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  • Meridian, for appellant. I. It was reversible error to grant the State the following instruction: "The Court instructs the jury for the State that, if you believe beyond a reasonable doubt from the evidence in this case that the defendant, Willie J. Davis, in Scott County, Mississippi, on February 11, 1961, did wilfully, feloniously and of his malice aforethought, kill and murder Roosevelt Jones, a human being, then you should find the defendant guilty and return one of the following verdicts: `(1) We, the jury, find the defendant guilty as charged in the indictment.' Upon a return of this verdict, the Court will sentence the defendant to suffer the death penalty. "(2) We, the jury, find the defendant guilty as charged in the indictment and fix his punishment at imprisonment in the penitentiary for life.' Upon a return of this verdict, the Court will so sentence the defendant. `(3) We, the jury, find the defendant guilty as charged in the indictment and certify that we are unable to agree upon his punishment.' Upon a return of this verdict, the Court will sentence the defendant to the penitentiary for life." Bester v. State, 212 Miss. 641, 55 So.2d 379; Boykin v. State, 86 Miss. 481, 38 So. 725; Fulton v. State, 209 Miss. 565, 47 So.2d 883; Gamblin v. State (Miss.), 29 So. 764; Harris v. State, 175 Miss. 1, 166 So. 392; Hudson v. State, 185 Miss. 677, 188 So. 561; Lee v. State, 138 Miss. 474, 103 So. 233; Lofton v. State, 79 Miss. 723, 31 So. 420; McMaster v. State (Miss.), 29 So. 522; Middleton v. State, 80 Miss. 393, 31 So. 809; Perkins v. State, 229 Miss. 299, 90 So.2d 650; Ross v. State, 185 Miss. 438, 188 So. 295; Scott v. State (Miss.), 42 So. 184; Stricklin v. State (Miss.), 13 So. 898; Thigpen v. State, 219 Miss. 517, 69 So.2d 241; Thompson v. State, 190 Miss. 639, 200 So. 715; Wilburn v. State, 73 Miss. 245, 18 So. 576; Woods v. State, 183 Miss. 135, 184 So. 311. II. The verdict of the jury is contrary to the overwhelming weight of the evidence and the verdict of the jury is not supported by substantial evidence. Ashford v. State (Miss.), 6 So.2d 471; Batteast v. State, 215 Miss. 337, 60 So.2d 814; Brown v. State, 219 Miss. 749, 70 So.2d 23; Dickens v. State, 208 Miss. 69, 43 So.2d 366; Heflin v. State (Miss.), 178 So. 594; Jolly v. State (Miss.), 174 So. 244; Justice v. State, 170 Miss. 96, 154 So. 265; Ladner v. State (Miss.), 9 So.2d 878; Miller v. State, 198 Miss. 271, 22 So.2d 164; Nichols v. State, 174 Miss. 271, 164 So. 20; Shimniok v. State, 197 Miss. 179, 19 So.2d 760; Sones v. State (Miss.), 155 So. 188; Stricklin v. State, supra; Tubb v. State, 219 Miss. 741, 64 So.2d 911. III. The trial court committed reversible error in overruling appellant's motion for a new trial and in refusing to allow further instructions to be requested in writing by appellant and the State if desired. Browning v. State, 33 Miss. 47, 1 Mor. St. Cas. 991; Coker v. State, 200 Miss. 535, 27 So.2d 898; Horn v. State, 216 Miss. 439, 62 So.2d 560; Ware v. State, 218 Miss. 173, 65 So.2d 236. IV. The trial court committed reversible error in overruling defendant's objection to testimony objected to by the defendant and in sustaining the exclusion of testimony offered by appellant. Hawkins v. State, 224 Miss. 309, 80 So.2d 1; Pope v. State, 242 Miss. 362, 135 So.2d 818; Smothers v. City of Jackson, 92 Miss. 327, 45 So. 982; State v. Sisk, 209 Miss. 174, 46 So.2d 191; Tubb v. State, supra; Wallace v. State, 170 Miss. 454, 155 So. 197; 22A C.J.S., Sec. 682 p. 729. G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee. I. It was not error to grant the State the instruction complained of. Baggett v. State, 219 Miss. 583, 69 So.2d 389; Holmes v. State, 201 Miss. 509, 29 So.2d 312; Lewis v. State (Miss.), 118 So. 708; Ross v. State, 234 Miss. 309, 106 So.2d 256. II. The verdict of the jury is not contrary to the weight of the evidence. Cobb v. State, 235 Miss. 57, 108 So.2d 719; Scott v. State, 185 Miss. 454, 188 So. 546. III. The trial court did not err with respect to further instructions to the jury. Abney v. State, 123 Miss. 546, 86 So. 341; Ellerbee v. State, 79 Miss. 10, 30 So. 57; Gangloff v. State, 232 Miss. 395, 99 So.2d 461; Sec. 1530, Code 1942. IV. As to the testimony with respect to the residence of appellant. Allen v. State, 230 Miss. 740, 93 So.2d 844; Gillespie v. State, 15 Miss. 380; Peacock v. State (Miss.), 42 So.2d 232; State v. Goering, 200 Miss. 585, 28 So.2d 248.
Judges
  • McGEHEE, C.J.
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Attorney(S)
