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MAY 04, 1983




This is an appeal from the Circuit Court of Monroe County wherein John Edward Colburn, appellant, was indicted, tried and convicted for the July 8, 1981, aggravated assault upon Mabel Colburn, his former wife. Upon conviction, Colburn was sentenced to serve a term of fifteen years in the custody of the Mississippi Department of Corrections. We affirm.

Mabel Colburn and appellant were married in 1955, divorced in 1963, remarried in 1969 and divorced again in January of 1974. They have four children. Mabel and appellant also lived together from October of 1980 until May of 1981. After this separation, Mabel moved to an apartment on Hatley Road in Amory where the alleged offense is said to have occurred.

 On July 8, 1981, appellant stopped by Mabel's house between 8:30 and 9:00 p.m. and asked her to ride to Nettleton to purchase some beer. Mabel refused to go to Nettleton, but convinced appellant to accompany her to their previous apartment where a deep freezer had remained since Mabel and appellant had vacated those premises.

 Appellant had been drinking. While returning to Mabel's house with the freezer, an argument erupted which was predicated on Mabel's socializing with other men. Appellant left Mabel's house before 10:00 p.m.

 After leaving Mabel's residence, appellant stopped by Charles Tartt's home and inquired of Tartt if he had a gun he (appellant) could borrow. Tartt, appellant's son-in-law, told appellant he had a gun at his apartment, whereupon the two men left to retrieve the same. While enroute to Tartt's apartment, appellant said he was going to kill Mabel. Upon hearing this, Tartt turned his vehicle around and headed home. On their way back to Tartt's house, appellant exited the vehicle within a block of Mabel's residence.

 At approximately 10:30 or 11:00 p.m. Mabel heard a knock at her front door. Both Mabel and her daughter, Donna, went to the front door but saw no one. They checked the back door also but to no avail. While in the rear portion of the apartment, a second knock was heard. At this point appellant appeared at the front door and pleaded with Mabel

 to let him in. Mabel refused, telling appellant to come back the next day. After Mabel locked the door, appellant broke through the door, grabbed Mabel by the hair and then dragged her onto the front porch. Appellant then stated he was going to cut her head off and throw it in a ditch. Appellant then proceeded to cut Mabel with a pocket knife on the hand, arm, shoulder, neck and head.

 Meanwhile, Donna had run into the bedroom and retrieved a small-caliber pistol. She attempted to shoot appellant as he stabbed Mabel. However, the gun would not discharge and ultimately jammed. Donna told appellant she would kill him if he did not leave Mabel alone. Appellant replied she had better kill him because if she did not, he would get her next. Donna then struck appellant with the pistol and ran. At this moment Mabel was able to break free and run until she fell. When she looked up, appellant was standing over her and stated he was going to finish her off. Some passersby and Donna found Mabel before appellant resumed his attack.

 Mabel was taken to the hospital where she remained for six days. It took approximately two and one-half hours to surgically repair and sew up the lacerations from her knife wounds. She received two blood transfusions and could not be put to sleep due to the extensive amount of blood she had lost.

 Appellant's version of the incident was somewhat different. Appellant asserted he left Mabel's house at approximately 8:00 p.m. after returning with the deep freezer which remained on the truck. With Mabel's permission, appellant was to return later to unload the freezer. Appellant then went to Tartt's house and the two rode to get a six pack of beer. Tartt dropped appellant off in front of Mabel's house around 9:00 or 10:00 p.m.

 As he walked up to Mabel's house, someone fired two shots at appellant from a metal building which caused him to run through Mabel's front door. Someone then hollered, "shoot him," whereupon appellant turned and tried to run back outside. It was at this point, according to appellant, that Mabel got cut. Appellant flagged a policeman down and told him what had happened. Officer Stevenson, who investigated the incident and arrested appellant, denied appellant ever mentioned anything about being shot at.

 The jury returned a verdict of guilty as charged. A sentence of fifteen years was ...

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