Opinion
No. 38508.
November 10, 1952.
1. Appeal — verdicts — great weight of the evidence.
A verdict will not be reversed on appeal if supported by substantial evidence, but will not be allowed to stand if against the great preponderance of the evidence.
2. Deadly weapons — assault and battery with intent.
Other than as to firearms which are defined by statute as deadly weapons, the question as to whether any other instrumentality used in an assault and battery is a deadly weapon is an issue of fact to be determined by the jury.
Headnotes as approved by Hall, J.
APPEAL from the circuit court of Wilkinson County; JAS. A. TORREY, Judge.
Maxwell Bramlette and Joe Upton, for appellant.
I. The court erred in permitting the State through its district attorney to display and brandish before the jury a length of pipe of some twenty-six inches which was never identified as the deadly weapon. Herring v. State, 122 Miss. 647, 84 So. 699; Henley v. State, 202 Miss. 37, 30 So.2d 423.
II. It is respectfully submitted that the lower court committed reversible error in allowing the following instruction by the State: "The court instructs the jury for the State that the burden is upon the State to prove to you from evidence in this case beyond all reasonable doubt that the defendant, W.A. Batteast, did willfully, unlawfully, feloniously and of his malice aforethought strike the said Douglas Smith on any portion of his body with a deadly weapon, to-wit: an iron pipe approximately two feet (2') in length, and that at the time of said blow he, the said W.A. Batteast, had the intent to kill and murder the said Douglas Smith, then if you do believe the State so proved its case to you satisfactorily and beyond all reasonable doubt from sworn evidence in this case, it is your sworn duty to find the defendant guilty as charged."
The statute requires that not only should the intent be present but also that there must be an assault and battery upon another with any deadly weapons or other means or force likely to produce death.
In the case at bar, a thorough reading of the record will reveal that the very most that appellant could have done was to have grazed Smith's shoulder or arm with a pipe or iron. Appellant contends that it will be readily admitted that such grazing of a shoulder or arm would hardly be likely to produce death.
III. The lower court erred in granting the State the following instruction: "The court instructs the jury for the State that if you believe from the evidence in this case beyond all reasonable doubt that the defendant, W.A. Batteast, did on or about the 23rd or 25th of August, 1951, or time of said fight did then and there willfully, unlawfully, feloniously and of his malice aforethought, make an assault with a certain deadly weapon, to-wit: one iron pipe approximately eighteen inches (18") or two feet (2') in length, which he, the said W.A. Batteast, then and there held in his hand and did then and there strike and hit the said Douglas Smith with said iron pipe with the intent of him, the said W.A. Batteast, to willfully, unlawfully, feloniously and of his malice aforethought, to kill and murder the said Douglas Smith then it is your sworn duty to find the defendant guilty as charged."
What is a "deadly weapon" is a question of fact to be determined by the jury. Stafford v. State, 76 Miss. 258, 24 So. 314; State v. Sims, 80 Miss. 381, 31 So. 907. See also Lott v. State, 130 Miss. 119, 93 So. 481.
In the instruction immediately set out above such question is not left to the jury for determination, that is, as to whether the alleged iron pipe was a deadly weapon but, on the contrary, the court positively instructs the jury that the iron pipe approximately two feet in length or one approximately eighteen inches or two feet in length is a deadly weapon.
IV. The lower court erred in overruling appellant's motion for a new trial on the ground that the verdict of the jury was contrary to the law and the great weight of the evidence.
If appellant, under all of the circumstances and evidence in this case, could have been convicted according to law, of anything, the most that appellant could have been convicted of was simple assault and battery. Griffin v. State, 196 Miss. 528, 18 So.2d 437; Daniels v. State, 196 Miss. 328, 17 So.2d 793; Webb v. State, 30 So.2d 894.
In the case at bar the entire record reveals that if Douglas Smith was not a drunken assailant and appellant a sober defendant, then, at the very worst, the record reveals that both were on equal footing insofar as the argument, attack and fight were concerned. In other words, it is not beyond all reasonable doubt that appellant made an unprovoked, unwarranted and unjustifiable attack upon Douglas Smith with a piece of twenty-four inch pipe with the intent of the said appellant to kill and murder the said Douglas Smith. For this reason, therefore, as well as others, the lower court should have granted appellant a new trial and erred in not doing so. Jefferson v. State, 52 So.2d 925.
