Opinion
No. 35076.
November 30, 1942.
1. HOMICIDE.
In homicide prosecution, where according to defense testimony of defendant, who was only eyewitness, shooting was accidental and his version was reasonable and he was not substantially contradicted in material particulars by any other witness nor by physical facts or facts of common knowledge, defendant was entitled to a directed verdict of acquittal.
2. CRIMINAL LAW.
Where on record defendant was entitled to directed verdict of acquittal but no request had been made for such verdict in trial court, Supreme Court could not discharge defendant and conviction for manslaughter was reversed and case remanded.
APPEAL from the circuit court of Warren county, HON. R.B. ANDERSON, Judge.
Harry K. Murray, of Vicksburg, for appellant.
It is submitted that the court below committed reversible error when it allowed, over the objection of the defendant, the testimony of Lillian Knox, a sister of the deceased, as to the trouble in Chicago. It had no connection with the case. We, of course, understand that other offenses can be shown for the purpose of identification, also in rape cases, but this has never been applicable in homicide cases in this state.
Floyd v. State, 166 Miss. 15, 148 So. 226; Mississippi Digest, Vol. 5, p. 117, key number 369 (1). Greek L. Rice, Attorney-General, by R.O. Arrington, Assistant Attorney-General, for appellee.
Appellant's first assignment of error is that the court erred in permitting Lillian Knox, a sister of deceased, to testify that while the appellant and the deceased were visiting in Chicago, about three weeks prior to the killing, the appellant assaulted deceased in her home and that as a result of the said assault the deceased was blue and black.
The state's case depended upon circumstantial evidence and, in view of the defense made that it was accidental, this evidence was clearly admissible to show motive, malice, or the mental attitude of appellant toward deceased.
Sauer v. State, 166 Miss. 507, 144 So. 225; Cartee v. State, 162 Miss. 263, 139 So. 618; McCormick v. State, 159 Miss. 610, 132 So. 757; Lee v. State, 160 Miss. 618, 134 So. 185; Daniels v. State (Miss.), 136 So. 725; Bryant v. State (Miss.), 184 So. 70; Underhill's Criminal Evidence, 4th Ed., p. 1094, Sec. 559; Sec. 560, p. 1103, as to previous quarrels and difficulties.
Appellant was indicted for murder, and convicted and sentenced for manslaughter. He was the only eyewitness. According to his testimony the shooting was accidental. His version is reasonable and he is not substantially contradicted in material particulars by any other witness nor by physical facts or facts of common knowledge. On this record he was entitled to a directed verdict of acquittal (Weathersby v. State, 165 Miss. 207, 147 So. 481; Thornton v. State, 178 Miss. 304, 170 So. 541), but we cannot discharge him because no request for such verdict was made in the trial court.
In case of retrial evidence of a prior difficulty between the parties, under the circumstances shown in this record, would be incompetent. Collier v. State, 106 Miss. 613, 64 So. 373; Floyd v. State, 166 Miss. 15, 148 So. 226.
Reversed and remanded.