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OCTOBER 10, 1984




This is an appeal from the Circuit Court of Prentiss County wherein the jury found the appellant, Jessie Eugene Roberts, guilty of the murder of his wife, Ruby Roberts. Roberts was sentenced to serve a term of life imprisonment in the custody of the Mississippi Department of Corrections. From his conviction and sentence he brings this appeal. We affirm.

At approximately 6:45 p.m. on December 18, 1981, Jessie Eugene Roberts arrived at the home of a neighbor, Roy Maxie. Maxie testified that Roberts asked him for help. He first asked to borrow $20 for some gasoline, then he said" My wife's laying in the floor with her head blowed off. "According to Maxie, Roberts told him that he was in the bathroom when his wife put a shotgun under her chin and killed herself. Maxie directed his son to siphon some gasoline into Roberts' car. Maxie then phoned the Prentiss County Sheriff's Office and handed the phone to Roberts. Roberts reported that his wife had killed herself. Roberts then returned home.

 When Roberts arrived back at his house Tom and Eloise Hendrix were parked there. The Hendrixes had made arrangements to meet the Roberts and play cards that evening. Because the Roberts' car was gone when they arrived the Hendrixes had waited in their car assuming that the Robertses would return shortly. Mrs. Hendrix testified that when Eugene Roberts returned he told her that he had been to the drugstore to get his wife's medicine. Roberts then walked up to the house, opened the door and called for the Hendrixes. He stated:" I didn't mean to do it baby, my baby. "

 Tom Hendrix testified that as he went into the Roberts house with Eugene Roberts, Roberts stated," Oh, Lord, he said he'd do it and he done it. "

 Carl Sartain, a Prentiss County Deputy Sheriff, testified that he and Deputy Bob Glover responded to Roberts call. When they arrived, they found Eugene Roberts lying on a couch in the living room. Mrs. Roberts' body was lying on the floor. Most of her head had been blown away by a shotgun blast. Her hands were found in her jacket pockets.

 There was blood and brains on three walls of the room. An empty shotgun shell was found in front a heater located in the middle of the room. Deputy Sartain testified that the only other sign of a disturbance in the house was a crumpled egg carton and a broken egg found on the floor of the kitchen. A shotgun was found in a bedroom just off the living room.

 Deputies Sartain and Glover took Roberts into custody. They advised him of his rights and he signed a waiver of those rights. Roberts then gave two consistent statements. Although no written statement was introduced into evidence, Officer Sartain testified as to the substance of those statements. He stated that Roberts told him that earlier in the day he and Mrs. Roberts had gone to the drugstore. They left the drugstore about 5:00 p.m. and went to Barbara Joiner's house. They visited with Mrs. Joiner for an indeterminate period of time and then went home. After they arrived home they remembered that they needed something from the grocery store. Roberts then went inside the house and built a fire in the stove in the living room and then left to go to the grocery store. Mrs. Roberts remained at home. When Roberts returned home he found Mrs. Roberts lying in the floor dead. He put the groceries up and then picked up the gun and put it in the bedroom. He then went to Roy Maxie's home and called the Sheriff's office.

 Joann Lollar testified that she and her husband owned a small general store. She was running the store on December 18, 1981. At approximately 5:15 to 5:30 she saw Eugene and Ruby Roberts in her store. They left between 5:30 and 6:00 o'clock. Mrs. Lollar testified that she did not see Eugene Roberts again that day before she closed the store at approximately 6:00 p.m.

 Mary Ings, Mrs. Roberts' sister, testified that Mrs. Roberts once told her that now that she had married into the Roberts family one of the Roberts men would kill her. Mrs. Ings also testified that Eugene Roberts' brother once threatened to have Ruby Roberts sent to jail for bigamy because she had never divorced another man before marrying Eugene Roberts. The brother threatened to blow Ruby Roberts' head off someday. Mrs. Ings also testified that Eugene Roberts had threatened to blow Ruby Roberts' head off on a prior occasion.

 On all of the above detailed testimony, the jury returned a verdict of guilty of murder.


 Roberts' first assignment of error is that the trial court erred in not instructing the jury on the lesser included offense of manslaughter. The defense requested Instruction D-13 which contained the possibility of the jury returning a verdict of guilty of manslaughter. That instruction read:

 If you find that the State has failed to prove any one of the essential elements of the crime of murder beyond a reasonable doubt, and to a moral certainty, and to the exclusion of every other reasonable hypothesis consistent with his innocence, you must find the Defendant not guilty of murder and you will proceed with your deliberations to decide whether the state has proved beyond a reasonable doubt, to a moral certainty and to the exclusion of every other ...

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