Walker v. State, 86 So. 337

86 So. 337 | Miss. | 1920

Sykes, J.,

delivered the opinion of the court.

Woodson Walker Avas indicted for murder and convicted of manslaughter in the circuit court of Tallahatchie county, and sentenced to serve a term in the penitentiary, from Avhicli judgment this appeal is prosecuted.

The testimony relating to the killing is conflicting. The " state’s witnesses testified: That appellant about noon came . to the house in Avhich lived the deceased, Dobbs Spates, and three others, That he Avas on friendly terms Avith all of these people. That the appellant stated he had had a difficulty with another negro that morning, and wanted to borroAv a pistol from Mose Blanchard. That appellant Avent to the trunk of Mose Blanchard, and got the pistol, and put it in his shirt. That he Avas in conversation Avith Mose Blanchard and his wife, telling them Avhat he would do to the negro with Avhom he had had the quarrel when he saAV him, when one of the Avitnesses said to him that he Avould do nothing but run, as he did that morning. During this conversation they were all laughing and talking. About that time the deceased, Dobbs Spates, came into the room. When he did so, the appellant stated, “I will show you how to kill a (using a vile epithet) of this kind.” That when he said that he aimed the pistol at and shot the deceased. That the deceased had said nothing 'whatever to the appellant. That the deceased and appellant were on friendly terms. After the shooting the appellant immediately left the house.

The testimony for the appellant was: That all of these people were his friends, and the pistol was lent to him at his request by the wife of Mose Blanchard. That, when he was ready to leave, Mose, and the deceased tried tó take the pistol away from him, and that in the scuffle the pistol was accidentally discharged, killing the deceased.

There is not one scintilla of testimony .in the record that there was any fuss or difficulty at the house previous to the killing.- On the contrary, the testimony shows that these people were laughing and talking, and were all on friendly terms. No provocation whatever was proven, upon which a jury could find that the killing was done in the heat of passion. Under the testimony of the state, the appellant was guilty of murder. Under that of the appellant, it was an accidental killing, and he was guilty of nothing. The defendant was twice tried. On the first trial a manslaughter instruction was given, and he was convicted of manslaughter. This verdict was set aside, and a new trial granted. The verdict of the jury, which found the appellant guilty of manslaughter, operated as an acquittal of the charge of murder. Hurt v. State 25 Miss 378, 50 Am. Dec. 225.

Since' there were no elements of manslaughter shown by the testimony, it was error to have given a manslaughter instruction. Virgil v. State, 63 Miss. 317; Rester v. State, 110 Miss. 689, 70 So. 881; Richardson v. State, 85 So. 186.

The judgment of the lower court is reversed, and the appellant is discharged.

Reversed, and appellant discharged.