166 So. 363 | Miss. | 1936
On an indictment charging him with the murder of Seth Kelly, the appellant was tried and convicted. The jury was unable to agree on the punishment, and the court imposed a sentence of life imprisonment in the state penitentiary.
The homicide occurred at a negro Baptist church in Jasper county. Three negroes, John Willie Carr, Carzell Carr, and Henry Moffatt, were jointly indicted for the crime. There was a motion for a severance, which was sustained, and appellant was the first one tried.
The evidence shows that the sheriff reached the scene of the homicide a very short time thereafter. He found the deceased, Kelly, lying on the ground at the eave of the church with four knife wounds on his body, one of which was a wound that extended from the back of the neck around to the front of the throat, severing the jugular vein.
The testimony of the main eyewitnesses for the state shows that these three codefendants went into that church, and, after being inside for a short time, went out. There was evidence that the defendants were "wobbly" or staggering as they left. In a short time they provoked a difficulty with one Willie Campbell on the outside of the church, and appellant, with his knife open, accompanied by his codefendants, chased Campbell to a point close to the church, where he picked up a brick or a rock. Several persons came out of the church to quiet the disturbance; one being Seth Kelly. Kelly walked to where the three were standing near Campbell, and touching John Willie Carr on the shoulder, advised him to quiet down, that they might get into trouble and it might cost them something. Immediately after this statement was made, the appellant turned on Kelly and asked him, "What is it to you?" and simultaneously cut him with a knife down the middle of the face. Kelly started backing away, with John Willie Carr advancing *106 on him with the knife. The appellant cut Kelly about the neck with his knife, and, while still backing away, Kelly got his knife out of his pocket, opened it, and attempted to defend himself by waving the knife in his hand. Carzell Carr produced a razor and joined in the attack on Kelly. Then Moffatt struck Kelly with a stick, knocking him almost, if not entirely, down. Thereupon the appellant rushed in, set his knife in the back of Kelly's neck and cut it from there to a point under the chin, severing the jugular vein and cutting his head almost half off of his body. Kelly dropped to the ground. The appellant, according to the witnesses for the state, then said, in substance, that Kelly looked good to him lying there on the ground bleeding. The appellant left the scene of the murder and went to another county and was later arrested on the streets of Newton in Newton county.
The testimony of appellant, as a witness in his own behalf, tended to make out a case of self-defense; he stated that Kelly was the aggressor and cut him with a knife before he (appellant) cut Kelly. There was evidence that Kelly had made a threat to take the life of the appellant. A witness, Vida Carr, to some extent substantiated appellant's testimony, although she did not say which of the two first cut the other.
1. The first assignment of error is that the court erred in allowing testimony as to the acts and statements of the codefendants, Carzell Carr and Henry Moffatt, during the difficulty, because there had been a severance granted and there was no proof of any conspiracy. Appellant cites the case of Browning v. State,
A strikingly similar case was considered by this court in McCoy v. State,
Under the circumstances of this case, the action of any or all of the defendants then and there present engaged in the killing was competent as a part of the res gestae.
2. It is insisted that the court erred in allowing evidence as to the difficulty between the three defendants and Willie Campbell, which started just before the homicide was committed. Appellant urges that this evidence was proof of another crime and should not have been permitted. We do not find in the record where this point was made. In his brief counsel argues that the court permitted the witness to go "too far," or too much into detail. As we read the record, Willie Campbell was the only witness who detailed the circumstances of his difficulty, and there was no objection to his testimony in this respect. That would be sufficient to dispose of the case if that were a separate crime; however, as we view this record, the difficulty which started with Campbell continued to the church door and was interrupted only by parties seeking to quell the disturbance, and the one difficulty merged directly into the other. In other words, if this be called two difficulties, each is parcel and part of the same transaction, and therefore testimony relating to either is admissible, especially when it is necessary to shed light upon the action of the parties or to understand their actions in the main transaction. In McCormick v. State,
3. Complaint is made because of the refusal of an instruction requested by the appellant. The court was clearly correct in refusing this instruction.
We find no reversible error in the record.
Affirmed.