Woodward v. State , 180 Miss. 571 ( 1937 )

The appellant was convicted of manslaughter, and the judgment was heretofore affirmed, and reported under the style of Woodward v. State, 177 So. 531. On the suggestion of error it is insisted that there is no evidence to show that the appellant procured a shotgun for the purpose of assaulting or killing the deceased, or when, under what circumstances, or for what purpose, he procured the gun with which the deceased was killed; and that there is no evidence warranting the giving of the instruction for the State, set out in the opinion in 177 So. 531, at page 533.

It is true that no witness directly testified as to when and where the gun was procured, or for what specific purpose. There is an old maxim to the effect that "Actions speak louder than words," which is applicable here. The jury had a right to draw inferences from all the evidence in the case, and to accept the testimony of some witnesses in part, rejecting other parts; and to accept part of the evidence on behalf of the State, and part of that on behalf of the defendant; and, after finding the facts, to draw reasonable inferences therefrom.

It appears clearly from the testimony of State witnesses that on the evening of the killing, and prior thereto, the defendant and others in the car with him, drove up in front of the house where the deceased and three other persons had already arrived and were sitting in the parked car; that the defendant and his brother started into the house, whereupon the deceased turned the light of his car upon them. The defendant, appellant here, asked why he had flashed that light on; the State witnesses testified that nobody answered appellant, but that deceased turned the light off; however, the brother of appellant, testifying for him, gave a different version of what happened at that time, some time prior to the killing. The brother of appellant stated:

"We parked there and started down to James and he turned the lights on, and Winston said don't turn those lights on.

"Q. Did anyone in the car say anything? A. Walter said if he did not like it he would turn them on again and Winston said don't turn them on and Walter Roberts got out and said: You country son-of-bitch if you don't like it I will shoot Hell out of you, talking to Winston.

"Q. What did this Walter Roberts have in his hands at that time? A. A Shiny pistol pointed in his hand like this, (indicating the pistol to be in a shooting position).

"Q. What did you all do then? A. Went on down to James' house.

"Q. How long did you stay there? A. Not long.

"Q. What did you go down there for? A. To meet Oren."

The three witnesses for the State testified as to these circumstances, denied that the deceased drew any pistol, or used any such language as above testified to by the brother. The testimony for the State showed that appellant and those with him drove off; the deceased and his companions also driving away, later returning and parking near the place where they had formerly parked; that thereafter the appellant and his brother, and others, returned in the car approximately to the place occupied by them on the first occasion, the appellant got out of the car with a shotgun, and approached the car in which the deceased sat, in a drawing position, or shooting position, as it was then expressed. The two girls in the car got out and ran into the house before which the cars were parked, and about the time they got into the house a shotgun was fired, and in a short time, a pistol.

The witness Jamieson, who was in the car with deceased, testified that the deceased did not draw a pistol, did not get out of the car, and did not have a pistol drawn when the appellant approached the car with a shotgun in shooting position; and, also, that the appellant fired the first shot, while the deceased was attempting to get his pistol from the pocket of the car, reaching over the back of the seat; that the pistol of deceased was fired, not toward the appellant, but down in the back part of the car through the floor.

Witnesses for appellant testified that the deceased first drew his pistol on the appellant on the second meeting. The brother of appellant denied that he accompanied his brother on the return to the scene where the killing occurred; but said that he and others returned in a car, and that soon his brother, the appellant, came up with a shotgun; he did not know where it had been procured. The appellant and his brother came to town that afternoon, and no witness testified that the appellant had a gun on the occasion of the first trouble in regard to turning on the lights.

It is clear, therefore, from the evidence that between the occasion of the first altercation and the killing the appellant had gone away, procured a gun, and returned to the scene of the killing. This much is not in dispute. But the State's witness testified that when the appellant returned with a gun he approached the car with the weapon in shooting position, inquired who was in the car, and thereupon shot the deceased when the latter was doing nothing to appellant. It is true that witnesses for appellant, the appellant himself not testifying, testified that the deceased shot first. One of the witnesses for the appellant stated that the shotgun was fired after the pistol; that he was in the house when the girls ran in, and that he heard the pistol and then the shotgun; but on cross-examination this witness admitted that he had signed a statement subsequent to the killing, to the effect that the shotgun fired first and the pistol second. It is true, this statement was not introduced in evidence in full, but it was exhibited to this witness, and he admitted making the statement, but claimed that it was untrue.

The appellant was arrested the following morning after the killing, and denied that he knew anything about it, according to evidence introduced by the State. While it is the right of the defendant not to testify, and the jury is not authorized to make unfavorable deductions from his failure to do so, yet when such testimony as was given by the witnesses in this case is introduced, and the procuring of the gun is unexplained, it is not shown that it was procured for an innocent purpose, the jury have a right to draw inferences from the facts so testified to, and under the circumstances here were warranted in coming to the conclusion that the appellant procured the gun for the purpose of killing the deceased, that he began the difficulty, and fired the first shot. The State had the right, under the given facts, to submit to the jury the question presented in the instruction.

Overruled.

The suggestion of error is overruled.