GRIFFIN v. STATE

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Docket Number

No. 35777.

Attorney(S)

C.A. Bratton, of Oxford, and A.M. Mitchell, of Pontotoc, for appellant. If all of the testimony in the case, whether introduced by the state or by the defendant, leaves the question of the defendant's guilt in reasonable doubt, a judgment of conviction cannot be upheld. Houston v. State, 117 Miss. 311, 78 So. 182; Patty v. State, 126 Miss. 94, 88 So. 498; Wesley v. State, 153 Miss. 357, 120 So. 918; Walters v. State, 153 Miss. 709, 122 So. 189; Gray v. State, 158 Miss. 266, 130 So. 150. It is the established rule in this state that where the defendant or the defendant's witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a creditable witness or witnesses for the state, or by the physical facts, or by the facts of common knowledge. Jarman v. State, 178 Miss. 103, 172 So. 869; Henderson v. State (Miss.), 180 So. 89; Weathersby v. State, 165 Miss. 207, 147 So. 481. The court erred in receiving the verdict of the jury in the absence of the attorneys for the appellant. Woods v. City of Tupelo, 112 Miss. 132, 72 So. 879. Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee. Where the testimony of the eyewitnesses is in material respects unreasonable, or is contrary to the evidence of the attendant circumstances, including the physical facts, the case must be submitted to the jury. Webster v. State, 194 Miss. 381, 12 So.2d 533; Thornton v. State, 178 Miss. 304, 170 So. 541; McGehee v. State, 138 Miss. 822, 104 So. 150; Grady v. State, 144 Miss. 778, 110 So. 225; McFatter v. State, 147 Miss. 133, 113 So. 187; Brumfield v. State, 150 Miss. 552, 117 So. 529; Smith v. State, 167 Miss. 85, 147 So. 482. While it is the right and privilege of the defendant to refrain from taking the witness stand, and no presumption is to be indulged against him for exercising that right, still the testimony of an adverse witness, when such is the case, may be given full effect by the jury. Reeves v. State, 159 Miss. 498, 132 So. 331. Where on the trial of the accused for murder his counsel absented himself and refused or neglected to come into court when the jury returned their verdict and no request was made by the accused that he be permitted to have his counsel present before the verdict was received or sentence imposed upon him, it was not error for the court to receive the verdict and impose sentence in the absence of counsel for the accused and he was not thereby denied any right guaranteed him by the Constitution or the laws. Schwartz v. State, 103 Miss. 711, 60 So. 732; Thomas v. State, 117 Miss. 532, 78 So. 147; Code of 1942, Sec. 2519. Argued orally by C.A. Bratton, for appellant, and by R.O. Arrington, for appellee.

Judges

Roberds, J., delivered the opinion of the court.

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GRIFFIN v. STATE.

1. HOMICIDE.

Evidence supported conviction of murder as against testimony of defendant's wife that defendant acted in self-defense.

2. CRIMINAL LAW.

Where defendant's counsel was voluntarily absent from courtroom at time verdict was returned in murder prosecution, and trial judge himself polled the jury, and defendant was present and did not object to verdict being received nor did he request the court to send for his attorney, receiving the verdict in absence of defendant's counsel was not error.

Roberds, J., delivered the opinion of the court.

Appellant was convicted of murder and sentenced to the penitentiary for life. On this appeal he contends, first, that his request for a peremptory instruction should have been granted; and, second, that the verdict of the jury was erroneously received by the trial judge in the absence of appellant's attorneys.

His request for a peremptory instruction is grounded upon the contention that his wife was the only eyewitness, aside from himself (he did not testify), and that her testimony shows that he acted in self-defense and that her evidence is reasonable and is not contradicted by other witnesses, nor by the physical facts; and, under the rule announced in Weathersby v. State, 165 Miss. 207, 147 So. 481, he should be discharged. We deem it unnecessary to detail the testimony. It is sufficient to say that we have carefully read and considered it, and that the evidence of Mrs. Griffin is contradicted in material respects by the physical facts and by other witnesses, and by what she herself told others. In fact, her testimony itself, considered all together and properly analyzed, justifies the verdict of the jury.

On the second question, learned counsel for appellant cites no authority in support of their contention that it was reversible error for the trial judge to receive the verdict in the absence of his counsel. The order of the trial judge overruling a motion of appellant for a new trial, one ground of which was the contention now under consideration, recites that counsel for appellant were voluntarily absent from the courtroom when the verdict was returned and that the trial judge himself polled the jury. The defendant was present. He did not object to the verdict being received nor did he request the court to send for his attorneys. It was not error for the trial judge to receive the verdict in the absence of counsel for defendant under these circumstances. Schwartz v. State, 103 Miss. 711, 60 So. 732.

Affirmed.

GRIFFIN v. STATE.

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