83 So. 84 | Miss. | 1919
delivered the opinion of the court.
The appellant, Allen Spight, was tried and convicted of the murder of Ira Short, and sentenced to death, from which judgment he appeals.
The evidence shows the crime was most diabolical and was participated in by another man, George Garrett, It appears that the appellant and Garrett had a controversy with the deceased Short regarding damages on account of Short’s cow eating corn belonging to appellant and Garrett. The two had called upon the deceased at his home, and while there Garrett abused the deceased. That afternoon Garrett was at the home of appellant, when the deceased came there and left with the two men, appellant and Garrett, the latter armed with a shotgun, and the other with an ax upon his shoulder, and deceased unarmed.
According to the state’s testimony, the appellant had an ax upon his shoulder and walked along with the deceased and Garrett following behind armed with the shotgun; that after they had proceeded some distance appellant
The appellant was tried and convicted before the 'trial and conviction of Garrett. At the appellant’s trial-the state offered to introduce Garrett as a witness. An attorney representing Garrett objected to Garrett testifying in the case on the ground that it would incriminate Garrett. Thereupon the court informed Garrett of his legal privilege to refuse to testify if he so desired, and his right to exercise such privilege. At first it seems that Garrett was inclined "to refuse to testify against his partner in the crime, but finally decided to do so with full, knowledge of his right to decline.
The appellant, through his able counsel here, earnestly urges that the court below erred, and assigns three grounds for reversal: First, that the court erred in allowing Garrett to testify in the case when it appeared that-he was reluctant to do so and at first declined to do so until the court had led him into testifying by numerous questions; second, that the instructions granted the state submitting the question of conspiracy to the jury is wrong, because there is no. evidence in the case upon which to base conspiracy; third, that the evidence in the case is insufficient to convict the appellant because the conviction rests solely upon the testimony of Garrett, whose testimony is manifestly false.-
- The second contention of appellant that the conspiracy instruction was error is not maintainable, for the reason that the proof is abundant in the record from which the jury, were justified in finding that there was an expressed or implied understanding and common design between the appellant and Garrett to kill the deceased. The state, in establishing conspiracy, is never required to prove in express terms an agreement between the parties to do the unlawful act, but- it is sufficient when the evidence reveals, from all the facts and circumstances, together with the acts of the parties, a common design or understood purpose between the par-’ ties to commit the crime. We deem it unnecessary to
As to. the third point urged by the appellant;- in which it is claimed that the testimony offered by the state is manifestly false, we are unable to agree with counsel. This court does not pass upon the truth or falsity of testimony in any case where the testimony offered is such that a jury is reasonably warranted in believing it and acting upon it. We will not to any extent usurp-the province of'the jury, who are the triers of fact, and who, with all the witnesses testifying in their presence, must necessarily be the best judges, and, under the law, are the final judges, of the truth or falsity of the testimony and the weight to be given thereto.
We have carefully notéd the facts as testified to by Garrett, and it may be that some of the statements of Garrett are unreasonable and false. But it is not within our province to pass upon the facts; nor can we say that the verdict-of the jury is manifestly wrong, where, as in this ease, the testimony offered by the state is clear and positive, and may reasonably be believed by the jury.
We, note that the appellant is a young man, a minister of the gospel, and bears a splendid reputation as a peaceful citizen in the community in which he lives. These facts, especially with reference to character, are valuable to the accused, but they were submitted to and
The judgment of the lower court is affirmed, and Friday the 2d day of January, 1920, is set for the day of the execution of the judgment.
Affirmed.