Opinion
No. 33595.
May 8, 1939. Suggestion of Error Overruled May 22, 1939.
1. HOMICIDE.
In homicide case, the jury may take all the evidence together and draw deductions therefrom.
2. CRIMINAL LAW.
In a homicide case, the jury may reject the testimony of eyewitnesses where contradicted in material respects.
3. CRIMINAL LAW.
It is the function of the jury to pass upon the credibility of the evidence, and, where they find the verdict, the evidence justifying such verdict must be accepted as having been found worthy of belief.
4. HOMICIDE.
Evidence held to sustain conviction of manslaughter.
APPEAL from the circuit court of Newton county; HON. D.M. ANDERSON, Judge.
W.I. Munn, of Newton, for appellant.
If this is not a case of justified or justifiable homicide, we are unable to conceive of such a case. It certainly was the duty of the circuit court judge to have given a peremptory instruction in this case and we want this court to bear in mind that the two witnesses, Jessie Cunningham and Floyd Mosley were summoned as state witnesses, and according to their testimony and as shown by the stenographer's notes they were the only two witnesses to the homicide, and they told the district attorney how the killing occurred and yet the state did not use them as state witnesses and it became necessary for the appellant to use them on the trial of the case, and every witness in this case that testified, and there were five who testified for the state and two who testified for the appellant, and every one of them was summoned as state witnesses, and after a careful reading of the testimony one is convinced beyond doubt and beyond every reasonable doubt from the weight of the testimony taken as a whole that the appellant was justified in taking the life of the deceased, and for that reason this appellant should and ought to be acquitted because there is nothing in this record on which to base a conviction of either manslaughter or murder, and we respectfully submit this case ought to be reversed and the appellant discharged.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
There appears to be a substantial conflict as to how this killing came about. In such case this conflict was for the jury and not for the court and we think the court properly allowed the case to go to the jury. The jury, under the evidence, could find that this was an unnecessary killing, and, since the jury has the right to accept the testimony of some of the witnesses in part and reject other parts and accept part of the evidence for the state and draw reasonable inferences therefrom and from all the evidence in the case, this court will not reverse a conviction upon the ground assigned here, unless the verdict of the jury cannot be held upon any view of the facts in evidence.
Woodward v. State, 178 So. 469; Triplett v. State, 159 Miss. 365, 132 So. 448.
Argued orally by W.I. Munn, for appellant, and W.D. Conn, Jr., for the State.
The appellant, Tom Scott, was indicted in the circuit court of Newton county for the murder of Richard McSwain, was placed on trial, convicted of manslaughter, and sentenced to serve a term of seven years in the state penitentiary; from which judgment he appeals here.
The only error complained of is that the testimony was insufficient to sustain a judgment of manslaughter. The evidence presents a case which is close on the facts; but taking all the evidence together, and drawing deductions therefrom, as the jury may do, we think it was sufficient to warrant the jury in finding the defendant guilty of manslaughter.
Prior to the killing the appellant had gone into the place occupied by McSwain, who was operating a small store in one of the rooms of his residence, and made demands upon McSwain for some money which the latter owed him. McSwain told him that he didn't have the money; and according to one of the witnesses Scott stated to him that unless he got his money within five minutes he had better not put his feet on the ground, or words to that effect. Another witness testified to the same remark, except that it was for fifteen instead of five minutes. The appellant came out of the door, and McSwain soon followed, as some of the witnesses testified, with an ice pick in his hand, and that the wife of McSwain, who was in the street, or nearby, called to Scott that McSwain had an ice pick and was after him, and for him to run.
Two other witnesses who claimed to have been eyewitnesses, testified that on such warning or exclamation by McSwain's wife, Scott started to run, and fell in a ditch on the side of the street, that McSwain jumped on him, and that Scott shot him while down. Another witness, who was in the house when the shot was fired, running to the front, saw Scott get up from McSwain as he lay, shot through the breast, the bullet coming out after going through the body.
The marshal of the town of Newton was sent for, and he testified, in regard to the shooting of McSwain, that the deceased had no weapons except two small pocket knives, which had not been opened. The marshal, J.M. Wells, also testified that an ice pick was found in the street six or eight feet from where the shooting occurred.
McSwain's wife was not called, but there was testimony showing that Tom Scott and she were "sweethearting," this testimony being introduced to show a motive. The witnesses who were in the store when the conversation occurred stated that there was no reference to this matter.
Taking the evidence for the state as true, and rejecting the testimony of the eyewitnesses, because contradicted in material respects — as the jury may do in case of conflict — we think the killing was unjustified, because the proof on behalf of the state tends to show, and if true does show, that the deceased was not attacking Scott with a weapon, and that Scott's life, in fact, was not endangered at the time of the shooting. That the evidence as to which one was on top at the time the shot was fired was also contradictory. It is, of course, the function of the jury to pass upon the credibility of the evidence; and where they find a verdict, the evidence justifying such verdict must be accepted as having been found worthy of belief by the jury.
The judgment will, therefore be affirmed.
Affirmed.