91 So. 338 | Miss. | 1922
Lead Opinion
delivered the opinion of the court.
The appellant Avas convicted of the murder of T. C. Bullock, sentenced to suffer death, and from said judgment appeals.
The deceased, Bullock, Avas an assistant manager on the “Neblett” or “Virginia” plantation, said plantation being knoAArn by both names. The killing occurred in the latter part of December, 1920. Fletcher had been a tenant upon the premises, and had removed from the premises, the evening before the-killing. On the morning of the killing he had gone back to the place where the manager lived, near Avhich Avas a blacksmith shop. At the blacksmith shop he met Mr. Bullock, and some conversation occurred, in which Mr. Bullock asked Fletcher where Fletcher’s Avife was, and he told him that he had moved her to her uncle’s as he told him he Avas going to do. Mr. Bullock asked the defendant to go to the house and see Mr. Brown, the manager. According to the state’s witnesses, Fletcher replied that he Avould not go to the house, and, if Mr. Brown wanted to see him, that he Avould have to come out there. Bullock directed him to go on to the house, Avhich the defendant refused to do. The defendant rode up to a boy named Shed Lee, and asked him for the makings of a cigarette.
The witness Lee was an eyewitness, but seemed to ha ye been badly frightened. He said that he saw Mr. Bullock approach towards where the defendant was sitting on his mule, the defendant haying a shotgun resting on his thigh, the gun standing up, and had his arm around the gun, rolling a cigarette. That Mr. Bullock had his right hand in his coat pocket, and with his left hand reached up and demanded of the defendant that he give him his gun. The defendant fell from the mule, and fired at the deceased, Bullock. This witness could not state whether he heard a pistol shot or not, but claims to have seen the transaction until the shooting ceased, when he ran away. He said at the time of the shooting he could not see Mr. Bullock’s hand, and could not say whether Bullock shot, or, if he shot, whether he shot first or whether the defendant shot first.
The mule on which the defendant was sitting was shot through the neck with a pistol bullet. The bullet entered the mule’s neck about halfway between the head and shoulders, and ranged upward and in the direction of the body of the mule, and made its exit about three-quarters of an inch below the mane on the opposite side. .
After Bullock fell his wife came out and took the pistol. . The body of Bullock was carried into the house, and the
The state did not introduce the AvidoAV of the deceased, nor did it produce any Avitness Avho testified as to the condition of the pistol of the deceased, nor'hoAV many times it had been fired.
The defendant introduced a woman named Sarah Mc-Lemore, Avho claimed to have been at the commissary in plain vieAY of the killing. She testified that Mr. Bullock made the first shot; that he made one shot, and Fletcher made the next one; that Fletcher Avas on his knees when he fired the shot; that she saAV Mr. Bullock pull the pistol out of his pocket, but that she did not know AAdiich hand he used; that Avhen Bullock shot, Fletcher fell to his knees, and came up under the mule’s neck and shot Mr. Bullock, but there Avere more than two shots fired.
The defendant testified in his oavu behalf, and said:
That on or about the 29th of December, 1920, he had moved, and had turned some things over to Mr. Brown, and that Mr: Bullock came doAvn the 'road that morning and met this Avagon, and rode Avith the Avagon until he could turn at Three Bridges going up to the house. That Avhen he got to those bridges he got doAvn on the bridge, and stayed there until they got a pretty good distance, and then rode on to the shop ahead of the defendant. That
The defendant at the close of the evidence requested instructions in the following language:
. “No. 11. We, the jury, find the defendant guilty .of manslaughter” — which was refused by the court.
“No. 12. The Court instructs the jury to acquit the defendant” — Avhich was refused.
The state got one instruction, which read as follows:
“The court instructs the jury for the state that, if you believe from the evidence in this case, beyond a reasonable doubt, that the defendant, Lewis Fletcher, willfully, felon-iously, and of his malice aforethought killed and murdered the deceased, T. C. Bullock, as charged in the indictment in this case, then you will find the defendant guilty as charged, and your verdict will be in either of the following forms, to wit: ‘We, the jury, find the defendant guilty as charged.’ If this is the form of the verdict returned, the court will sentence the defendant to be hanged. Or, second, ‘We, the jury, find the defendant guilty as charged, and fix his punishment at imprisonment in the penitentiary for life.’ If this is the form of the verdict returned, the court will sentence the defendant to imprisonment in the state penitentiary for life. Or, third, if the jury all agree, that the defendant is guilty as charged, but cannot agree as to his punishment, you will not hang the jury for this reason, but should return into court the following verdict: ‘We, the jury, find the defendant guilty as charged, but disagree as to his punishment.’ If this is the form of the verdict returned, the court will sentence the defendant to imprisonment in the state penitentiary for life,”
We have carefully considered the evidence, and, giving the evidence the most favorable construction for the state, the killing would amount to no more than manslaughter. The evidence fails to show any previous difficulty, and it appears clearly that the deceased Avas undertaking to disarm the defendant AAdiich he had no right to do. The shooting, according to the chief state witness, was so close together that it was difficult to distinguish between the shots. Undisputably the deceased shot the pistol at least one time, the bullet going through the neck of the mule upon which the defendant was sitting at the time he was undertaking to take his gun from him. The deceased had ordered the defendant to go to the house, and the defendant had refused to do so. The shot AAdiich killed the deceased evidently paralyzed his arm for the time being, and rendered him incapable of firing further shots. The shots fired at the deceased after he Avas shot in the arm clearly did not strike him.
The other state witness, who seems to have been badly frightened, could not tell Avhetlier the deceased or the defendant fired first. The shots ay ere so close together as. to make it almost simultaneous.
The other eyewitnesses for the defendant and the defendant himself say the deceased fired first. It Avas important in this attitude of the case to know how many shots had been fired from the pistol, and there is no shorving in the record as to why the state did not produce this evidence. Mr. BroAvn, the manager, had died, and his testimony was not available to either party. The AvidoAV of Bullock took the pistol from the dead man, and she was not introduced, nor Avas the pistol introduced nor any evidence to shoAV its condition.
It is apparent from the record that the deceased was attempting to disarm the defendant. This he had no right to do. It was held in Cryer v. State, 71 Miss. 467, 14 South. 261, 42 Am. St. Rep. 473, that, Avhere one kills another, not
Our statutes classify the killing of human beings into murder, justifiable homicide, excusable homicide, and manslaughter, going into various phases in these statutory definitions, and in a general section at the close of this enumeration (section 1244, Code of 1906 [section 974, Hemingway’s Code]) provides every other killing of a human being by the act, procurement or culpable negligence of another, and without authority of law not provided for in this chapter, shall be manslaughter.
It is doubtful if the defendant’s theory of the killing is contradicted by the fact and circumstances in evidence, but, giving the state the benefit of everything that the evidence tends to prove, the killing could not amount to more than manslaughter.
The judgment will therefore be reversed, and the cause remanded for trial on this issue.
Reversed and remanded.
Dissenting Opinion
(dissenting). I am of the opinion that the evidence, my conception of which is someAvhat different from that set out in the majority opinion, will support a verdict for murder, and that consequently the judgment of the court below should be affirmed.