Burks v. State

57 So. 367 | Miss. | 1911

Smith, J.,

delivered the opinion of the court.

This appeal is from a conviction of the crime of murder. According to the evidence for the state, appellant met the deceased, asked him for his (appellant’s) dime, and, upon deceased declining with an oath to give him his dime, that appellant shot and killed him. The evideuce for the appellant tended to show that, when appellant asked deceased for his dime, deceased refused to give it to him, with an oath started toward appellant in a threatening manner, put his hand to his hip pocket as if to draw a weapon, and that thereupon appellant shot and killed him. Appellant offered to prove that earlier in the dáy deceased, with a shotgun, had forced appellant to give him a dime, which appellant had and which deceased claimed, and that when the gun was taken away from him deceased obtained another gun and came back, threatening to kill appellant, who fled upon learning of his approach; that when he failed to find appellant he threatened to kill other parties if they did not tell him where appellant was, and said, if he saw appellant and Albert Porter “between this and sundown, one or the other of them had to die.” This evidence was by the court, over the objection of appellant, excluded. This was fatal error. Brown v. State, 88 Miss. 166, 40 South. 737, and authorities there cited.

Reversed and remanded.