83 So. 2d 86 | Miss. | 1955
The appellant was convicted in the Circuit Court of Lauderdale County on an indictment charging him with assault and battery with a.deadly weapon, towit, a shotgun, upon Helen Irby by shooting and wounding her, with intent to kill and murder her. He was sentenced to a term of seven years in the State penitentiary and from the judgment of conviction he prosecutes this appeal.
The facts as disclosed by the State’s proof are brief, and we state them as follows: The appellant operated an establishment in a building at or near Marion in Lauderdale County. It appears to have been a combination cafe and dance hall wherein beer was served to the public. On a Saturday or Sunday night, on the 20th or 21st of November, 1954, a fight occurred in the place in which the prosecuting witness, Helen Irby, and one J. W. Martin were the principal participants. The fight developed into a general brawl, in which someone hurled a piano stool and other particles of furniture were hurled and a table was turned over and general disorder resulted. The appellant was not a participant in the fight. When the atmosphere cleared, the appellant ordered the participants, among them, Helen Irby and Lucy Tillman, a sister-in-law of the appellant, to leave the building and not come hack. As Helen Irby and Lucy Tillman were leaving, one of them remarked that they were leaving hut that they would come back. In about an hour and a half or two hours, which was sometime before mid
The testimony for the defense corroborated the state’s witnesses in all material respects, except the appellant testified that Helen told him as she came to the counter that she was going to get him, and that he thought she had an automatic in her pocket and that she was going to kill him, and appellant’s daughter testified that Helen “looked mean” at the appellant as she stood at the counter. The appellant admitted that at the time he fired Helen was not exhibiting any weapon and was mak
The appellant pleaded self defense, and the court submitted to the jury under proper instructions the issue as to whether or not at the time the appellant fired he had reasonable grounds to apprehend that he was in real or apparent danger of losing his life or suffering great bodily harm at the hands of Helen Irby. The jury resolved this issue against the appellant, and we think rightly so.
The appellant has made a number of assignments of error but we shall address ourselves to only those assignments which, in our opinion, merit discussion.
The appellant complains that the trial court erred in sustaining the State’s objection to testimony offered by the appellant to show the general reputation of the prosecuting witness, Helen Irby, for peace or violence was bad. Such character of evidence is generally admissible only in cases of circumstantial evidence, to be considered by the jury in aid of their inquiry into the origin and progress of the conflict in which the accused was engaged, and in cases where the proof shows that the deceased or prosecuting witness has committed some overt act or made some hostile demonstration or threat indicating a present purpose to do the accused some great bodily harm, and the evidence is offered as bearing upon the reasonableness of the accused’s claimed belief that an attack was about to be made upon him. Chase v. State, 46 Miss. 683; Spivey v. State, 58 Miss. 858. This is not a case of circumstantial evidence, and further, the proof is wholly devoid of any overt act or hostile demonstration committed by Helen Irby toward the appellant, or of any threat by Helen Irby toward the appellant except the veiled statement testified to by the appellant that she was going to get him. The appellant himself, however,
It is also contended by the appellant that the trial court erred in refusing to permit him to show previous fights between the prosecuting witness and others in the appellant’s place of business. It was not claimed that appellant was involved in any of such fights. Such evidence was of no probative value in determining the guilt or innocence of the appellant on the charge preferred against him, and was wholly immaterial and irrelevant to the issues involved, and we think the trial court properly excluded it.
It is further contended by the appellant that the trial court erred in excluding testimony on cross-examination of the State’s witness Bill Alford, with reference to whether the appellant sought to arrange for medical aid for the prosecuting witness after the shooting and before leaving the scene of the difficulty. It is not contended, and could not be successfully maintained, that the claimed offer to obtain medical aid was a part of the res gestae, but it is argued that the evidence was offered to rebut any claim that appellant fled the scene. It was not contended by the State, and is not contended on this appeal, that appellant fled the scene. In fact, it appears in the proof introduced without objection that when he left the scene he told his wife he was going home and to tell the officers if they came that they could find him there, and they did thereafter, in fact, find him at his home. There was, therefore, no issue as to flight by the accused, and the proffered testimony was immaterial. Further, however, it is clear that the testimony was
The appellant also contends that the verdict of the jury is contrary to the overwhelming weight of the evidence. The principal contention of the appellant under this assignment is that the proof is insufficient to show an intent to kill on the part of the appellant. In the case of Jeff v. State, 39 Miss. 593, this Court held that proof of the unlawful use of a deadly weapon by the accused in a case of assault and battery is prima facie evidence of an intent to kill. Again in the case of Howard v. State, 212 Miss. 722, 55 So. 2d 436, this Court held that the use of a deadly weapon by the accused in a case of assault and battery is prima facie evidence of an intent to kill, and that the issue of intent is ordinarily for the jury.. The proof in the case at bar shows that Helen Irby was fired upon by a shotgun. According to the proof, the appellant fired upon the prosecuting witness at a time when she was making no demonstration to do him any bodily harm. He said on cross-examination in one place that he didn’t know why he did it, and in another place he said he shot because he was scared. The appellant argues that since he hit the prosecuting witness in the stomach it does not indicate an intention to kill, since her body from the top of the counter up was exposed and the accused could have shot her in the head. It might be said here, however, that there are few more vulnerable spots in the human body than the stomach. We think that the appellant’s contention under this assignment is without merit. The jury were amply warranted under the proof in finding that the defendant was guilty beyond a reasonable doubt. In fact, the proof in this record to support that finding is overwhelming.
It is further seriously contended by the appellant that the jury was exposed to prejudicial influence during its deliberation and that, therefore, the verdict of the jury should be set aside. This assignment is found
We have carefully considered the other assignments of error not herein specifically discussed and we are of the opinion that the same present no reversible error. The judgment of the court below is accordingly affirmed.
Affirmed.