Leavell v. State, No. 22438

No. 22438 | Miss. | Mar 15, 1922

Lead Opinion

Cook, J.,

delivered the opinion of the court.

Geox-ge Leavell was convicted of murder in the circuí ¡ court of Hinds county, and sentenced to suffer the death penalty, and from this judgment and sentence, he prosecuted this appeal.

The testimony offered by the state was substantially as follows: The wife of the deceased testified that, on the day before the shooting, it was reported to her and the deceased that appellant had been caught in the woods with a girl avho was then living with them and who had been reared in their home; that deceased chastised this girl for their conduct, but -he did not see appellant that day; that on the following morning the witness was at a spring on the side of a hill where two girls were wash-ing clothes; that while she Avas at this spring she saw the deceased sitting on his horse in his field in a valley below, about four hundred yards aAvay, talking to a negro who was plowing for him; that she heard the report of a gun shot in the woods near by, and shbrtly thereafter-the appellant came out of the woods with a shotgun and walked rapidly toAvards the deceased; that they met near a path along which appellant was traveling; that deceased Avas sitting on his horse Avith one hand on the horn of the saddle and the other on the hip of the horse; that some conversation took place betAveen them but she could not hear what was said; that a feAv moments later she saw appellant shake his finger in deceased’s face and step back about two steps and raise his gun to-shoot; that deceased threw up both hands and appellant immediately fired one shot and deceased fell to the ground; that appellant fired two more shots at or over deceased Avhile the wounded man was attempting to crawl away from him. The tAvo girls who were at the spring, and a man Avho was working on a fence about tAvo hundred yards away from the scene of the shooting, testified to substantially the same facts.

The man who was plowing within a few steps of the scene of the shooting testified that deceased was sitting-on his horse talking -to him when appellant came out of the woods and approached them; that when they met some words passed between them and then appellant* shook his finger in deceased’s face and stepped back about Iavo steps and raised his gun to shoot; that the deceased had been sitting on his horse with one hand on the saddle horn and the other on the hip of the horse; that when api ellant raised bis gun into a shooting position, the deceased th cow up both hands; that appellant then shot the deceased just over the heart on the left, side of the breast; that deceased fell from his horse and, as he lay on the ground, appellant shot at him twice, the last time missing his mark; that deceased had no weapon, and when he was shot the first time he was sitting on his horse with both bauds held above his head. Other witnesses testified that they saw the appellant that morning with a Winchester pmup gun, and one witness, a merchant, testified that appellant came to his store a short while before the shooting; that he was carrying a Winchester shotgun; that lie brought with him a chicken which he sold to the merchant; that, Avith the money derived from the sale of the chicken, appellant purchased six shells loaded Avith No. 6 shot. One witness testified that early that morning he went to deceased’s blacksmith shop for the purpose of having some plow points sharpened; that while deceased was working on these ploAV points, appellant came to the shop; that he had a Winchester shotgun and a chicken; that appellant was a tenant on lands belonging to deceased; that deceased told him he Avanted him to go to work on the grass in his crop; that appellant replied that he Avas not going to work that day; that appellant then walked off a few steps and turned and said to deceased, ’“I am going to kill you before the sun goes down.”

Appellant testified that, on the day before the killing, on account of his relations with this girl, the deceased armed himself with a Winchester and went to his home and into the field looking for him; that he was very much frightened and avoided deceased; that next morning appellant’s wife asked him to carry a chicken to the store to sell for the purpose of getting money to make certain small purchases for her; that in going to the store he traveled a circuitous route to avoid going by deceased’s home; that in returning he also went about a mile out of his regular course to avoid meeting him; that he met the deceased unexpectedly. He further testified as folloAvs;

“No sooner than lie seen me lie cut his conversation off and tapped liis horse and went up the road where I was at, and he says, ‘George Leaveli, another time I hear anything of this girl and you I am going to kill you both. What were you doing in the bushes?’ and I says, ‘I wasn’t there?’ and he says, ‘You are a damn lie,’ and I says, ‘No, I Avasn’t,’ and he says, ‘You are á God damn lie,’ and broke at me, and T shot him twice; I don’t know tvhere I hit him at.”

On cross-examination appellant testified in explanation of his statement that deceased broke at him, that he meant that he reached for his pocket. He further testified that he shot solely in self-defense; that he did not intend to kill deceased, but that he tried to shoot his arm so that he could not draAV a gun from his pocket.

Upon this testimony the defendant requested an instruction submitting to the jury the question of manslaughter. This instruction Avas refused by the court, and the only assignment of error presented for our consideration is based upon the action of the court in refusing this instruction.

The majority of the court is of the opinion that, under the evidence in this record, it Avas not reversible error to refuse the manslaughter instruction. ,

Under the testimony for the state, if believed, the defendant is clearly guilty of murder, while under the defendant’s OAvn testimony, if accepted as true, the shooting Avas done solely in self-defense. The evidence offered by the defendant emphatically negatives any idea that the shooting Avas done in the heat of passion, but it sIioavs a cool deliberation exercised in the defense of his person:. Upon the whole evidence Ave think the right result has been reached, and, upon the particular facts in this record, Ave do not think the refusal of the manslaughter instruction constituted reversible error, and the judgment of the lower court is therefore affirmed.

Affirmed, and August 18, 1922, is set as the date of execution .

Affirmed.

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Dissenting Opinion

Anderson, J.

(dissenting). We have in this case, according to appellant’s own testimony, which is to be considered in passing on the propriety of a manslaughter instruction, a sudden meeting between appellant and deceased, followed immediately by a violent altercation between them, during which deceased cursed and abused appellant to such an extent as that in my opinion it was a question for the jury whether as a result thereof appellant’s anger and passion were so aroused as to dethrone his reason and cause him to slay deceased. If that be true, appellant was guilty of manslaughter, not murder. Under the evidence this was a question for the jury and not the court. It was therefore error in my judgment for the trial court to refuse the manslaughter instruction requested by appellant.

Sykes, J., concurs in these views.