BEFORE HAWKINS, P.J., PRATHER AND ANDERSON, JJ.
HAWKINS, PRESIDING JUSTICE, FOR THE COURT:
Willie O'Bryant appeals his conviction in the circuit court of Leflore County of the murder of his wife Mrs. Josie O'Bryant and sentence to life imprisonment.
The first issue we address on this appeal is whether O'Bryant was entitled to an instruction authorizing the jury
to acquit him if they believed the death of his wife was accidental. Because O'Bryant was engaged in an unlawful act at the time his wife was shot, such instruction was properly refused.
The other issue, which we also find to be without merit, is whether the verdict of the jury was against the overwhelming weight of the evidence. Accordingly, we affirm.
O'Bryant and Mrs. O'Bryant had been married 24 years. Five sons, ranging in age from 12 to 23, had been born of their marriage. O'Bryant was employed as a rig superintendent on an oil drilling barge working inland, working seven days and off seven days. In July and August, 1985, he had been laid off from work.
On Sunday, August 11, 1985, he and Mrs. O'Bryant had been separated two months, and he had attempted to talk to her by telephone to get her to come home. He said he "loved her deeply." He had also enlisted the help of acquaintances to get her to return. Nina Fillyaw, Mrs. O'Bryant's best friend, testified that O'Bryant called her repeatedly trying to locate or communicate with his wife. Nina testified that O'Bryant once said he would kill Mrs. O'Bryant if he caught her with another man. In subsequent phone conversations, O'Bryant assured Nina he would not harm Mrs. O'Bryant.
Mrs. O'Bryant had been staying with different friends. On Friday, August 9, the friend Mrs. O'Bryant was staying with left town. On Saturday, the air conditioning in the house ceased to function. Mrs. O'Bryant had to find another place to stay and went to Rick Milam's apartment.
Rick Milam testified that when O'Bryant and the O'Bryant's youngest son, Jason (J. J.), parked by the apartment building the evening of August 11 and J. J. knocked on the door twice asking for his mother, Mrs. O'Bryant hid in the back of the apartment. Rick answered the door both times and told J. J. that his mother was not at the apartment. O'Bryant got the same response when he went up and knocked on the apartment door.
At 10:05 p.m. on August 11, the Greenwood Police Department received and recorded a phone call from Josie O'Bryant. The tape recorded Josie stating her location at a third floor apartment on East Washington Street and saying, "Someone is trying to break in here." The log of radio calls reflected that the police department broadcast a call at
10:07 p.m. directing patrolmen to respond to Mrs. O'Bryant's call for help. