*1 861 Magee v. State. 11, Suggestion
(In Banc. 1946. of Error continued Nov. for further Suggestion 9, 1946. of Error consideration Dec. sustained Jan. 27, 1947.) (2d) 767. 36158.] So. [27 No. *2 Ney appellant. Raymond, Williams,
M. for Stringer, Jackson, L. & Leon Shelton H. O. appellant. *3 Arrington, Attorney L. R. O. Barnett, General, Rice,
Greek Attorney and Ross R. General, Jack- Assistant appellee. son, *4 Stringer,
Leon L. Shelton and H. C. both of Jackson, Ney Raymond, Williams, and M. sug- gestion of error.
866 Arrington, Attorney by I». Eice,
Greek E. O. General, Attorney Barnett, E. of Jack- Assistant Eoss General, and appellee, suggestion son, for of error. Stringer, by orally C.
Argued H. appellee. Barnett, for E. Eoss opinion Roberds, J., delivered Court.
Magee *6 was convicted the murder of Conn, Ernest appeals. death, sentenced to and he appeal Magee A former was before this v. Court, State, (2d) 22 642, 198 Miss. So. 245.
A for motion continuance because of the absence of by Frankie a was witness, denied the Robinson, lower Appellant says court. that was error. Frankie testified first The at trial. record discloses that her evidence was merely is cumulative, it not shown that could be she produced subsequent aat and on the trial, for a motion produced new no affidavit of trial this witness was show- ing testimony any what her would nor be, was there showing impracticable produce that it was such affi- davit. Under these circumstances the was Court correct overruling in the motion. Samuels State, v. 153Miss. 381, Hodgkin 920; 120 v. So. 172 State, Miss. 160 297, 562; So. Lamar v. 63 State, Miss. 265; Henderson v. State, 187
Miss.
Appellant introduced as character one witness Magee’s general reputa- L. Kitchen, "W. who testified that peace good. place for or tion violence was In another he ‘‘ ’’ good. I So far know was as said, On cross-examina- tion Kitchen" was “State asked, whether or not it isn’t Sandy Magee, boy sitting right true that this had here, general reputation reputation community out there, in the ’ ’ getting shooting scrapes. Objec- lived for where he into question this was tion to overruled. The witness answer- shooting being scrape.” him Appel- “I in a heard ed, says court this action the lant reversible error. competent question Magee The and answer were here. If general reputation engaging shooting in had scrapes, witness, so known that fact would bear upon accuracy only not witness’s conclusion reputation peace good, for his or violence was but credibility upon stating. the witness’s so in also 868 opinion [198
In 22 in the case Miss. 642, former So. (2d) permissable 246], stated this Court that: “It testing good cross-examination, when faith credi character, bility of if he has not heard to ash witness, reports community particular rumors or acts in imputed to the defendant which are incon violence being given witness with then sistent reputation regarding good of the accused as to the * * * inquired particular about, trait of character specific charges of he had heard of ask or not whether community against misconduct made defendant ** ” go although into details of be error to it would specific question and answer under incidents. The rule. v. State, within the above Smith discussion came 802, 112 Miss. 793. So. Magee which relies
The contention main *7 jury case, the is the evidence the that, under reversal in any permitted guilty crime, of him to find should not be manslaughter. greater He crime than so, if not but said he did killed but he Conn, that he and admitted shot undertaking the detail to Without so self-defense. say enough on the that the evidence, is supports amply murder; part of the verdict of the State part Magee a con- sustained would have of on the that viction of acquittal. manslaughter The ob- anor State question submitting jury the to the instruction tained an manslaughter. ex- instructions Defendant’s or of murder manslaughter, and murder plained between the distinction acquittal. and Under the instructions an and asked jury returned a verdict have could the evidence appellant manslaughter guilty. found or It not murder, being evidence to guilty sufficient and there murder, be overruled. must contention verdict, that sustain Friday, December judgment and affirmed, bewill The date of execution. for the is set 20,1946, Affirmed.
Sydney participate J., Smith, C. did not in this decision. concurring specially opinion. J., Griffith, delivered a opinion by Judge The of the correct Court Eoberds is in the statement that, “Under instructions and the jury evidence the have could returned a verdict of mur- ’’ manslaughter opinion guilty, or der, or and the main not correct, is in the conclusion since there further, that is enough evidence to sustain the conviction murder, and against inasmuch as it cannot be said the verdict is that weight overwhelming within evidence, it is not province appellate our anas to interfere. court my against preponder- But to mind the verdict is eye-witnesses ance the evidence. There were four only the actual and homicide, one of the four witnesses sustains the verdict as and his rendered, version contains outstanding undisputed two infirmities. It is that three by appellant, may accept shots fired were and we theory State’s that it was the third shot caused that undisputed ranged upward, death. It that this shot striking no bone in its course, this would force the probabilities conclusion that were that the shot was position point fired from below the where bullet struck deceased, which would corroborate the testi- mony appellant other three witnesses standing him, with the would knees, his deceased over positions disprove thus said what Stokes as parties, displace having any his as would version probative great force. *8 appellant’s that brother
Stoke’s also had struggling hold of deceased and was with him, when by of and all three the shots were fired while according ap- being shot, the first to made Stokes, when pellant away appel- ten from was feet the deceased and thereupon appellant that and brother, in, lant’s firing closed approached the next he two shots as the other two In was Stoke’s that in the words, men. other version appellant firing semi-darkness deceased when at the positions appellant’s and while the of the deceased and. equal brother made it of strike the brother the shots would likelihood that story than the a which rather deceased, requires the of exercise considerable fortitude —too some much for me—to believe. discrepancies are other but ease,
There in the State’s enough that, what has if a been said is disclose even to squeezed through, verdict of be not murder can it is a penalty, case for the of the death and so state infliction to ought privilege appellate to a court int- be in the justice, cannot erest ultimate even if the Court itself directly intervene.