  • Meridian, for appellant. I. It was reversible error to grant the State the following instruction: "The Court instructs the jury for the State that, if you believe beyond a reasonable doubt from the evidence in this case that the defendant, Willie J. Davis, in Scott County, Mississippi, on February 11, 1961, did wilfully, feloniously and of his malice aforethought, kill and murder Roosevelt Jones, a human being, then you should find the defendant guilty and return one of the following verdicts: `(1) We, the jury, find the defendant guilty as charged in the indictment.' Upon a return of this verdict, the Court will sentence the defendant to suffer the death penalty. "(2) We, the jury, find the defendant guilty as charged in the indictment and fix his punishment at imprisonment in the penitentiary for life.' Upon a return of this verdict, the Court will so sentence the defendant. `(3) We, the jury, find the defendant guilty as charged in the indictment and certify that we are unable to agree upon his punishment.' Upon a return of this verdict, the Court will sentence the defendant to the penitentiary for life." Bester v. State, 212 Miss. 641, 55 So.2d 379; Boykin v. State, 86 Miss. 481, 38 So. 725; Fulton v. State, 209 Miss. 565, 47 So.2d 883; Gamblin v. State (Miss.), 29 So. 764; Harris v. State, 175 Miss. 1, 166 So. 392; Hudson v. State, 185 Miss. 677, 188 So. 561; Lee v. State, 138 Miss. 474, 103 So. 233; Lofton v. State, 79 Miss. 723, 31 So. 420; McMaster v. State (Miss.), 29 So. 522; Middleton v. State, 80 Miss. 393, 31 So. 809; Perkins v. State, 229 Miss. 299, 90 So.2d 650; Ross v. State, 185 Miss. 438, 188 So. 295; Scott v. State (Miss.), 42 So. 184; Stricklin v. State (Miss.), 13 So. 898; Thigpen v. State, 219 Miss. 517, 69 So.2d 241; Thompson v. State, 190 Miss. 639, 200 So. 715; Wilburn v. State, 73 Miss. 245, 18 So. 576; Woods v. State, 183 Miss. 135, 184 So. 311. II. The verdict of the jury is contrary to the overwhelming weight of the evidence and the verdict of the jury is not supported by substantial evidence. Ashford v. State (Miss.), 6 So.2d 471; Batteast v. State, 215 Miss. 337, 60 So.2d 814; Brown v. State, 219 Miss. 749, 70 So.2d 23; Dickens v. State, 208 Miss. 69, 43 So.2d 366; Heflin v. State (Miss.), 178 So. 594; Jolly v. State (Miss.), 174 So. 244; Justice v. State, 170 Miss. 96, 154 So. 265; Ladner v. State (Miss.), 9 So.2d 878; Miller v. State, 198 Miss. 271, 22 So.2d 164; Nichols v. State, 174 Miss. 271, 164 So. 20; Shimniok v. State, 197 Miss. 179, 19 So.2d 760; Sones v. State (Miss.), 155 So. 188; Stricklin v. State, supra; Tubb v. State, 219 Miss. 741, 64 So.2d 911. III. The trial court committed reversible error in overruling appellant's motion for a new trial and in refusing to allow further instructions to be requested in writing by appellant and the State if desired. Browning v. State, 33 Miss. 47, 1 Mor. St. Cas. 991; Coker v. State, 200 Miss. 535, 27 So.2d 898; Horn v. State, 216 Miss. 439, 62 So.2d 560; Ware v. State, 218 Miss. 173, 65 So.2d 236. IV. The trial court committed reversible error in overruling defendant's objection to testimony objected to by the defendant and in sustaining the exclusion of testimony offered by appellant. Hawkins v. State, 224 Miss. 309, 80 So.2d 1; Pope v. State, 242 Miss. 362, 135 So.2d 818; Smothers v. City of Jackson, 92 Miss. 327, 45 So. 982; State v. Sisk, 209 Miss. 174, 46 So.2d 191; Tubb v. State, supra; Wallace v. State, 170 Miss. 454, 155 So. 197; 22A C.J.S., Sec. 682 p. 729. G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee. I. It was not error to grant the State the instruction complained of. Baggett v. State, 219 Miss. 583, 69 So.2d 389; Holmes v. State, 201 Miss. 509, 29 So.2d 312; Lewis v. State (Miss.), 118 So. 708; Ross v. State, 234 Miss. 309, 106 So.2d 256. II. The verdict of the jury is not contrary to the weight of the evidence. Cobb v. State, 235 Miss. 57, 108 So.2d 719; Scott v. State, 185 Miss. 454, 188 So. 546. III. The trial court did not err with respect to further instructions to the jury. Abney v. State, 123 Miss. 546, 86 So. 341; Ellerbee v. State, 79 Miss. 10, 30 So. 57; Gangloff v. State, 232 Miss. 395, 99 So.2d 461; Sec. 1530, Code 1942. IV. As to the testimony with respect to the residence of appellant. Allen v. State, 230 Miss. 740, 93 So.2d 844; Gillespie v. State, 15 Miss. 380; Peacock v. State (Miss.), 42 So.2d 232; State v. Goering, 200 Miss. 585, 28 So.2d 248.
Judges
  • McGEHEE, C.J.
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Smart Summary

