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NOVEMBER 07, 1984





Navis Jane May shot and killed her husband on February 27, 1982. In due course she was indicted for murder. On October 18, 1982, the case was called for trial in the Circuit Court of Rankin County, Mississippi, at the conclusion of which the jury found May guilty of the lesser-included offense of manslaughter, Miss. Code Ann. 97-3-31 (1972). The Circuit Court has sentenced May to a term of eight years.

 From this conviction and sentence, May appeals. She presents a history of abuse and mistreatment by her husband and argues that, as a matter of law, her actions were taken in necessary self-defense and thus constitute justifiable homicide.

 May's case evokes sympathy. We have studied it carefully, beyond the errors formally assigned. For the reasons below, we affirm.


 John D. and Navis Jane May were married in October of 1960. At the time of the incident in question, John was 70 years old. Navis was 52 and an arthritic. They had lived in a trailer home on Williams Road in Florence, Mississippi for most of the past five years.

 On Saturday evening, February 27, 1982, Navis Jane May shot and killed her husband at their home. Of that there is no dispute. The circumstances under which the killing occurred, however, were hotly disputed at trial.

 Navis' described a battering husband who had threatened to kill her in the past and had repeated those threats on the night in question; a man who had been drinking that evening and who frequently drank a fifth of whiskey a day; an account of a struggle, a chase, more threats, a fear of being severely beaten with a walking stick, and a shooting after warning shots had failed to stop her angry husband's advance.

 The evidence offered by Rankin County Deputy Sheriff

 Ernest Burnham, however, revealed a different scene. Deputy Burnham testified that he received a call at the Sheriff's Office at approximately 8:00 p.m., February 27, 1982. The caller identified herself as Mrs. J. D. May and said" I've just killed my husband ". Deputy Burnham and Officer Kenneth Dickerson promptly went to the May residence where they found John D. May lying on the patio in front of the home. May was dead.

 Navis May told Deputy Burnham conflicting versions of what had happened. First she described a struggle and said that she had accidently shot Mr. May.

 Subsequently, Navis May told Deputy Burnham that there had been an argument and a scuffle inside after which John May said he was" gonna get away from there ". She told him not to leave and then she went back into the house and got the gun, came back out and shortly thereafter the shooting occurred.

 At trial Navis Jane May described the sequence of events in considerable detail. Suffice it to say that her trial testimony strongly suggests that she acted in self-defense. That version would have had her firing the shot from behind a deep freeze as her angry drunken husband approached. Deputy Burnham, who had carefully examined the scene of the killing, explained that had Navis May been standing there, she would have been in a muddy area, for it had been raining all day. Deputy Burnham testified that there were no footprints at the end of the patio by the deep freeze. Deputy Burnham also explained that the angle at which the fatal bullet entered John D. May strongly suggested that Navis Jane May could not have fired the fatal shot from the position she contended. Finally, Deputy Burnham testified that when he arrived at the May home Navis Jane May appeared intoxicated.

 At trial Navis Jane May testified that John D. May was advancing upon her with a walking stick. No walking stick was found in the hands of the victim, but Navis explained that she had pulled the stick and, because of her arthritis, used it to walk to a gate which had to be opened for the officers to enter. Officer Kenneth Dickerson testified that when he and Burnham arrived they found a pair of bedroom slippers clutched in the two hands of the victim, suggesting, of course, that he could not have also had in his hands a walking stick.



 Navis Jane May's first assignment of error - one which is

 argued with substantially more vigor than the others - is

 " The verdict of the jury is contrary to the overwhelming weight of the evidence and the Court erred in failing to direct a verdict of not guilty at the conclusion of all the testimony in the case. "

 Fairly encompassed in this assignment of error is an appeal from the trial court's denial of May's request for a peremptory instruction at the conclusion of all of the evidence as well as the trial court's denial of her alternative post-trial motions for judgment of acquittal notwithstanding the verdict (j.n.o.v.) or for a new trial. These motions are separate and distinct and perform different offices within our criminal procedural system, although as in the appeal May presents the distinction is frequently blurred.

 The motion for judgment of acquittal notwithstanding the verdict tests the legal sufficiency of the evidence supporting the verdict of guilty. It is in effect a renewal of the defendant's request for a peremptory instruction made at the close of all the evidence. It asks the court to hold, as a matter of law, that the verdict may not stand and that the defendant must be finally discharged.

 Where a defendant has moved for j.n.o.v., the trial court must consider all of the evidence - not just the evidence which supports the State's case - in the light most favorable to the State. The State must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Glass v. State, 278 So. 2d 384, 386 (Miss. 1973). If the facts and inferences so considered point in favor of the defendant with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, granting the motion is required. On the other hand, if there is substantial evidence opposed to the motion is, that evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions - the motion should be denied.

 In other words, once the jury has returned a verdict of guilty in a criminal case, we are not at liberty to direct that the defendant be discharged short of a conclusion on our part that given the evidence, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could find beyond a reasonable doubt ...

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