BEFORE ROY NOBLE LEE, ROBERTSON and ANDERSON
ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:
Betty Tigner was indicted and tried in the Circuit Court of Tishomingo County for murder, Honorable Thomas Gardner, III, presiding. The jury returned a verdict finding her guilty of manslaughter and the lower court sentenced Tigner to twelve (12) years in custody of the Mississippi Department of Corrections. Tigner has appealed to this Court and assigns nine (9) errors in the trial below.
Billy Akers was shot and killed between 8 and 9 p.m. on March 19, 1982, in the trailer home of appellant. The deceased was fifty-two (52) years of age, approximately 5'9" in height and weighed 145 lbs. During the day, appellant, her son Ronald Tigner, and Akers had been together driving around over the county for Akers to attend to some personal business. They drove across the Alabama and Tennessee state lines on different occasions where they purchased and drank beer, and returned to the Tigner home late in the afternoon. Ron Tigner purchased food for them to eat and then left for a friend's house around 7:30 in the evening. Appellant and Akers remained at the trailer alone.
Ron Tigner owned a .22-caliber pistol, which was usually unloaded, but on this occasion, he had put three or four cartridges in the pistol before leaving the trailer, and, according to appellant, she found the pistol and placed it under a loveseat couch in the living room to prevent anyone
from being injured by it. Appellant also testified that she did not know the pistol was loaded; that about 8 p.m., she went to Akers' room and saw him lying on the bed in his underclothes; that Akers suggested that she come to bed with him, she refused, and Akers got up from the bed, and went into the room where appellant had gone; that he cursed and slapped her across the face, at the same time threatening to kill her; that Akers started back to his room, turned and staggered toward appellant, threatening her; that she pulled the pistol out from under the loveseat in an effort to scare him, pointed the pistol at Akers and shot him in the right side of the head at a distance of approximately two (2) feet; that she put the pistol in a closet, and about 8:45 p.m. started to a neighbor's house for help, when two of Ron's friends pulled up into the driveway; that she told them about the shooting and said, "Billy tried to rape me, and I think I shot him. One of you come in and help me and one of you call an ambulance." The county sheriff was called and arrived at the scene shortly thereafter, where he conducted an investigation of the homicide.
THE LOWER COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A DIRECTED VERDICT AT THE END OF THE STATE'S CASE IN CHIEF.
THE LOWER COURT ERRED IN OVERRULING DEFENDANT'S MOTION FOR DIRECTED VERDICT AT THE CLOSE OF ALL THE EVIDENCE.
The first question raised by Assignment I was waived when the appellant took the witness stand and introduced evidence in her own behalf. We address Assignment II which presents the question of whether or not the lower court erred in refusing to grant a directed verdict of not guilty.
Under this assignment, the appellant relies upon the Weathersby rule stated in Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933), where the Court said:
It has been for some time the established rule in this state that where the defendant or the defendant's witnesses are the only eye witnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by the credible witness or witnesses for the state, or by the physical facts, or by the facts of common knowledge. [Citations omitted].
The Weathersby rule often has been cited, argued and relied upon by persons convicted of crime under circumstances where they and the victims were the only persons present, with no eyewitnesses to the alleged crime. It has been relied upon also where other witnesses are present whose testimony is not in conflict with that of the accused. If there is conflict or contradiction in material particulars between the evidence offered by the accused and the physical facts and inferences supporting the State's theory of the case, the Weathersby rule will not apply. Lewis v. State, 454 So.2d 1306 (Miss. 1984); Sartain v. State, 311 So. 2d 343 (Miss. 1975); Null v. State, 311 So.2d 654 (Miss. 1975). Although the Weathersby rule has been presented to this Court numbers of times, rarely do the cases meet the requirements of that rule. Berry v. State, 455 So.2d 774 (Miss. 1984); Hancock v. State, 299 So. 2d 188 (Miss. 1974); and Murphy v. State, 232 Miss. 424, 99 So. 2d 595 (1958).
The record reflects the following conflicts and contradictory statements in the testimony of the appellant:
(1) Appellant stated to officers who arrived at the scene that Billy Akers had tried to rape her and that she had shot him.
(2) She stated to Frankie Rice and Glenda Lovelace, the first persons she saw after the shooting, that Akers had tried to rape her ...