Pope v. State

62 So. 10, 105 Miss. 133

• Court: Mississippi Supreme Court
• Decided: March 15, 1913
• Status: Published

Opinions

Feed, J.,

delivered the opinion of the court.

Levi Pope was indicted for murder, and convicted of manslaughter. He contends that the evidence in the case was not sufficient to sustain a verdict of manslaughter. He assigns as error the giving at the instance of the state, of the following instruction: ‘ ‘ The court instructs the jury that, if you believe from the evidence beyond a reasonable doubt that the defendant killed the deceased in the heat of passion, without malice, at a time when he was in no danger, real or apparent, of losing his life, or of receiving great bodily harm, at the hands of the deceased, you will find him guilty of manslaughter, and the form of your verdict will be: ‘We, the jury, find the defendant guilty of manslaughter.’ ”

It is argued by counsel for appellant that there are only two theories arising out of the evidence in this case, to wit: First, a case of murder; second, a case of self-defense. The state claims that there is another theory from the evidence — a case of manslaughter. If the jury believed only the testimony introduced by the state, they could have found appellant guilty of murder. On the other hand, if they believe only the testimony for the defense, they could have acquitted him. But a careful reading of the entire record in this case leads us to conclude that the jury could have considered together all of the testimony, that for the state as well as that for the defense, and, after harmonizing it as far as possible, could have decided that appellant was not guilty of murder, nor was he justified in killing deceased, but that he was guilty of manslaughter. They could have believed some of the testimony for the state and some of that for the defense. To illustrate: The theory of appellant’s defense depends in a large measure upon the fact that deceased was assaulting him with a knife when he fired the fatal shot. Now the testimony shows that the knife was afterwards found on the ground near the place of the altercation, and that it was closed, and the testimony of the surgeon showed that the scratch, or slight wound, over appellant’s eye, might have been caused .by any sharp object, or by a scratch of the finger nail. The jury could have decided from the testimony that appellant was not cut by the knife, and that it was not really being used in the fight when he shot the deceased, and could have decided that in the sudden encounter, after being struck with the stick, which was broken, appellant, in the heat of passion, and without justification, killed deceased. Therefore, we do not believe that the trial court erred in giving the instruction complained of.

We do not see any reversible error in the action of the court in the rulings relative to the admission of certain testimony by Dr. Primrose, the surgeon who attended deceased, with reference to the course of the bullet in the body of deceased. He was permitted to testify what he actually knew of the wound, and through what organs in deceased’s body the bullet would have gone, if it followed a certain course, and the effect of such wound. He did not probe the wound, nor did he make any autopsy of the body. The bullet did not come out, but remained in •the body. In the absence of knowledge from an internal examination, the surgeon was not permitted to express his opinion as to the course of the bullet.

Affirmed.