Opinion
No. 35624.
October 9, 1944. Suggestion of Error Overruled November 13, 1944.
1. CRIMINAL LAW.
Evidence showing that homicide occurred in Neshoba county sufficiently established venue in such county.
2. HOMICIDE.
Evidence of defendant's guilt of murder was sufficient for jury as against allegation of self-defense.
APPEAL from the circuit court of Neshoba county, HON. PERCY M. LEE, Judge.
W.T. Weir and Dees Stribling, both of Philadelphia, for appellant.
Defendant's explanation of the homicide, not contradicted directly or by fair inference, must be accepted as true.
Bowen v. State, 164 Miss. 225, 144 So. 230.
There is nothing in the evidence to connect the defendant with the killing except her own testimony, which showed that she acted in self-defense after being assaulted with a knife by deceased, and her testimony is not contradicted by the physical facts or inconsistent circumstances but rather corroborated by the witnesses for the state. In such a case the state failed to prove defendant's guilt beyond a reasonable doubt and to a moral certainty and defendant should have been given a peremptory instruction of acquittal.
Houston v. State, 117 Miss. 311, 78 So. 182.
See also Brown v. State, 153 Miss. 737, 121 So. 297; Lefere v. Krohn, 127 Miss. 305, 90 So. 12; Byrd v. State, 154 Miss. 742, 123 So. 867; 2 Thompson on Trials 1507.
Though ordinarily courts will not interfere with finding of jury on question of fact, nevertheless, though court is reluctant to do so, a verdict is reviewable when manifestly it is without the substantial support of any competent evidence or is clearly contrary to overwhelming weight of evidence.
Hogan v. State, 127 Miss. 407, 90 So. 99.
If there was a crime (which we do not admit) it could only have been manslaughter. The murder charge to the jury was erroneous and the jury in finding the appellant guilty of murder was not, as we view it, supported by the evidence.
Patty v. State, 126 Miss. 94, 88 So. 498.
In a criminal case the state must prove venue. A failure to do so is jurisdictional, and may be raised for the first time in the Supreme Court.
Sullivan v. State, 136 Miss. 773, 101 So. 683; Sandifer v. State, 136 Miss. 836, 101 So. 862; Norwood v. State, 129 Miss. 813, 93 So. 354; Dorsey v. State, 141 Miss. 600, 106 So. 827.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
The jury had a right to take all of the testimony and consider it together and accept such parts as they believe to be true and arrive at the verdict by taking part of the evidence of one witness and part of the evidence of other witnesses and couple them together, and if such statements so considered made out guilt in the opinion of the jury, it could reject part of the defendant's testimony inconsistent with the other evidence.
Hall v. State, 128 Miss. 641, 91 So. 397; Witt v. State, 159 Miss. 478, 132 So. 333; Triplett v. State, 159 Miss. 365, 132 So. 448.
The appellant seems to think that because the state had no eyewitnesses at the moment the killing occurred, it was bound to accept what the defendant and her friend said about the matter. This is not true for it is only when there is no incriminating evidence, either by witnesses or incriminating circumstances, and where the defendant's testimony was reasonable within itself, that the state is bound.
In a prosecution for manslaughter, the jury was not required to believe the testimony of defendant, who admitted the killing but claimed that it was done in self-defense, where such testimony was inconsistent with the physical facts and with the testimony of another witness.
Wingo v. State, 91 Miss. 865, 45 So. 862.
Appellant was convicted of the murder of one Inez Martin and sentenced to the state penitentiary for life. She says the state failed to prove the venue of the crime. All the evidence, without contradiction, shows that the homicide occurred just to the rear of a restaurant then being operated in the City of Philadelphia by one Sam White. Two policemen of that city, who inspected and examined the scene shortly after the killing, testified that this scene was in Philadelphia, Neshoba County, Mississippi. That sufficiently established the venue.
Appellant assigns seven other errors, but they all boil down to the one proposition that the lower court should have granted her request for a peremptory instruction on the theory that the only eyewitnesses to the tragedy testified and their testimony is reasonable and uncontradicted and established a case of self-defense, and that the defendant should have been acquitted under the rule laid down in Gaddis v. State (Miss.), 110 So. 691, and other like cases. The trouble with the contention is that it ignores entirely the evidence of the state. That evidence contradicted in several material respects the testimony of the eyewitnesses. The cause of the crime was the rivalry of the participants over one Sam White. Appellant says she and one Ruby Triplett were the only eyewitnesses. They both testified. While their testimony is not entirely in harmony, they gave substantially this version: Appellant and Inez were dancing in Sam's Cafe and Inez purposely "bumped into" appellant; that appellant and Ruby Triplett went onto the front porch to eat a sandwich and Inez came by where they were and "ran up against" appellant; that she had a knife in her hand and made a threat against appellant; that appellant and Ruby Triplett went to the rear of the cafe to drink some whiskey and Inez followed them, whereupon there was a discussion between Inez and appellant as to the relation and possessory rights of each to Sam, and that Inez was in the act of trying to cut appellant when appellant drew her knife and stabbed Inez, from which she expired within a few moments.
As against this version the state introduced evidence to the effect that Inez did not own or possess a knife and had no pockets in her clothing in which to carry one. Eddie May Hudson testified she was in front of the cafe and saw Sam and Inez proceeding to the rear thereof, followed by appellant and Ruby Triplett, appellant remarking as she went, "Yonder goes the sons of bitches, let's catch them"; that while Eddie May did not see what occurred behind the cafe, that appellant shortly came therefrom and said: "I have done killed her," saying nothing of self-defense, or that Inez was trying to cut her; that Eddie May went immediately to Inez and found her stabbed in the heart and bleeding profusely and expiring; that Inez had no knife, or other weapon, and none was on the ground or about the scene. In addition to this, Mr. Lamar Evans, the city marshal, testified that he apprehended appellant after she had fled from the scene and was proceeding along the public highway towards her home in Louisville, Mississippi, and when he informed her he was arresting her for the death of Inez Martin, she said, "I sure cut her," and when he asked her why she did it, she replied, "She was trying to run over me." Mr. Hugh Barrett, a city policeman, testified that the next day he was in the jail, and appellant called to him to know when she could get out, and in reply to his question, "What did you kill her for?" appellant replied "she was messing with her man."
There was also evidence that Ruby Triplett had told others that she did not see Inez with a knife at the time of the tragedy.
It is thus evident that the state's evidence contradicted that of the eyewitnesses in several most vital respects, and that this case, on the evidence, is not within the rule announced in Gaddis v. State, supra.
We find no error in this record and the case must be affirmed.
Affirmed.