Harvey v. State

10 So. 2d 552, 193 Miss. 561, 1942 Miss. LEXIS 153

Opinion

Roberds, J.,

delivered the opinion of the court.

Appellant was indicted for murder, and convicted and sentenced for manslaughter. He was the only eyewitness. According to his testimony the shooting was accidental. His version is reasonable and he is not substantially contradicted in material particulars by any other witness nor by physical facts or facts of common knowledge. Oh this record he was entitled to a directed verdict of acquittal (Weathersby v. State, 165 Miss. 207, 147 So. 481; Thornton v. State, 178 Miss. 304, 170 So. 541), but we cannot discharge him because no request for such verdict was made in the trial court.

In case of retrial evidence of a prior difficulty between tbe parties, under the circumstances shown in this record, would be incompetent. Collier v. State, 106 Miss. 613, 64 So. 373; Floyd v. State, 166 Miss. 15, 148 So. 226.

Eeversed and remanded.