Walker v. State , 140 Miss. 238 ( 1925 )

^* Headnotes 1. Homicide, 30 C.J., Section 659; 2. Homicide, 30 C.J., Section 420; 3. Homicide, 30 C.J., Section 529; 4. Homicide, 30 C.J., Section 557. Defendant, Isom Walker, appellant here, was convicted of murder and sentenced to the penitentiary for life. We quote the following facts: On the morning of the homicide, the defendant went to the home of Mr. Wilson and requested that he telephone the sheriff that a dead man was lying in the road about two hundred or three hundred yards from appellant's home. The witness Bales responded to this call, and to this witness the defendant made the following statement:

"`When I met him I didn't give him any show at all.' He pointed to a tree down the road; he says, `He begin to reach like he was reaching for a gun, and I went right on down the road meeting him, and didn't give him any show at all,' and then he showed me where he cleaned the blood off his ax on the ground."

Precisely the same statement was made to another witness, and the sheriff and the officers found the dead body of Josephus Isaacs lying in the road with his head down hill, practically severed from his body, with five or six cuts on his neck. The defendant moved to exclude the testimony of these witnesses, which was overruled by the court. Thereupon he was sworn as a witness, and gave his account of the homicide, which is as follows:

"When he got pretty close to me, he throwed his hands up like that [showing], like he was going to throw his hand in his bosom to get a gun — I didn't see no gun, but it looked like he was kind of unbuttoning his shirt. I don't know what he was going to do, but he put his hand in his bosom, and, after he done that and was coming on toward me, he taken his hand out of his bosom, and then he says, `You God damn black son of a bitch, I have got your wife, and that's not all, I have got her and you can't help yourself.' He says, `I can mighty near have any negro's wife in this neighborhood with my money,' and it looked to me like he was going after a gun. I don't know whether he had a gun or not, but as he went in his bosom the second time I thought he was going after his gun again, and as he got near me he taken it out and put it in his pocket and says, `You son of a bitch and a few white ones says I got your wife and can get most any negro's wife in this neighborhood and a few white ones,' and about that time, I had my ax under my arm —

"Q. How did you have your ax? A. I had it under my arm in this manner.

"Q. Was it cold that morning? A. Yes, sir. About the time he got at me he looked like he was coming on me, and he first put his hand up here, and when I got in a few steps of him, I was on this side of the road, and I understood the law is to always give a man his side of the road; we had met before, and we would always say `Good morning' or `Good evening,' but this time he was near the middle of the road and as he got nearer to me, the closer he got to my side of the road. I couldn't say he had a gun and wouldn't, but about the time he got pretty close to me I thought about my ax, and I grabbed my ax from under my arm. I don't remember positively how I hit him with it, but I hit him a lick like this, and as I hit him he was near my side of the road and then he made a rush to come on me. I was afraid he had a gun, and I knowed that he had showed me his gun before at his house, and I had seen in front of his house where he had shot a cedar. You understand I didn't know what he had, and for fear he did have one when he got near enough to me, you understand, I made a jump and got my ax. I don't know whether I hit this way with the ax or over this ways; any way I hit him with the ax, and it knocked him down, but he was coming right on me, and as I struck him it knocked him back on his side of the road, and, after he fell. I don't know just how I hit him, but I hit him something like this, but whether I hit him any more than two or three licks I don't know. You understand I was so scared this man was going to get hold of me until I didn't know what to do, and of course you understand I knocked him off, and all I can tell you after that I was scared, and I was afraid he was going to get up, and I knowed if he got up, and knowing he was a bigger man than me and as good a man as me, and, you understand, I hit him two or three licks, and after I seen he wasn't going to get up, I went over to the other side of the road and wiped my ax off, and went on back to my house, and left my ax and went on over to Mr. Poley Wilson and got his wife to telephone for the sheriff."

From this statement the defense interposed by the defendant on the witness stand to this most horrible and brutal killing is that he was afraid of the deceased. It will be noted that at the time he struck the blow the appellant does not contend that the deceased was doing anything with his hand, and that he continued after he had knocked him down with an ax to chop the deceased's neck. The most that can be said in defendant's favor is that under his own statement of the facts upon the witness stand he was guilty of murder or acted in self-defense. Although in the general instruction the court charged the jury that defendant might be convicted of manslaughter, we find no element of manslaughter in this case; hence it was not error for the court to refuse instructions defining manslaughter. Likewise there was no error in the court's refusal to permit Jesse Caston to testify as to a threat made by the deceased against him (Caston).

We think the dead body of Josephus Isaacs, found lying in the road by the officers, with a hole over the right eye, with his throat cut and bruised, throat bone cut in two, and with five or six cuts in the neck, sufficiently establishes the corpus delicti.

The jury took the view that this was a case of murder, and we see no reason for disturbing their finding.

Affirmed.