BEFORE PATTERSON, PRATHER AND ROBERTSON
PRATHER, JUSTICE, FOR THE COURT:
This is the third trial in the Newton County Circuit Court of the appellant Elzie Ruffin on a charge of murder of his wife. The first trial in March, 1981, resulted in a
mistrial. The second trial in August, 1981 concluded with a conviction of the defendant and imposition of a life sentence which was reversed by this Court for the improper refusal of a manslaughter instruction. Ruffin v. State, 444 So. 2d 839 (Miss. 1984). This third trial also resulted in a conviction of murder and life sentence.
Elzie Ruffin appeals the present conviction and assigns as error the following:
(1) The trial court committed error in overruling appellant's motion to transcribe the court reporter's notes and by overruling appellant's renewed motion to transcribe the court reporter's notes of the first trial of the appellant which resulted in a mistrial;
(2) The court committed error by not granting appellant's motion for a directed verdict of acquittal at the close of the state's case, by not granting the defendant's motion for a directed verdict at the close of all evidence, by not granting defendant's instruction for a directed verdict and by not granting appellant's motion for a JNOV or in the alternative, a motion for a new trial;
(3) The trial court committed error by overruling defendant's motion that the trial judge recuse himself.
Elzie Ruffin and the deceased, Bobbie Lee Ruffin, had been married approximately 24 years and had eight children whose permanent residence was with Elzie Ruffin. Ruffin had no prior criminal record and had worked nights as a private security guard for several years. Ruffin came home in the early morning hours of September 20, 1980, still in uniform wearing a holster and gun, and discovered the house empty. He went to the home of a male friend of his wife's and found his wife and son and took them home. An argument ensued.
Charles Jackson, a Newton County Deputy Sheriff, lived next door to Elzie Ruffin. On the morning of the incident, the young Ruffin boy came to the door of Charles Jackson, seeking his assistance to silence the argument between Elzie and Bobbie Lee. The deputy sheriff went out and found Elzie to be very mad, walking in circles around Bobbie Lee in an emotionally disturbed condition. Jackson, quoted Ruffin as saying" I'm tired of her f_____ over me. I'm going to kill her. "
Charles Jackson, unarmed, returned to his home to call for
assistance. As Jackson entered his home, he heard a shot. He turned around and saw Bobbie Lee, some four to five feet from Ruffin, falling to the ground hitting her head on a concrete block. Jackson went to the scene where Ruffin voluntarily surrendered his gun and holster and said" I guess I'll go to the pen. "
Ruffin testified that he and his wife were struggling over possession of the gun when it fired.
Bobbie Lee Ruffin died from a gunshot wound over her left eye. No challenge is made here to the cause of death, and therefore, that issue is not before the Court.
Did the trial court err in overruling appellant's motion to transcribe the court reporter's notes of his first trial on March 27, 1981, which ended in a mistrial.
Appellant makes three assertions. He alleges that during the second trial, Charles Jackson admitted that he failed to repeat the exact wording used in the conversation between Elzie and himself shortly before the shooting because he didn't" want to use that [vulgar] word in front of them jurors. "Jackson testified that when he went back to the office," I was told to tell it just exactly like it happened. "Appellant implies that this discrepancy in Jackson's testimony indicates potential prejudice to his client and warrants a production of the mistrial transcript. However, Jackson testified and was cross-examined fully as to his changed testimony in both prior trials.
Appellant further charges that Joe Mowdy, Chief of Police of the City of Newton, had testified in" the mistrial "but did not appear again until the trial presently under appeal. Appellant asserts that since he did not have the benefit of the transcript of the first trial, he was unable to determine if Mowdy was an impeachable witness - even though his ...