90 So. 177 | Miss. | 1921
delivered the opinion of the court.
The appellant Avas indicted for murder and upon trial was convicted of manslaughter and sentenced to a term in the penitentiary, from which judgment he appeals.
It appears that the killing occurred in 1915, and that the appellant left the community and was not arrested until 1919, and the case was continued until April, 1920, and again to October of said year.
It appears that the killing occurred at a crap game at Avhicli a large concourse of negroes were assembled. The deceased, Tom Diamond, seemed to have been in charge of
It is first, contended that the indictment is fatally defective because it charges that the defendant “did then and there willfully, feloniously, and of his malice aforethought kill and murder Tom Diamond, a human being, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state.” It is argued that the Avord “unlawfully” is omitted, and that this vitiates the indictment, inasmuch as the killing of a human being is justified under some circumstances. The argument, Ave think, is Avithout merit, independent of the statute, because the word “felonious” carries Avith it the meaning and idea that killing is unlawful. There may be an
By section 1431, Code of 1906 (section 1187, Hemingway’s Code), it is expressly provided by statute that it shall be sufficient to charge in an indictment for murder that the defendant did feloniously, willfully, and of his malice aforethought, kill and murder the deceased.
In addition to what we have said, the question was not raised in the court below by demurrer, and the statute expressly requires this to be done.
It is next insisted that the verdict is contrary to the weight of the evidence. The evidence shows clearly and plainly that the defendant fired the shot, and that the only difficulty occurring that night was between the deceased and the defendant. It is insisted, however, that the evidence shows that the shot was fired in self-defense, inasmuch as it appears without dispute that the deceased struck the defendant with a lamp chimney. It does not appear that the blow with a lamp chimney would likely result in death or that it was necessarily a deadly weapon. It further appears that the shot was fired after the blow, and not to prevent the blow. The jury were warranted in finding the defendant guilty of manslaughter on the evidence.
It is next insisted that the court should have ordered a mistrial for the reason that the testimony of one Alf Rushing was taken during the absence of appellant from the courtroom, and that the attempt to waive his right to be present was illegal and could not be waived by him. It appears that when Rushing was offered as a witness he was asked as to whether he knew the defendant, and also a question tending to show or elicit the answer that the defendant had fled from the scene of the crime or killing. At this stage the trial judge discovered the absence of the defendant, stopped the proceedings before the question was answered as to flight, and when the defendant came in, he being at the time in the witness room, the judge asked counsel if he desired the jury discharged and a mistrial
We think there is no merit in this contention because section 1495, Code of 1906 (section 1253, Hemingway’s Code), as construed in Thomas v. State, 117 Miss. 532, 78 So. 147, Ann. Cas. 1918E, 371, provides that the presence of the prisoner may be waived. The statute applies at any stage of the trial, and, unless we can say from the record that the appellant is prejudiced by his presence being waived, we will not reverse the case. There Avas nothing that transpired in the absence of the appellant that would warrant a reversal of the case. There is no merit in the other contentions.
Affirmed.