tussle the gun was accidentally fired. Duncan denied having made this statement to the father of the defendant. A patient in the hospital, who had been in an automobile wreck, testified that Duncan made a similar statement to him. There was also testimony that the chief prosecuting witness had made the statement that if the defendant would make a settlement with him that he would drop the criminal prosecution.
The sheriff testified that there was an empty shell in the barrel of this automatic shotgun when it was turned over to him at the scene of the shooting. It was shown that such a shotgun is supposed to eject the empty shell after the gun has been fired, and it was further testified that if someone else had hold of the barrel of the gun at the time it was fired the shell might not be ejected.
Prom the substance of the foregoing testimony it will be readily seen that the question of whether or not this shooting was intentional or accidental was peculiarly
We do not think that the defendant was entitled to a directed verdict in his favor and we are unable to say that the conviction was against the overwhelming weight of the evidence. We have carefully considered the other assignments of error and we do not think that either of them was well taken.
The judgment of the trial court under the verdict of the jury and the sentence is therefore affirmed.
Affirmed.