BEFORE WALKER, BOWLING AND HAWKINS
WALKER, PRESIDING JUSTICE, FOR THE COURT:
This cause comes as an appeal from the Circuit Court of the First Judicial District of Hinds County, Mississippi. Joseph Berry was indicted and tried for the murder of Jerry Fulton. The jury found Berry guilty of murder, and the trial judge sentenced appellant to a term of life imprisonment in the custody of the State Department of Corrections.
Berry testified that he killed Jerry Fulton in self-defense. He and Fulton had gone away from the other workmen at the building supply company and were shooting
dice. According to Berry's testimony Fulton became angry when he began to lose money to the appellant and threatened to kill the appellant. It was Berry's testimony that when Fulton started coming toward him he was afraid and pulled a gun from the front of his pants and shot at Fulton. Three of four shots hit Fulton. The pathologist who performed the autopsy testified that either of two of the shots could have killed Fulton.
There was no eyewitness testimony other than that of the appellant. The State's principal witness was the pathologist. He testified that two of the shots entered the victim's body on the left - one in the left shoulder and one behind the left ear. The appellant later testified that the decedent was coming straight towards him but turned slightly after the first shot.
The only other witnesses for the state were the police officers who arrived after the shooting was reported.
No weapon was found on the deceased.
Appellant cites four errors on appeal. The first two are as follows:
(1) The court refused to grant appellant a peremptory instruction directing a verdict for appellant; and
(2) The court erred in failing to instruct the jury that since the appellant was the only eyewitness to the homicide that his version of the killing if reasonable must be accepted as true by the jury unless substantially contradicted in material particulars by credible witnesses for the State or by physical facts or by facts of common knowledge.
In both of these arguments appellant relies on the Weathersby rule found in Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933). This Court has repeatedly stated that it is a rare case which meets the requirements of Weathersby. Edge v. State, 393 So. 2d 1337, 1340 (Miss. 1981); Null v. State, 311 So. 2d 654, 657 (Miss. 1975). This is not one of them.
Berry's self-defense claim was based on his constant fear of the deceased. Berry testified that he was afraid of Fulton and had on another occasion had a "run-in" with him. However, he further testified that he had a .38 calibre loaded pistol in his belt when he and Fulton went to a secluded area to gamble. Also, there was testimony that the
two men had eaten lunch together on the day of the shooting. These are hardly the acts of a man claiming to be in constant fear of another. Furthermore, Berry's testimony was that Fulton was facing him when he shot, but the pathologist testified that two shots entered from the victim's left side - one entering three inches behind the left ear. From this, the jury could have found that the deceased was not "coming toward" appellant at all.
The evidence above as to self-defense was not conclusive and at most created a question for the jury. Accordingly, the trial court was correct in refusing appellant's ...