DAVIS v. STATE

1. Homicide — manslaughter — evidence — conviction sustained.

Evidence sustained manslaughter conviction and imposition of ten-year sentence.

Headnote as approved by McGehee, C.J.

McGEHEE, C.J.

The appellant, Willie J. Davis, was indicted, tried and convicted in the Circuit Court of Scott County for the crime of manslaughter, and sentenced to serve a term of ten years in the state penitentiary.

Under Section 1963, Code of 1942, it is required that the Supreme Court shall render an opinion in writing in all felonies where the punishment prescribed is ten years or more.

The appellant shot and killed one Roosevelt Jones at the appellant's home at a time when Jones was not shown to have been armed with a weapon of any kind. At least the evidence is conflicting as to whether or not the said Roosevelt Jones was making any effort to harm the appellant at the time of the shooting. Moreover, the appellant and his witnesses, although claiming at the trial that at the time of the shooting the deceased had reached toward his hip pocket as if to draw a weapon, they all admitted in their testimony that at the time the officers were investigating the shooting they did not mention such alleged fact to the officers. In other words, it was then the appellant's theory that the shooting was accidental. Then, too, there was testimony that the deceased had held up his hands immediately before the shooting by the appellant. (Hn 1) We think that this was just another Saturday night disturbance and shooting, and that the evidence, though conflicting, was ample to sustain the verdict of manslaughter and the sentence of ten years imposed, and that, therefore, the judgment and sentence should be, and the same is, hereby affirmed.

Affirmed.

Kyle, Gillespie, Rodgers and Jones, JJ., concur.

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DAVIS v. STATE
(Mar 5, 1962)