Smith v. State

1 Miss. Dec. 19

• Court: Mississippi Supreme Court
• Decided: June 1, 1885
• Status: Published

Opinion

Opinion.

Arnold, J.:

The manner of organizing the jury was not improper and wa3 warranted by the authority of Thompson v. The State, 58 Miss. 62; Smith & Cavin v. The State, 61 Miss. 754. There was no •error in refusing to hear the application for a change of venue at the time when it was made. The law regulates the time and manner in which such application shall be made and heard. It may be made in term time or in vacation, but generally not after a special venire has been drawn, and never after the trial has been commenced and the jury is in part completed. Code, § 3063.

The presiding judge had better opportunities than rve have for -determining whether or not a conversation occurred, as alleged, with one of the jurors. His conclusion on the subject is sustained by the record, and we accept it as true.

If it be conceded that threats made by the deceased were -competent evidence in the state of case shown by the record, still the testimony of the witness Watts was properly excluded. The declarations of the deceased related by him cannot justly be •characterized as threats, and the appellant had the benefit of the more positive testimony of other witnesses in regard to threats made by the deceased.

No error was committed in giving or refusing instructions of which appellant can justly complain. The facts of the case did not warrant a more liberal interpretation of the law than was ■given by the court. Taking the most favorable view that can be suggested in his behalf from the record, and admitting that Evans struck first with his hand, or fist, the appellant was properly convicted of manslaughter.

The judgment is affirmed.