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Nester v. State

Supreme Court of Mississippi
Nov 8, 1965
179 So. 2d 565 (Miss. 1965)

Opinion

No. 43687.

November 8, 1965.

1. Murder — circumstantial evidence — refusal to give two-theory instruction, prejudicial error.

In murder prosecution, wherein theory of State was that three indictees either killed decedent in fight or rendered him unconscious or helpless and placed him between rails of track, and defendant's theory was that intoxicated decedent had wandered upon track where he was killed by train, evidence required giving of two-theory instruction and it was prejudicial error for Court to refuse to do so.

Headnote as approved by Jones, J.

APPEAL from the Circuit Court of Leflore County; ARTHUR B. CLARK, JR., J.

Maurice R. Black, Carrollton, for appellant.

I. The Court erred in overruling the motion of the appellant, at the conclusion of the State's testimony, that the Court exclude the evidence for the State and direct a verdict for the defendant (appellant). Algheri v. State 25 Miss. 584, 1 Mor. St. Cas. 658; Byrd v. Hazlehurst, 101 Miss. 57, 57 So. 360; Caleb v. State, 39 Miss. 721, 2 Mor. St. Cas. 1490; Hogan v. State, 127 Miss. 407, 90 So. 99; Jackson v. State, 118 Miss. 602, 79 So. 809; John v. State, 24 Miss. 569, 1 Mor. St. Cas. 608; King v. State, 251 Miss. 161, 168 So.2d 637; Sorrels v. State, 130 Miss. 300, 94 So. 209; Taylor v. State, 108 Miss. 18, 66 So. 321; Warren v. State (Ga.), 100 S.E. 283; Webb v. State, 73 Miss. 456, 19 So. 238; 3 Encyclopedia Brittanica, 566, 743; Gray, Attorney's Textbook of Medicine, Sec. 1 p. 53.

II. The Court erred in refusing the peremptory instruction requested by appellant. Fortenberry v. State, 216 Miss. 243, 62 So.2d 325; Jones v. State, 165 Miss. 810, 146 So. 138; Minor v. State, 234 Miss. 140, 106 So.2d 41; Rodgers v. State, 222 Miss. 23, 75 So.2d 42; Walton v. State, 219 Miss. 72, 68 So.2d 87; Williamson v. State, 229 Miss. 305, 90 So.2d 657; Wolverton v. State, 248 Miss. 860, 161 So.2d 645.

III. The Court erred in overruling the motion of appellant for a new trial. Escobedo v. Illinois, 84 S.Ct. 1758; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792; Malloy v. Hogan, 84 S.Ct. 1489; Massiah v. United States, 84 S.Ct. 1199; Pearson v. State, 248 Miss. 353, 158 So.2d 710; White v. Maryland, 373 U.S. 59, 10 L.Ed.2d 193, 83 S.Ct. 1050.

IV. The Court erred in refusing the two-theory instruction requested by appellant. Burns v. State, 228 Miss. 254, 87 So.2d 681; La Fontaine v. State, 223 Miss. 562, 78 So.2d 600.

V. The Court erred in sustaining the objection of the State to a question to James Hankins, a qualified expert mortician, as to the effect of a sudden stroke by a body, such as a train, on the blood flow of a body. The Court did not even permit the witness to state whether he knew the answer to the question. Alexander v. State, 37 Ala. App. 533, 71 So.2d 520; Williams v. State, 255 Ala. 229, 51 So.2d 250.

VI. The Court erred in overruling objections to the testimony of Mrs. Mae Moore and Mrs. Ruth Hyde because same was offered as rebuttal, when it was actually testimony in chief, and the permitting of such testimony gave undue emphasis thereto. People v. Hillhouse, 80 Mich. 580, 45 N.W. 484; People v. Castree, 311 Ill. 392, 143 N.E. 112, 32 A.L.R. 357; Reddick v. State, 72 Miss. 1008, 16 So. 490; Ridgley v. State, 75 Md. 510, 23 A. 1099; Roney v. State, 167 Miss. 827, 150 So. 774; Russell v. State, 185 Miss. 464, 189 So. 90; Abbott's Trial Brief, Criminal Cause (2d ed.), 305, 309.

