99 So. 2d 595 | Miss. | 1958
The appellant was indicted in the Circuit Court of Jackson County for the murder of his wife. His trial resulted in a jury verdict finding him guilty as charged but disagreeing as to his punishment, and he was accordingly sentenced to life imprisonment in the State penitentiary.
The homicide occurred at the home of the appellant and the deceased on Saturday night at about eleven o’clock on March 2,1957. There was no one present in the home at the time other than the appellant and his wife. The appellant and the deceased lived in one side of a duplex apartment in the City of Pascagoula, Mississippi. Their apartment was of the shotgun type construction, that is to say, that the rooms from front to rear extended back one behind the other. One entering the apartment through the back door entered a small hallway about six feet in length and then passed into an empty or unfurnished room, and from there into the kitchen, and from there into a bedroom, and from there into another bedroom, and from there out on the front porch. On the trial, the appellant admitted killing the deceased, but sought to establish by his proof that he shot her in self defense.
The State’s proof showed substantially the following: The deceased spent the early afternoon of the
No one entered the apartment between the time the shot was heard and the arrival of the police. The police made a search for the appellant but were unable to find him. The next morning, the appellant called the police from the home of his uncle, about six blocks from the appellant’s apartment, and told them that he wanted to give himself up. The police came out and got him and took him to the police station. One of the officers asked him how the thing happened and he said that he only got the gun for the purpose of scaring her and he did not intend to kill her. He later gave a statement to the officers in which he said that he was in the kitchen when his wife entered the apartment, and that she began to advance on him with a knife and threatened to kill him, and he went into the bedroom and got the gun and fired to stop her. He said in his statement that his wife was in the empty room and he was in the kitchen when he shot.
The appellant was the only witness in his own behalf; He testified that when he and his wife returned to the
The appellant contends that he was entitled to a peremptory instruction under the rule announced in the case of Weathersby v. State, 165 Miss. 207, 147 So. 481, to the effect that where the defendant or his witnesses are the only eye witnesses to the homicide, their version must be accepted unless substantially contradicted in material particulars by credible witnesses, physical facts, or facts of common knowledge. He says, therefore, that the trial court erred in refusing his request for a peremptory instruction. We do not think so. The Weathersby case has been almost worn threadbare by the efforts of defendants to come within its rule. It is a rare case that meets all of the requirements of the rule. This, in our opinion, is not one of the rare cases. The many contradictions in the appellant’s own testimony as to material matters, the physical facts and the contradiction of the appellant by other credible witnesses in material particulars clearly establish the fact that the rule announced in the Weathersby case is not applicable. Harrelson v. State, 217 Miss. 887, 65 So. 2d 237; Spivey v. State, 212 Miss. 648, 55 So. 2d 404. We accordingly find no difficulty in reaching the conclusion that the trial court was correct in refusing the appellant’s request for a peremptory instruction. The conflicting state of the evidence clearly created a question of fact for the determination of the jury on the issue of the appellant’s guilt or innocence.
The appellant further complains that the trial court erred in his rulings with respect to the admissibility of evidence bearing upon the occurrence in the
It follows from what has been said that the judgment of the court below should be and it is affirmed.
Affirmed.