Winston v. State , 127 Miss. 477 ( 1921 )

Ethridge, J.,

delivered the opinion of the court.

The appellant Avas indicted for murder and upon trial was convicted of manslaughter and sentenced to a term in the penitentiary, from which judgment he appeals.

It appears that the killing occurred in 1915, and that the appellant left the community and was not arrested until 1919, and the case was continued until April, 1920, and again to October of said year.

It appears that the killing occurred at a crap game at Avhicli a large concourse of negroes were assembled. The deceased, Tom Diamond, seemed to have been in charge of running tbe game, and the appellant was participating in the game, betting thereon, and also betting on the side. It seems to have been contrary to the rule of the game to bet “on the side,” and Diamond had deducted a nickel out of Winston’s winnings for the infraction of this rule, and the difficulty arose out of Diamond’s actions thereon. The appellant, according to the state’s fitnesses, stated to Diamond that he would have his nickel or go to hell, and that Diamond replied that he would have to go to hell because he was not going to give him the nickel. Some one produced a nickel to satisfy the dispute, but that seemed not to have satisfied the appellant, at least according to the state’s evidence, and the difficulty Avas reneAved when Diamond seized a lamp chimney and struck the appellant a blow on the cheek and the appellant fired tAvice, according to the state’s Avitness, shooting the deceased through the breast, the bullet entering beloAV the left nipple and ranging upwards and making an exit just below the collar bone. According to the state’s witnesses these two shots were fired before the light Avent out, and some shots were fired after the light Avas extinguished. It appeared from the witnesses testifying on the trial that one shot took effect, and that the other went Avild, but after the trial and verdict proof was produced by the appellant to shoAV that Diamond was shot twice, one of the balls entering the abdomen, and that either wound Avould have been fatal.

It is first, contended that the indictment is fatally defective because it charges that the defendant “did then and there willfully, feloniously, and of his malice aforethought kill and murder Tom Diamond, a human being, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state.” It is argued that the Avord “unlawfully” is omitted, and that this vitiates the indictment, inasmuch as the killing of a human being is justified under some circumstances. The argument, Ave think, is Avithout merit, independent of the statute, because the word “felonious” carries Avith it the meaning and idea that killing is unlawful. There may be an intentional killing without it being a crime, but we cannot conceive of a felonious killing which would be lawful.

By section 1431, Code of 1906 (section 1187, Hemingway’s Code), it is expressly provided by statute that it shall be sufficient to charge in an indictment for murder that the defendant did feloniously, willfully, and of his malice aforethought, kill and murder the deceased.

In addition to what we have said, the question was not raised in the court below by demurrer, and the statute expressly requires this to be done.

It is next insisted that the verdict is contrary to the weight of the evidence. The evidence shows clearly and plainly that the defendant fired the shot, and that the only difficulty occurring that night was between the deceased and the defendant. It is insisted, however, that the evidence shows that the shot was fired in self-defense, inasmuch as it appears without dispute that the deceased struck the defendant with a lamp chimney. It does not appear that the blow with a lamp chimney would likely result in death or that it was necessarily a deadly weapon. It further appears that the shot was fired after the blow, and not to prevent the blow. The jury were warranted in finding the defendant guilty of manslaughter on the evidence.

It is next insisted that the court should have ordered a mistrial for the reason that the testimony of one Alf Rushing was taken during the absence of appellant from the courtroom, and that the attempt to waive his right to be present was illegal and could not be waived by him. It appears that when Rushing was offered as a witness he was asked as to whether he knew the defendant, and also a question tending to show or elicit the answer that the defendant had fled from the scene of the crime or killing. At this stage the trial judge discovered the absence of the defendant, stopped the proceedings before the question was answered as to flight, and when the defendant came in, he being at the time in the witness room, the judge asked counsel if he desired the jury discharged and a mistrial entered, or whether he preferred to proceed with the trial. Counsel stated he preferred to proceed; that he did not desire to raise this question. The court then called the defendant around, explained to him that he had a right, or that he Avould grant him a mistrial if he desired it, and would not make him announce an election, but that, unless he elected to proceed, a mistrial would be entered, and that he could confer with his counsel about the matter. After conferring with his counsel, the defendant in person stated that he preferred to proceed with the trial and the trial proceeded.

We think there is no merit in this contention because section 1495, Code of 1906 (section 1253, Hemingway’s Code), as construed in Thomas v. State, 117 Miss. 532, 78 So. 147, Ann. Cas. 1918E, 371, provides that the presence of the prisoner may be waived. The statute applies at any stage of the trial, and, unless we can say from the record that the appellant is prejudiced by his presence being waived, we will not reverse the case. There Avas nothing that transpired in the absence of the appellant that would warrant a reversal of the case. There is no merit in the other contentions.

Affirmed.