J.T. Patterson, Assistant Attorney General, for appellee.
Cited and discussed the following:
Bolin v. State, 48 So.2d 581; Lester v. State, 209 Miss. 177, 46 So.2d 109; McLendon v. State, 187 Miss. 247, 191 So. 921; Smith v. State, 49 So.2d 244; Sec. 2011, Code 1942.
Appellant was convicted on a charge of assault and battery with intent to kill and murder one Douglas Smith by striking him with a piece of iron pipe approximately eighteen inches or two feet in length and was sentenced to the maximum penalty of a term of ten years in the state penitentiary. Several errors are assigned, one of which is that the verdict is contrary to the overwhelming weight of the evidence. The point was properly preserved by a motion for a new trial which was overruled by the lower court, and we are of the opinion that it is sufficiently serious to require a reversal of the conviction and a remand of the case for a new trial. (Hn 1) We are mindful of the rule that we will not reverse a jury verdict upon a finding of fact which is supported by substantial evidence, Price v. State, 207 Miss. 111, 41 So.2d 37, but it is equally as well settled by our decisions that a verdict will not be permitted to stand where we think the jury went against the great preponderance of the evidence, Conway v. State, 177 Miss. 461, 171 So. 16.
The appellant and his victim are both Negroes. They met at a country store. Smith was drinking. This is admitted by all the witnesses and some of them said he was drunk. Appellant asked Smith to pay him a debt of about $11.00. An argument ensued which was fortified by a great deal of profanity. Appellant was requested to go out the front of the store, which he did, and Smith was requested to remain in the store and then go out the back door and go home. This he refused to do. In a short time he went out the front of the store and started to attack appellant with a Pepsi-Cola bottle. Appellant obtained a piece of iron pipe from his truck. Bystanders intervened and stopped the argument for the time being. Upon request, appellant gave his piece of pipe to the owner of the store. In five or ten minutes Smith went to the truck of another Negro and obtained an axe and started toward appellant. Appellant obtained another piece of pipe from his truck and as the parties came together he struck Smith a glancing blow upon the shoulder. This blow left no perceptible wound. While appellant and Smith were struggling and after both the axe and the piece of pipe had been dropped a cousin of appellant struck Smith in the head with a piece of iron which inflicted a scalp wound. The parties separated and Smith started back toward the store with the threat that he was going to get a gun and kill them all. Thereupon another cousin of appellant, who was some distance away, shot Smith with a rifle and inflicted a wound from which he died several hours later.
The facts above recited were established by four witnesses for appellant. The State relied upon the testimony of one Susie Jenkins who was admittedly living with Smith and who said that she was his common law wife. She testified that she saw Smith go to a truck and get the axe and that he drew it back and started across the road toward appellant. She did not know what became of the axe. In fact she became engaged in a struggle with appellant's cousin and admitted that she did not see all that happened. She further admitted that she did not know whether Smith had the axe at the time he was struck, and finally said "If he did, I didn't see him." She further said that she did not even hear the shot which inflicted the mortal wound on Smith.
By the great preponderance of the evidence appellant made out a case of self-defense which was not disputed by evidence of such substantial nature as to justify the verdict of the jury. For that reason the judgment of conviction must be reversed and the cause remanded for a new trial.
(Hn 2) Appellant also contends that the instructions for the State assumed as a fact that the piece of pipe in question was a deadly weapon. Under our statute, Sec. 2011, Code of 1942, firearms are defined as deadly weapons. As to any other instrumentality used in the commission of an assault and battery, the question whether it is a deadly weapon is an issue of fact for determination by the jury. Saffold v. State, 76 Miss. 258, 24 So. 314; State v. Sims, 80 Miss. 381, 31 So. 907; Lott v. State, 130 Miss. 119, 93 So. 481. Upon another trial of this case we think the State's instructions should more clearly submit to the jury the question whether the piece of iron pipe in question was a deadly weapon. The instructions do not assume or charge the jury that this pipe was in fact a deadly weapon but they do not properly submit the issue to the jury, and, while we would not reverse the conviction on the sole ground of a deficiency therein, we do feel that at the next trial they should be drawn more carefully.
Reversed and remanded.
Roberds, P.J., and Alexander, Holmes, and Arrington, JJ., concur.