Opinion
March 14, 1949.
1. Criminal law — homicide — right of threatened accused to carry weapon, and to use it on reasonable appearance of danger of losing her own life.
When the accused had been threatened by the deceased with death on more than one occasion, the deceased having on said occasions exhibited a deadly weapon carried by her in her handbag, the trouble being over the associations by the deceased with the husband of the accused, the accused on going in search of her husband on the occasion in question, had a right to carry her pistol along for self protection, although expecting to find the deceased with her husband, and had the right to use the weapon against the deceased in self defense.
2. Criminal law — self defense against person who had threatened life of accused.
When the accused had been threatened with death by the deceased on more than one occasion, the threats being accompanied by the exhibition of a pistol carried by the deceased in her hand bag, the trouble being over the associations by the deceased with the husband of the accused, and when on the occasion in question the accused found the deceased with the husband and thereupon the deceased advanced upon accused attempting at the same time to open her hand bag, the accused had the right to anticipate that the deceased was about to carry out her previous threats and she did not have to wait until the deceased had her weapon in her hand or in sight or that accused had said anything, before the accused, acting reasonably on the appearances thus presented and in protection of her own life, shot the deceased.
3. Criminal procedure — undisputed evidence on behalf of accused — effect of.
Where the defendant or the defendant's witnesses are the only eye witnesses to the homicide, their version, if reasonable, must be accepted as true unless substantially contradicted in material particulars by creditable witness or witnesses for the State, or by the physical facts or by the facts of common knowledge, and in a case where there is no such dispute or contradiction the accused is entitled to a directed verdict.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Alcorn County; RAYMOND T. JARVIS, J.
Stovall Smith, for appellant.
It was not essential that Mandy show that Lee Dora had a weapon in her hand, or in sight, when she shot, nor that Lee Dora said anything at the time, evidencing her desire to harm her. Mandy had the right to anticipate her acts, and to act upon them. Scott v. State, 34 So.2d 718, and cases cited therein.
The evidence shows without dispute that in January prior to the difficulty in March, Mandy met Lee Dora on a street in Corinth, when she threatened her in this manner: (quoting from Mandy's testimony, page 77 of the record).
"A. She went in her pocketbook and when she came out she told me, said, `You know to get off these streets because I have got some hot lead in my pocketbook', so I squared up and went on off. Me and Ruby Riddle was together.
Q. Did you see what she had in her pocketbook?
A. She had a gun in there, yes, sir, I knowed she was toting it, yes, sir."
When Mandy and Lee Dora met on the night in question, Mandy said to Lee Dora, "Lee Dora, you been out with my husband again". When this was said, Lee Dora went for her pocketbook, fumbling and jerking at it, as if to open. This fact is undisputed. Mandy had a right to act on such appearances, it was not necessary for her to wait until Lee Dora had taken her gun from her pocketbook nor did she have to wait for Lee Dora to tell her what she was intending to do. And it is well for Mandy that she did not wait, for if she had, it would have been too late. The proof is undisputed that when Lee Dora fell, her pocketbook was open, and the contents were scattered, including a pistol fully loaded.
This court held on this question in Scott v. State, 34 So.2d 718, that: "The law authorizes action on reasonable appearances, Scott v. State, 56 Miss. 287; and the danger may be either real or apparent, Blalack v. State, 79 Miss. 517, 31 So. 105; Ingram v. State, 62 Miss. 142; Godwin v. State, 73 Miss. 873, 19 So. 712."
"In Bang v. State, 60 Miss. 571, we laid down the rule that, in order to establish that a homicide was committed in self-defense, it is not essential that the defendant show that deceased actually had a deadly weapon. It is sufficient in that respect if he show that the conduct of deceased was such as to induce a reasonable belief that he had one. We there said: `It would be a hard doctrine to hold that the assailant must have in his hands a deadly weapon to justify the assailed from acting for his defense, in this day of improved weapons, which may be drawn and used with fatal effect in a few seconds; and it would be unmerciful to deny to the accused the benefit of appearances as presented to him and honestly acted on'."
The State, to a large extent, relies on the fact that Mandy did not see a gun or other weapon in Lee Dora's hands before she shot, and that Lee Dora said nothing to her. The law did not require Mandy to wait until Lee Dora had her gun out, or until she stated her intentions. It gave her the right to act on appearances, provided it was reasonable to believe that Lee Dora intended to kill her or do her great bodily harm.
There were no eye witnesses to the actual shooting, hence Mandy's version of the occurrence must be accepted as true, unless substantially contradicted in material particulars by physical facts, or facts of common knowledge. Mandy's version showing self defense, entitles her to a directed verdict, unless it is contradicted by the physical facts, or by facts of common knowledge. Weatherby v. State, 165 Miss. 207, 147 So. 481; Thorton v. State, 178 Miss. 304, 170 So. 541, Webster v. State, 194 Miss. 381, 12 So.2d 533.
George H. Ethridge, Assistant Attorney General, for appellee.
