BEFORE ROY NOBLE LEE, DAN LEE AND PRATHER
DAN LEE, JUSTICE, FOR THE COURT:
This is an appeal from the Circuit Court of Pike County wherein the appellant, Ernest Randolph Nobles, was found guilty of the aggravated assault of Bill Bates. Nobles was sentenced to serve a term of ten years in the custody of the Mississippi Department of Corrections. From his conviction and sentence he brings this appeal and assigns as error the trial court's refusal to grant Instruction D-6 and his assertion that the verdict of the jury was against the overwhelming weight of the evidence.
Bill Bates, the victim, testified that he had known Nobles for three to four years. They met through Nobles' niece with whom Bates has had a child. Bates testified that on Monday, May 9, 1983, he saw Nobles at a gas station so he pulled in to say hello. Bates stated that he had seen Nobles on the Friday before and that they had had a disagreement on that night. The disagreement stemmed from Nobles telling Bates that he would be at a particular location and then failing to show.
Bates testified that when he arrived at the gas station Nobles started complaining to him about Bates' actions on Friday night. Bates stated that Nobles and he began exchanging curses. Nobles then threatened to cut Bates' throat in retaliation for their Friday night disagreement. Nobles took a knife out of his pocket and opened the blade. Bates testified that when he saw Nobles' knife he feared for his own safety and for that of his two year old son whom he had with him. Bates testified that he told Nobles he was leaving and did not have time to argue. Bates put the child in the car from the driver's side and then felt something running down his face. He looked up and saw Nobles backing away from him with the open knife. Bates then noticed blood running from his face. Bates testified that at that point Nobles threatened to kill him.
After being cut, Bates ran across the street and was given a ride to the hospital. Bates' brother arrived on the scene moments later and took Bates' child home. Bates testified that throughout the incident he was unarmed. He further denied that he was reaching for a weapon at the time he was cut.
Dr. Will K. Austin, an emergency room physician at the Southwest Mississippi Regional Medical Center, testified
that when Bates arrived at the hospital he had a severe laceration on his left cheek. The cut extended from Bates' face all the way to the back of his head, completely through the left ear and down to the skull. Bates had major arterial bleeding from several places. Dr. Austin testified that Bates had lost a lot of blood and if the blood loss had continued much longer the situation would have been life threatening. The wound required several hundred stitches to close.
Following Dr. Austin's testimony the state rested.
Darrel Nobles, the defendant's first cousin, was the first witness to testify for the defense. Darrel worked at the service station where the incident occurred. He testified that Nobles was at the gas station when Bates arrived with his son. Bates took the child out of the car and began arguing with Nobles about something that had occurred a few days prior. Bates and Nobles cursed each other and Darrel told them both to leave because their arguing was bad for business. According to Darrel, Bates then put the child in the car and began to feel down the side of his car seat either in the front or the back. As he was doing this, Nobles cut him.
The defendant, Ernest Randolph Nobles, testified in his own defense. Nobles stated that he had seen Bates on the Friday before the incident at the home of his brother-in-law, James Carter. Nobles admitted that he had lied to Bates and told him that he would be at a local cafe but had instead gone to James Carter's house. Nobles stated that Bates came by Carter's house that night cursing and threatening him. According to Nobles, Bates threatened to whip him because he had lied concerning his intended whereabouts.
Nobles testified that on the day of the cutting incident he was at the gas station when Bates arrived. Nobles then "tried to explain I didn't appreciate his (Bates) threats on Friday." The two of them exchanged curses. Nobles testified that Bates then put the child in the car and started to reach for something. Nobles denied that he had drawn his knife before Bates "started reaching" but added "He came up pretty fast so I cut him."
Nobles testified that he thought if he did not use his knife immediately Bates would hurt him. Nobles admitted that he never saw a weapon on Bates and further admitted that he was mistaken when he cut Bates.
James Carter, Nobles' brother-in-law, testified that he was with Nobles at the time of the incident. Carter stated that as they were at the gas station, Bates drove up and Nobles told Bates that Bates had done him wrong. They began exchanging curses. Bates then put the child in the car and "went up under the seat." Bates then "came up real fast" and at that point Nobles cut him. Carter testified that Bates has a ...