114 So. 2d 676 | Miss. | 1959
Judson Smith was indicted, tried, and convicted of the murder of Earl Pope. The evidence justified the jury in finding the facts as next stated.
Robb’s Lounge is a “night spot” located near Green-ville. On the night in question, a number of persons were engaged in gambling in a room adjoining the main club room. Among those so engaged were appellant, Judson “Painter Man” Smith, Johnny “Diddy” Lewis, the dealer or cut man, the deceased, Earl “Yonderfoot” Pope, “Rango” Jack Sock, “Bennie the Red” Grigsby, and “Jack of Hearts” Taylor. There were two gambling tables, a large and a small one. Appellant was at the small table between the deceased and Lewis. They were playing a card game known as “Skin.” An argument developed between appellant and Lewis about the “cut” the house was to take out of a dollar bet. Lewis let appellant play without paying a cut, but appellant lost his dollar bet. Deceased asked appellant why he wanted to do him (Lewis) like that, that Lewis had done nothing to appellant, and that appellant was mistreating Lewis, who was old. Appellant, who had just told Lewis that he would “knock hell out of him,” then told deceased, “That goes for you, too, Yonderfoot.” Someone then said that appellant had a pistol. Deceased stood up and faced appellant; they were close together.
Deceased did not have any weapon before or at the time he was shot, and he was not trying to harm appellant. After the killing", appellant left in his automobile and sought the police, to whom he surrendered and gave his gun.
Appellant assigns as error the refusal of the trial court to either grant appellant a peremptory instruction or sustain his motion for a new trial on the ground the verdict was contrary to the overwhelming-weight of the evidence. There is no merit in these contentions. The jury had every right to believe appellant was guilty of a senseless, wanton murder. He sought to establish self-defense, but the evidence in that regard does not warrant discussion.
Appellant assigns as error the granting to the State of an instruction in the exact language appearing as Section 3146, Alexander’s Mississippi Jury Instructions, and which instruction was approved by this Court in the case of Eaton v. State, 163 Miss. 130, 140 So. 729. This instruction is in common use in murder cases.
Appellant also assigns as error the refusal of the lower court to give him requested instruction No. 3 for the defendant. This instruction attempts, among other things, to define premeditation and malice. It is un
We find no reversible error and the judgment of conviction is affirmed.
Affirmed.