It seems to be contended that the conviction of manslaughter was unauthorized in this case but I submit that a manslaughter verdict was permissible if the jury accepted certain phases of the evidence under Sections 2220, 2222, 2226, and 2232, Code of 1942, and cases cited thereunder. It is provided in Section 2232, "Every other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law, not provided for in this chapter, shall be manslaughter." The various statutes authorizing convictions of manslaughter constitute about ten sections in the code showing the liberal policy of the state in dealing with human frailty and human weakness. At the common law no person was authorized to take the life of another for interfering with domestic relations except that where the husband or wife and another were caught flagrante delicto in which case the killing was not justified but was reduced from murder to manslaughter. It has never been the law of this country or of England that a man or woman could kill another for merely riding around with another person of the opposite sex and that the most favorable view to take of this case is that the appellant was in high temper when she did not find her husband at home and armed herself with a deadly weapon which she carried concealed in violation of the law and shot to death another person who at the time of the shooting was not committing any crime recognized by the law.
Applied to the facts of this case the verdict of the jury was merciful and they could well have found the higher degree of crime against the appellant.
The appellant Mandy Lomax, a negro woman, was indicted for the alleged murder of another negro woman, Lee Dora Lewellyn, and was convicted of manslaughter.
On this appeal there are five grounds of alleged error assigned, but in view of the conclusion that we have reached it is only necessary that we discuss one of them, and that is whether or not the rule announced in the case of Weathersby v. State, 165 Miss. 207, 147 So. 481, and in other cases decided both prior and subsequent thereto, is applicable in the instant case. That rule is that "Where the defendant or the defendant's witnesses are the only eye witnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a creditable witness or witnesses for the State, or by the physical facts or by the facts of common knowledge."
It appears without dispute that about two months prior to the homicide the said Lee Dora Lewellyn had said to the defendant Mandy Lomax in a threatening manner, "You know to get off these streets, because I have got some hot lead in my pocketbook," and that she opened it and displayed her pistol therein, that these two women were having trouble in regard to the defendant's husband; that on another occasion, more than a year prior to the killing, the said Lee Dora had threatened to beat up the defendant Mandy with a broom handle and was prevented from doing so by the husband of the latter; that these instances had been reported to the officers by the defendant, according to her undisputed testimony; and that on the night of the killing Mandy and her friend, Ruby Riddle, who occupied one of the apartments in the duplex where Mandy and her husband resided, had returned from church at near 10 o'clock on Sunday evening to find their husbands, Jacob Riddle and Wilson Lomax, gone from home. These two women went out in search for their husbands and while standing at a street intersection they saw a car stop and Lee Dora and one Magaline Edings get out of the car, where Lee Dora was riding on the back seat with Wilson Lomax and Magaline on the front seat with Jacob Riddle. Thereupon the two men drove away in the car and their two companions walked down the street en route to their homes and approached Ruby and Mandy at the street intersection. That thereupon Ruby said something to Magaline about being out with her husband and Mandy said to Lee Dora, "You have been out with my husband again." Whereupon Lee Dora began advancing toward Mandy, after removing her purse or handbag from under her arm and was "fumbling" with it as if to unzip or otherwise open it. That Mandy had in the meantime backed off from her for a distance of approximately fifteen feet and then fired her pistol at Lee Dora, missing her with the first shot, and that thereupon Lee Dora "whirled" and kept trying to open her purse as Mandy fired two or three more shots, one of them striking Lee Dora in the back and killing her.
The defendant Mandy Lomax was corroborated by Ruby Riddle to the extent that Lee Dora was advancing toward Mandy while the latter was backing away, but both Ruby and Magaline fled from the scene before the shooting started. Magaline did not testify.
Within about ten minutes after the shooting occurred the defendant Mandy Lomax had returned to her home, telephoned to the officers from the house of a neighbor and requested that they come to her home. Upon the arrival of the officers she informed them as to what she had done, told them about Lee Dora trying to take her husband away from her, but did not go into the details as to what the deceased was doing at the time she was shot. She accompanied the officers to the scene of the killing, and they there found the open purse or handbag of the deceased near her arm as she lay on the ground, and also found a fully loaded pistol within about one foot of where the purse or handbag lay. There is no contention that this pistol did not belong to the deceased.
There was some contradiction between what the defendant told the officers about the number of shots fired, etc., but we are of the opinion that these discrepancies do not amount to a substantial contradiction in material particulars.
The defendant's version of what occurred appears to be entirely reasonable and fully supported by the physical facts, by the previous occurrence when Lee Dora had displayed her pistol in her purse, and it is not contradicted by matters of common knowledge.
(Hn 1) And while the defendant did not testify that when she went in search for her husband she expected to find Lee Dora with him, this fact is a reasonable inference, and in view of what had occurred between the two women on the previous occasions she had a right to carry her pistol along in her own purse or handbag for self protection, and it is also a reasonable inference and is highly probable that if she had not acted promptly in her reasonably apparent self defense she would have lost her own life on the occasion in question.
(Hn 2) It was not essential under the facts of this case that Mandy show that Lee Dora had a weapon in her hand, or in sight, when she shot, nor that Lee Dora said anything at the time, evidencing her desire to harm her. Mandy had the right to anticipate her acts, and to act upon what then reasonably appeared to be necessary for the protection of her life. Scott v. State, Miss., 34 So.2d 718, and cases cited therein.
(Hn 3) We are of the opinion that the rule hereinbefore mentioned as announced in the Weathersby case is clearly applicable under the facts of the case at bar, and that, therefore, there should have been a directed verdict in favor of the defendant as requested.
Reversed and judgment here for the appellant.