BEFORE HAWKINS, P.J.; PRATHER & SULLIVAN, JJ.
SULLIVAN, JUSTICE, FOR THE COURT:
STANLEY DOYLE WEEKS was indicted for the murder of Robert Ed Maxwell. Weeks was tried in the Circuit Court of Sunflower County, Mississippi, convicted of manslaughter and sentenced to fifteen (15) years, with five (5) years suspended.
He assigns nine errors on this appeal, all of which lack merit, and we therefore affirm his conviction and sentence.
At the end of 1983 on New Year's night Stanley Doyle Weeks was on patrol in the Town of Boyle, Bolivar County, Mississippi. Weeks, the son of Boyle's Police Chief, did weekend patrol at night for free. On this particular night he was accompanied by one M. L. Trotter, an employee of Weeks' father but not a police officer.
At about 2:30 a.m. Robert Ed Maxwell ran a stop sign in the Town of Boyle and Weeks set out in pursuit. A high
speed chase ensued that took the parties out of Bolivar County into Sunflower County. Ultimately Maxwell drove his automobile into a field where the car stopped. Weeks with his gun in his right hand approached the vehicle and told Maxwell he was under arrest. According to Weeks, Maxwell then exited the car screaming and he jumped on Weeks. Weeks fell over backward with Maxwell on top of him. When they it the ground the gun fired and Maxwell was killed by a ingle gunshot into his head. Weeks crawled out from under he body of Maxwell and left it face down on the ground. Weeks testified that he did not intend to kill Maxwell and claimed that the shooting was accidental.
Dr. Rodrigo Galvez performed the autopsy on the body of Maxwell. Galvez found the gunshot wound to be the cause of death and he testified that the trajectory of the bullet was from the top back left side of the head down toward the front and right side of the head. The bullet entered Maxwell's head approximately three inches above and approximately one inch behind his left ear.
Maxwell's body was found face down 20 to 25 feet away from his automobile.
In the opinion of Dr. Galvez the gun was touching Maxwell's head when it was fired. Galvez further was of the opinion that Maxwell was lying prone on the ground with the left side of his face up and the right side of his face touching the ground when the bullet was fired. This opinion was based upon the trajectory of the bullet, the recoil wound to the right eye, and the marks on the right side of Maxwell's face and neck.
On cross-examination Galvez said that if the shooting happened as claimed by the defense witnesses that that could account for certain injuries to Maxwell's hands but that it was impossible to account for the recoil wound to Maxwell's right eye under the defense theory. Galvez thought this was true because had the two bodies been in the position described by Weeks it would have been impossible for the shot to have been fired in the manner that it was because of the nature of the human wrist.
A firearms expert testified that the pistol used by Weeks was functionally reliable, including the safety feature, and that the trigger must be held fully to the rear of the rear of the trigger guard during the entire arch of the hammer before it would fire.
WAS IT ERROR NOT TO GRANT WEEKS A DIRECTED VERDICT AT THE CLOSE OF THE STATE'S CASE AND AGAIN AT THE END OF THE ENTIRE CASE?
When Weeks presented evidence in his own behalf he waived his own objection to the denial of the motion for a directed verdict at the end of the State's case. Ruffin v. State, 481 So. 2d 312, 316 (Miss. 1985).
This is then in essence an appeal from the denial of judgment of acquittal. The standard for determining whether a directed verdict or a peremptory instruction of not guilty should be granted at the conclusion of the entire case is as follows:
Where a defendant has requested a peremptory instruction in a criminal case or after conviction moved for a judgment of acquittal notwithstanding the verdict, the trial judge must consider all of the evidence - not just the evidence which supports the States case. . . . The evidence which supports the case of the State must be taken as true. . . . The State must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. . . . 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 peremptory instruction or judgment n.o.v. is required. On the other hand, if there is substantial evidence opposed to the request or motion - that is, 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 request or motion should be denied. (Emphasis added.)
When we apply the above test and accept the testimony of Dr. Galvez as true, and consider all of the favorable inferences which could be reasonably drawn from that testimony then reasonable fair minded men could reach different conclusions; therefore, the issue was one for the jury and there is no merit to this assignment.
WAS WEEKS ENTITLED TO A DIRECTED VERDICT AT THE CLOSE OF THE CASE ON THE BASIS OF THE WEATHERSBY RULE?
The Weathersby rule is as follows:
Where the defendant or the defendant's witnesses are the only eyewitness to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by facts of common knowledge. Weathersby v. State, 165 Miss. 207, 209, 147 So. 481, 482 (1933).
Ruffin v. State, 481 So. 2d 312, 316.
Because the testimony of Dr. Galvez substantially contradicts the testimony of both Weeks and Trotter, the Weathersby rule does not apply to the facts of this case and this assignment of error is without merit.
WAS IT ERROR NOT TO GRANT WEEKS A NEW TRIAL BECAUSE THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE OR CONTRARY TO THE ...