L. Smith, Sr., J., A. above. concurs in the suggestion Curiam, Per error. and has been earnest consideration case under
This by us On 28,1946. reconsideration since October Novem.- judgment but affirmed, and sentence was ber 11,1946, part majority mem- with reluctance on the expressly that voiced' of whom Court, bers of two Upon opinion. specially concurring a reluctance suggestion coming a of error and reconsideration in of the have was found to reluctance it, of the case that grown something reluctance, two more than expressed who themselves other than two members, having opinion, specially concurring have come to in the charge allowed should be whether serious doubt some manslaughter. higher We than a offense to stand for called judgment thereupon of affirmance aside the set having suggestion reply error, this reply, rejoinder appellant’s together with come in, again have come to gone case, and over the we have set be aside should the verdict final conclusion awarded. new trial
871 Miss. here, Mangee "When the v. 198 State, case was first 22 that the death 642, us (2d) supposed So. it was 245, by sentence was errone by carried verdict because the the ous and inflammatory evidence dealt with the Court on appeal. that It did to with that not occur us that wholly evidence eliminated, any selected properly jury, bias, authorizing would a verdict again without return the us that infliction death All of penalty. concur the present penalty, death record does not justify some of us that death feeling execution of a sentence under the record reproach in this case would be a justice. no
This case of an assassination, or a deliberate and premeditated urge com- murder, to or a homicide mitted in furtherance of another or crime, anything of the like. A considerable negroes gath- number of were ered night in together after colored department restaurant were operated and some of them by deceased drunk or among' whom was a drinking, brother of appellant. This and brother had a pistol calibre, small in with appellant, order that no harm might his brother do the weapon, took from had no Appellant him. purpose, and none, manifested to himself nor to pistol use engage in pro- he did any altercation, and nothing voke any altercation. He had taken the pistol simply put and it in pocket. his under a mistaken deceased, But jumped over with impression, large the counter armed calibred pistol, and intruded himself what going into was on, with the a general result that melee broke immediately out, with ordinary confusion; more than which progressed in a continuous and unbroken course of until with- events, in an extremely time short the deceased, appellant, and others found themselves outside on or the restaurant just beyond semi-darkness. sidewalk,
The version of the appellant, supported by other wit- was that at the last as nesses, point appellant, mentioned down his consequence was melee, knees, the deceased immediately was almost over standing trying* larg’e pistol him, to use the above but mentioned, according undisputed proof, which, had become jammed, although this unknown *10 position appellant that from his his on knees fired three pistol shots from the brother, which he had from his taken already as stated. The conviction, death, sentence of with upon contrary only rests the version of Stokes, wit- ness for the State who testified to that and his version, story appellant standing* was that when he fired the three shots, first about ten feet from deceased, appellant approach, second when had amade and nearer standing*, the third and fatal when shot still point against body had come to a almost deceased. reply suggestion
The State, in to the its error, its in undisputed physical effort to meet the the bullet fact that causing ranged upward, the fatal wound has been com- pelled conjecture, satisfactorily to resort to nor met has point specially concurring the second mentioned in the opinion, discrepancies which in besides there are other testimony emphasized rejoinder appellant’s Stokes’ in majority which it seems us has not and been, adequately present all be, cannot record, met final conclusion, which leads us to and after the the stated prolonged that a death sen- mentioned, reconsideration tence should not be allowed to stand on the doubtful and undependable unsupported of this witness, against verdict should be set aside as Stokes, that the weight will be evidence, and it ordered. We so pursue the ease detail, in further since do not facts may be retried. suggestion sustained, of error is verdict
The judgment and the case remanded. reversed
Reversed and remanded. participate
Sydney Smith, J., in this decision. Ct did not specially concurring opinion, Griffith, delivered a J., suggestion of error. day opinion per
IWhile concur in the de- curiam this my judgment jury livered, isit a that when in homicide case returns verdict with the death sentence and that grossly unjustifiable sentence is so under the facts as is the case here, the Court all the evi- should consider this as necessary product pre- dence that the verdict was the judice passion or bias or or some other inadmissible mo- contrary process tive or due consideration, to the clauses require imparti- of state and federal which constitutions, ality judicial in tribunals, and that be an- this should adjudication applicable nounced as a rule of to this and to all homicide future. in If this were done eases nothing this case, further need be said. *11 opinion dissenting sugges-
Roberds, J., delivered a tion error. naturally balancing my judgment against
I am averse to judgment my the collective honesty compels brethren, but intellectual say,
me to record, after review this guilt I that think or innocence of the herein defendant question jury. a was for the testimony Magee guilty
The of the State showed be of murder; that made the defendant case self- mainly defense. The relied 'State any way one Stokes. It shown he is not biased being in favor of the State. In race as fact, same presumably kindly he defendant, him, felt towards ’ nothing appearing contrary. In addition Stokes testimony, physical supporting there were facts con- unnecessary tention However, of the State. I deem it testimony. judgment me to undertake to The detail judgment majority of a of its members of the Court.