BEFORE ROY NOBLE LEE, HAWKINS AND PRATHER
PRATHER, JUSTICE, FOR THE COURT:
This is an appeal from the Circuit Court of Lincoln County. Thomas L. Fuller was found guilty of murder and sentenced to life in the custody of the Mississippi State Department of Corrections.
Fuller appeals assigning as error:
(1) The invalidity of the indictment;
(2) The trial court erred in overruling appellant's motion for a mistrial based upon the excusal of a juror by the bailiff due to a death in the juror's family;
(3) The trial court erred in overruling appellant's motion for a directed verdict of not guilty and in overruling appellant's motion for a new trial based upon the Weathersby rule; and
(4) The trial court erred in admitting certain evidence.
Appellant Thomas L. Fuller shot and killed his wife, Martha Fuller, on July 28, 1983 at their residence in Bogue Chitto, Mississippi. Mrs. Fuller, 40 years of age, was dead on arrival at approximately 4:40 a. m. at the Southwest Medical Center in McComb. The cause of death was fatal injury to the lung and heart from a gunshot wound to the chest.
Appellant and his wife had been married for two years. Residing with the appellant and his wife were three children of the appellant by a previous marriage: Tommy, age 17; Bobby, age 16; and Debbie, age 11. On April 25, 1983, Mrs. Fuller filed for a divorce from the appellant. In early June, Mrs. Fuller's attorney filed a motion to dismiss the bill for divorce at her request. One week before the shooting, Mrs. Fuller called her attorney and requested that he refile the complaint for divorce.
Appellant testified that on July 28, 1983, he arose at 4:00 a. m. Appellant and his sons were preparing to leave for Picayune, Mississippi, where they were doing construction work. After packing the truck, appellant returned to the house to get a coffee thermos and say goodbye to his wife. According to the appellant, his wife asked him to leave his Remington .22 rifle. Appellant returned to the truck, removed the rifle and returned to his wife's bedroom. Appellant testified that, as he was showing his wife how to insert a cartridge into the magazine of the rifle, the gun accidentally discharged. Appellant testified that he cried out "Oh, God, no" and called his son Bobby.
Bobby Fuller, appellant's sixteen year old son, testified that while waiting in the truck he heard his stepmother cry out "No, no" and then heard a shot. Bobby also testified that his father had threatened to kill his wife approximately a week and a half before her death.
Thomas Earl Stevens, twelve year old nephew of appellant, testified that he was waiting in the truck when he heard the appellant cry out "Oh, no." Debbie Fuller, appellant's eleven year old daughter, testified that she awoke on July 28, 1983
to hear her father crying "Oh, no." Debbie admitted giving an earlier statement to the district attorney's office in which she stated that it was Mrs. Fuller whom she heard cry out "Oh no, oh no" . Debbie explained that she changed her story after her father told her it was him who said "Oh, no" .
Mike Allen, firearms expert with the Mississippi Crime Lab, testified that between 50 and 100 attempts were made to cause appellant's rifle to accidentally discharge. According to Allen, the only means by which the rifle was successfully discharged was when a loaded cartridge was in the chamber, the safety was in the "off" position ...