Magee v. State

27 So. 2d 767, 200 Miss. 861, 1946 Miss. LEXIS 347

• Court: Mississippi Supreme Court
• Decided: November 11, 1946
• Docket: No. 36158.
• Status: Published

Opinions

Magee was convicted of the murder of Ernest Conn, sentenced to death, and he appeals.

A former appeal was before this Court, Magee v. State,198 Miss. 642, 22 So.2d 245.

A motion for continuance because of the absence of Frankie Robinson, a witness, was denied by the lower court. Appellant says that was error. Frankie testified at first trial. The record discloses that her evidence was merely cumulative, and it is not shown that she could be produced at a subsequent trial, and on the motion for a new trial no affidavit of this witness was produced showing what her testimony would be, nor was there any showing that it was impracticable to produce such affidavit. Under these circumstances the Court was correct in overruling the motion. Samuels v. State, 153 Miss. 381, 120 So. 920; Hodgkin v. State, 172 Miss. 297, 160 So. 562; Lamar v. State, 63 Miss. 265; Henderson v. State, 187 Miss. 166, 192 So. 495.

Appellant introduced as a character witness one W.L. Kitchen, who testified that Magee's general reputation for peace or violence was good. In another place he said, "So far as I know it was good." On cross-examination Kitchen was asked, "State whether or not it isn't true that Sandy Magee, this boy sitting right here, had reputation out there, general reputation in the community where he lived for getting into shooting scrapes." Objection to this question was overruled. The witness answered, "I heard of him being in a shooting scrape." Appellant says this action of the court was reversible error. The question and answer were competent here. If Magee had the general reputation of engaging in shooting scrapes, so known to the witness, that fact would bear not only upon the accuracy of the witness's conclusion that his reputation for peace or violence was good, but also upon the witness's credibility in so stating.

In the opinion in the former case [198 Miss. 642, 22 So.2d 246], this Court stated that: "It is permissable on cross-examination, when testing the good faith and credibility of a character witness, to ask if he has not heard rumors or reports in the community of particular acts of violence imputed to the defendant which are inconsistent with the testimony then being given by the witness regarding the good reputation of the accused as to the particular trait of character inquired about, * * * and to ask whether or not he had heard of specific charges of misconduct made against the defendant in the community * * *," although it would be error to go into details of the specific incidents. The question and answer under discussion came within the above rule. Smith v. State, 112 Miss. 802, 73 So. 793.

The main contention upon which Magee relies for reversal is that, under the evidence in the case, the jury should not be permitted to find him guilty of any crime, but if so, not a greater crime than manslaughter. He admitted that he shot and killed Conn, but he said he did so in self-defense. Without undertaking to detail the evidence, it is enough to say that the testimony on the part of the State amply supports the verdict of murder; that on the part of Magee would have sustained a conviction of manslaughter or an acquittal. The State obtained an instruction submitting to the jury the question of murder or manslaughter. Defendant's instructions explained the distinction between murder and manslaughter, and asked for an acquittal. Under the instructions and the evidence the jury could have returned a verdict of murder, manslaughter or not guilty. It found appellant guilty of murder, and there being sufficient evidence to sustain that verdict, the contention must be overruled.

The judgment will be affirmed, and Friday, December 20, 1946, is set for the date of execution.

Affirmed. Sydney Smith, C.J., did not participate in this decision.