This case has been under earnest consideration and reconsideration by us since October 28, 1946. On November 11, 1946, the judgment and sentence was affirmed, but with reluctance on the part of the majority of the members of the Court, two of whom expressly voiced that reluctance by a specially concurring opinion. Upon the coming in of the suggestion of error and a reconsideration of the case upon it, that reluctance was found to have grown to something more than reluctance, two of the members, other than the two who expressed themselves in the specially concurring opinion, having come to have some serious doubt whether the charge should be allowed to stand for a higher offense than manslaughter. We thereupon set aside the judgment of affirmance and called for a reply to the suggestion of error, and this having come in, together with appellant's rejoinder to the reply, we have again gone over the case, and have come to the final conclusion that the verdict should be set aside and a new trial awarded. *Page 871
When the case was first here, Magee v. State, 198 Miss. 642,22 So.2d 245, it was supposed by us that the death sentence was carried by the verdict because of the erroneous and inflammatory evidence dealt with by the Court on that appeal. It did not occur to us that with that evidence eliminated, any properly selected jury, wholly without bias, would again return a verdict authorizing the infliction of the death penalty. All of us concur that the present record does not justify the death penalty, some of us feeling that the execution of a death sentence under the record in this case would be a reproach upon justice.
This is no case of an assassination, or of a deliberate and premeditated urge to murder, or a homicide committed in the furtherance of another crime, or anything of the like. A considerable number of negroes were gathered together after night in the colored department of the restaurant operated by deceased and some of them were drunk or drinking, among whom was a brother of the appellant. This brother had a pistol of small calibre, and appellant, in order that his brother might do no harm with the weapon, took it from him. Appellant had no purpose, and manifested none, to use the pistol himself nor to engage in any altercation, and he did nothing to provoke any altercation. He had simply taken the pistol and put it in his pocket. But deceased, under a mistaken impression, jumped over the counter armed with a large calibred pistol, and intruded himself into what was going on, with the result that a general melee immediately broke out, with more than ordinary confusion; which progressed in a continuous and unbroken course of events, until within an extremely short time the deceased, the appellant, and others found themselves outside the restaurant on or just beyond the sidewalk, and in semi-darkness.
The version of the appellant, supported by other witnesses, was that at the point last mentioned appellant, as a consequence of the melee, was down on his knees, and that the deceased was standing almost immediately over *Page 872 him, trying to use the large pistol above mentioned, but which, according to the undisputed proof, had become jammed, although this was unknown to appellant, and that from his position on his knees appellant fired three shots from the pistol which he had taken from his brother, as already stated. The conviction, with sentence of death, rests upon the contrary version of Stokes, the only witness for the State who testified to that version, and his story was that appellant was standing when he fired the three shots, first about ten feet from the deceased, the second when appellant had made a nearer approach, and the third and fatal shot when appellant, still standing, had come to a point almost against the body of the deceased.
The State, in its reply to the suggestion of error, in its effort to meet the undisputed physical fact that the bullet causing the fatal wound ranged upward, has been compelled to resort to conjecture, nor has it satisfactorily met the second point mentioned in the specially concurring opinion, besides which there are other discrepancies in Stokes' testimony emphasized in appellant's rejoinder which it seems to the majority of us has not been, and cannot be, adequately met upon the present record, all of which leads us to the stated final conclusion, and after the prolonged reconsideration mentioned, that a death sentence should not be allowed to stand on the doubtful and undependable and unsupported testimony of this witness, Stokes, and that the verdict should be set aside as against the weight of the evidence, and it will be so ordered. We do not pursue the facts in further detail, since the case may be retried.
The suggestion of error is sustained, the verdict and judgment is reversed and the case remanded.
Reversed and remanded.
Sydney Smith, C.J., did not participate in this decision. *Page 873