Appellant was convicted of murder, and from a verdict and judgment carrying capital punishment, he appeals.
Appellant was the sole occupant as prisoner in the jail at Wiggins. His victim was the jailer, E.M. Reynolds. Mr. Reynolds was last seen alive upon the morning of the homicide, while carrying victuals from his home to the prisoner.
A witness who was working outside the building heard sounds of a struggle about 8:30 A.M. He reported this circumstance to the sheriff, and one of his deputies proceeded to the jail and found the door open, the prisoner escaped, and the jailer lying upon the floor in a pool of blood, unconscious and mortally wounded. Death followed shortly thereafter.
Near the body witnesses found a piece of pipe with a faucet attached, and an iron shackle or leg-iron, both of which bore particles of hair and blood. The jailer was grievously wounded by multiple blows upon the head and at the base of the skull, penetrating and exposing parts of the brain tissue. His arm suffered several fractures. The defendant was shortly thereafter seen running across the yard of a witness, from whom he requested clean clothes to replace those he wore which were stained with blood.
Self-defense was interposed as the plea of the defendant. His version was that when the jailer came to the *Page 854 cell bearing the prisoner's breakfast, the latter was asleep; that the jailer proceeded at once to kick him, saying "wake up you black so and so"; a statement later elaborated with the addition "wake up and see yourself die"; that the jailer then struck at him, and in the scuffle which followed the prisoner felled him with a blow from his fist. He denied using either the pipe or the shackle. He sought to attribute the death to the victim's fall upon the floor.
Appellant invokes Weathersby v. State, 165 Miss. 207,147 So. 481, and similar cases which require that when there are no eyewitnesses other than the defendant, his version of the homicide must be accepted "if reasonable," and "unless substantially contradicted in material particulars by a credible witness or witnesses for the State or by the physical facts or by facts of common knowledge."
We cannot do otherwise than deny the application of this principle here since the defendant's version is palpably contradicted by physical facts.
Error is predicated upon the failure of the State to show that the blood and hair upon the two instruments were of human origin, and that objection ought to have been sustained to the statement of the examining physician that in his opinion the wounds were inflicted by "something resembling a tong" which lay beside the body. As to the first assignment, the testimony was quite relevant as part of the description of the alleged weapons and the State was free to forego further and more incriminating identification. Appellant asserts that the jailer had a piece of iron in his hand, and that he saw a "piece of pipe" on the floor as he left the cell to escape.
As to the second assignment, we find no reversible error. Regardless of whether the comment of the physician was an attempt expertly to describe the wounds in terms of a typical causation or whether he was gratuitously venturing a lay opinion, prejudice cannot be found therefrom. Moreover, the shackle is described as resembling a tong. The identity of the lethal instrument *Page 855 is not so important as the fact that one was used, and it is not material whether the jury found that either or both were used. Certainly, the evident fact that the blows were inflicted by an instrument of the type of those introduced rather than by blows of a fist would save the comment from prejudicial error.
The case was fairly and ably tried under due process. Defense counsel appointed by the court were faithful and skillful in defendant's behalf. The verdict of the jury must stand.
Affirmed, and the date of execution set for Friday, January 30, 1948.