R. Hugo Newcomb, Sr., Asst. Atty. Gen., Jackson, for appellee.

I. Conflicts and contradictions were questions for determination of the jury, and, under our system, the jury were the sole judges of the weight of the evidence and the credibility of the witnesses. Alexander v. State, 251 Miss. 847; Bond v. State, 249 Miss. 352, 162 So.2d 510; Clark v. State, 181 Miss. 455, 180 So. 602; Cobb v. State, 235 Miss. 57, 108 So.2d 719; Evans v. State, 159 Miss. 561, 132 So. 563; Gangloff v. State, 242 Miss. 168, 134 So.2d 481; Henderson v. State, 187 Miss. 166, 192 So. 495; Hill v. State, 199 Miss. 254, 24 So.2d 737; Hunter v. State, 183 Miss. 779, 184 So. 835; Ivey v. State, 206 Miss. 734, 40 So.2d 609; Matthews v. State, 243 Miss. 568, 139 So.2d 386; Park v. State, 240 Miss. 774, 128 So.2d 870; Ross v. State (Miss.), 174 So. 560; Scott v. State, 185 Miss. 454, 188 So. 546; Willette v. State, 224 Miss. 829, 80 So.2d 836; Witt v. State, 159 Miss. 478, 132 So. 338; Woodward v. State, 180 Miss. 571, 177 So. 531; 24 C.J.S., Criminal Law, Sec. 1190.

II. Defendant requested but was refused the two-theory instruction. Coleman v. State, 208 Miss. 612, 45 So.2d 240; Simmons v. State, 208 Miss. 523, 44 So.2d 857.

III. The term "reasonable doubt" and "moral certainty", as used in instructions, are interchangeable and synonymous. Walton v. State, 212 Miss. 270, 54 So.2d 391.


Appellant appeals to this Court from a conviction of manslaughter and a sentence to fifteen years in the State penitentiary by the Circuit Court of Leflore County. We find error in the proceedings as hereinafter stated and the case is reversed and remanded for another trial.

On or about October 1, 1961, the body of Cecil Floyd, Jr., was found between the rails of the Illinois Central main line about two or three miles south of Greenwood. During the May 1964 term of circuit court, the appellant, Scott Elliott and Phillip Bennett were indicted for the murder of the said Floyd, but appellant was granted a severance. The facts disclosed were briefly these. The decedent was found on the said track. Highway 49 runs generally in a northerly and southerly direction, and insofar as we can tell from the record, is substantially parallel to the railroad track and anywhere from 200 to 400 yards east of said line. On the west side of Highway 49 is a place operated by Scott Elliott and known as "Scotty's." The appellant was a bouncer there; Phillip Bennett was a customer on the night before the body of the deceased was found; about midnight some trouble developed between the decedent and the three indictees. According to the State's evidence, they took him behind the building and proceeded to beat him; it is not evident whether they used their fists, or their feet, or clubs. No one saw the defendant or his co-indictees place the decedent upon the tracks, and for the jury to so find it had to infer same from the facts shown.

There was no evidence introduced showing blood at the place of the fight. As best we can tell from the record, the space between "Scotty's" and the railroad was covered with weeds; there was no evidence of a car having traveled through this space, nor any signs or tracks of persons walking over same. It had rained early that morning or late that night; the track had ballast of slag, and where the body was found, although it was mangled, there was very little blood. No proof was tendered as to an inspection of the train. One of decedent's shoes was found south of the body.

Appellant offered a witness whose credibility was not attacked, who was not cross-examined, and was not contradicted (unless by the facts hereinbefore stated). He testified that he knew Cecil Floyd, Jr., and about one o'clock A.M., he saw him walking away from "Scotty's" along Highway 49 about 100 yards north thereof.

(Hn 1) The theory of the State was that the three indictees either killed the decedent in the fight or that he was rendered unconscious or helpless and carried and placed between the rails of the said track. A train went north at 2:30 A.M., and another about six or seven A.M. The appellant's theory was that the decedent, being intoxicated, had left "Scotty's" and somehow wandered upon the track where he was killed by a train.

One of the assignments of error is that the court erroneously refused to the defendant what we know as the two-theory instruction given in circumstantial cases. The court had given the State an instruction that the charge of murder might be proven by circumstances, but refused the defendant the two-theory instruction. The evidence in this case was so circumstantial as to require the giving of the two-theory instruction and it was prejudicial error for the court to refuse it. Alexander, Mississippi Jury Instructions § 172 (1953).

We deem it unnecessary now to discuss the other questions presented.

Reversed and remanded. Ethridge, P.J., and Gillespie, Brady and Smith, JJ., concur.


Summaries of

Nester v. State

Supreme Court of Mississippi
Nov 8, 1965
179 So. 2d 565 (Miss. 1965)
Case details for

Nester v. State

Case Details

Full title:NESTER v. STATE

Court:Supreme Court of Mississippi

Date published: Nov 8, 1965

Citations

179 So. 2d 565 (Miss. 1965)
179 So. 2d 565

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