Opinion
No. 41765.
February 13, 1961.
1. Homicide — evidence warranted murder conviction.
Headnote as revised by Kyle, J.
APPEAL from the Circuit Court of Grenada County; HENRY L. RODGERS, Judge.
Marshall Perry, Grenada, for appellant.
I. There was no credible evidence upon which the jury could have based a verdict of guilty, and defendant's requested peremptory instruction should have been granted. Fortenberry v. State, 216 Miss. 243, 62 So.2d 325; Webster v. State, 194 Miss. 381, 12 So.2d 533.
II. In a criminal case where the evidence fails to prove that the defendant committed a crime, a motion for a new trial is unnecessary, especially where a motion to discharge the defendant or a peremptory instruction is requested and refused. Cogsdell v. State, 183 Miss. 826, 185 So. 206; Johnson v. State, 234 Miss. 441, 107 So.2d 91; Mullen v. State, 202 Miss. 795, 32 So.2d 874.
G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. The evidence being ample to sustain the verdict of the jury and the sufficiency thereof not having been raised below by motion for new trial, the verdict of the jury and the judgment of the trial court should not be here disturbed. Clark v. State, 206 Miss. 701, 40 So.2d 591; Faust v. State, 204 Miss. 297, 37 So.2d 315; Johnson v. State, 233 Miss. 441, 107 So.2d 91; McDougal v. State, 199 Miss. 39, 23 So.2d 920; Robinson v. State, 234 Miss. 149, 105 So.2d 766.
The appellant Tommie Lee Gary, who is also referred to in the record as "Smokey", was indicted, tried and convicted of the murder of one Addie Lee Riley and was sentenced to life imprisonment in the state penitentiary. From the judgment of conviction and the sentence imposed he has prosecuted this appeal.
The only point assigned and argued by the appellant's attorney as ground for reversal of the judgment of the lower court is that there was no credible evidence upon which the jury could have based a verdict of guilty, and that the court erred in refusing to grant the appellant's request for a directed verdict of not guilty.
After a careful review of the evidence, we think there was no error in the court's refusal to grant the peremptory instruction requested by the appellant.
S.L. Davis, the sheriff, testified that he received a call about 6:15 in the morning during the month of February, asking him to come to the residence of Addie Lee Riley who lived on Levee Street, in the City of Grenada. When he arrived at the house he saw the front door had a piece of paneling knocked out of it. The back door was open; the gas heater was turned on, but there was no blaze; the gauge was wide open, and gas was escaping. Addie Lee Riley's body was lying across the bed with a coat hanger around her neck, partially embedded in the flesh. It had been twisted, maybe a twist an a half, around her neck. A photograph of the body, as the sheriff found it, appears in the record. The sheriff stated that Addie Lee appears to have been dead about 8 hours. There was no autopsy performed. Two of the city policemen arrested the appellant about 6:30 that morning. Dr. Linwood Lee Rayford testified that he examined the body at the request of the sheriff about 6:30 in the morning. The doctor was of the opinion that Addie Lee had been dead 7 or 8 hours. Rigor mortis had set in. The cause of death was strangulation.
Several witnesses testified concerning the movements of the appellant during the evening and the early part of the night immediately preceding the discovery of Addie's body in her home on Levee Street, and threats which the appellant had made to inflict bodily harm upon her as a result of scandalous statements alleged to have been made by her concerning the appellant.
Anna Sykes testified that she saw Tommie Lee Gary at Erma D. Jones' house around 6:30 or 7:00 o'clock, the evening before Addie Lee Riley was found dead in her home on Levee Street; that she and some other colored people had gone to Duck Hill early in the evening, and after they came back from Duck Hill she saw Tommie Lee at Erma's house; that Ed Davis and Henry Lindsey were there; and that all of them were drinking "scocat", or moonshine whiskey. Anna stated that while they were sitting around drinking and talking she heard Tommie Lee say that Addie Lee Riley needed her tongue cut out for lying. That remark was prompted by Ed Davis teasing Tommie Lee about something that Addie Lee Riley had told on him. Tommie Lee got mad, and Erma made all of them leave her house because she thought Tommie Lee was going to have a fight with Ed Davis. Tommie Lee left the house with Henry Lindsey. Erma D. Jones' testimony was substantially the same as that of Anna Sykes. Erma stated that Ed Davis was teasing Tommie Lee about certain vulgar charges made against him by Addie Lee Riley; that Tommie began to curse, and said that Addie needed her tongue cut out. Erma then told them all to get out of her house. That was about 8:30.
Annie Lee Taylor, who liver next door to Addie Lee Riley, testified that she was standing in the front door of her house about 9:30 the night the homicide occurred, and she saw a car approaching Addie's house. When it came under the street light she recognized Tommie Lee Gary as one of the occupants of the car. About 10 or 15 minutes later she heard somebody walking between her house and Addie's house, and she saw two men walk up on Addie's porch. She recognized them as Tommie Lee and Henry Lindsey. The two men stood there a few minutes, and one of them spoke to a woman coming up into the yard. Henry left Tommie Lee standing on Addie's porch and came over to Annie Lee's house. Annie Lee stated that she saw Tommie Lee on Addie's porch; she saw him break the door in; and after he got in the house she heard Addie scream about three times, and she heard something fall in the house. She did not see Tommie Lee leave Addie's house.
Henry Lindsey testified that he was at Erma D. Jones' house during the early part of the night with Tommie Lee Gary, Ed Davis and Anna Sykes. He stated that he had "a little scrap iron, moonshine whiskey" to drink. He stated that he and Tommie Lee left Erma's house about 9:00 o'clock, and that they drove around and went up Levee Street, and then turned again and parked the car in front of Wheat Clay's house. They got out of the car and walked through the alley toward Addie Riley's house, and Tommie Lee said to Henry, "I want to go over there and talk to that woman * * * I want you to go to the door and knock." Henry stated that Tommie Lee wanted to talk to Addie about some ugly statements which she had made about him. Henry stated that when he and Tommie Lee got to Addie's house, he knocked on Addie's door, and Addie answered and told him that she would see him tomorrow; that he then walked over to Annie Lee Taylor's house; that Tommie Lee walked upon Addie's porch, pushed the door open and went in; and after that he and Annie Lee heard Addie scream three times. He did not see Tommie Lee come out of Addie's house. Henry was asked whether Tommie Lee made any statement as to what he was going to do to Addie. His answer was, "Nothing, no more than he was going to whip hell out of her that evening."
The appellant, testifying in his own behalf, stated that he and Henry Lindsey went to Addie Riley's house, that he knocked on Addie's door and heard someone there holler, "What's all this about," and that he turned and ran. The voice that he heard sounded like a man's voice. He ran across the hill and jumped in his car and drove away. The appellant stated that he did not kill Addie Riley. He was asked why he wanted to go to Addie's house that night. His answer was, "Because she had said a lot of things about me I disliked, and I wanted to know did she say it."
The jury found the appellant guilty as charged, but disagreed as to the punishment. (Hn 1) We think there was ample evidence to support the verdict of guilty. The judgment of the lower court is therefore affirmed.
Affirmed.
McGehee, C.J., and Ethridge, Gillespie and McElroy, JJ., concur.