Opinion
No. 41155.
June 8, 1959.
1. Homicide — manslaughter — evidence of defendant's guilt was for jury.
Evidence of defendant's guilt of manslaughter was for the jury.
2. Appeal — criminal law — error in order to work a reversal when conviction is sustained by defendant's own testimony.
When a case is such that the conviction is adequately sustained on the testimony of defendant, any error in order to work a reversal must be one which obviously is obnoxious to the indispensable fundamentals of criminal procedure.
Headnotes as approved by Arrington, J.
APPEAL from the Circuit Court of Forrest County; FRANCIS T. ZACHARY, Judge.
Lawrence D. Arrington, Hattiesburg, for appellant.
I. Under the decision laid down in the Weathersby case, appellant was entitled to a peremptory instruction of not guilty after the State rested and certainly if not then he was entitled to a directed verdict at the time both the State and the defendant rested. Henderson v. State (Miss.), 180 So. 89; Hill v. State, 94 Miss. 391, 49 So. 145; Houston v. State, 117 Miss. 311, 78 So. 182; Kelly v. State (Miss.), 147 So. 487; Weathersby v. State, 165 Miss. 207, 147 So. 181.
G. Garland Lyell, Asst. Atty. Gen., Jackson, for appellee.
I. The rule in the Weathersby case does not apply here. Harrelson v. State, 217 Miss. 887, 65 So.2d 237; Kitchens v. State (Miss.), 49 So.2d 729; McCarty v. State, 230 Miss. 330, 92 So.2d 853; Murphy v. State, 232 Miss. 424, 99 So.2d 595; Spivey v. State, 212 Miss. 648, 55 So.2d 404; Villemarette v. Sovereign Camp, W.O.W. (La.), 178 So. 648; Weathersby v. State, 165 Miss. 207, 147 So. 181.
The appellant, Marvis Bernis Lord, was indicted in the Circuit Court of Forrest County for the murder of Thomas Walton Johnston, tried and convicted of the crime of manslaughter, and sentenced to a term of twenty years in the penitentiary. From that judgment he prosecutes this appeal. (Hn 1) The only assignment of error argued is that the court erred in refusing the requested peremptory instruction under the rule announced in the Weathersby case, 165 Miss. 207, 147 So. 481. We find no merit in this assignment.
(Hn 2) The appellant testified in his own behalf. On his own testimony and the physical facts, the jury would have been justified in finding him guilty as charged. In Sloan v. State, 158 Miss. 138, 130 So. 110, this Court said: "When a case is such that the conviction is adequately sustained on the testimony of the defendant himself, as is this case, any error in order to work a reversal must be one which obviously is obnoxious to the indispensable fundamentals of criminal procedure; and there is no such error in this record."
Affirmed.
McGehee, C.J., and Lee, Kyle and Gillespie, JJ., concur.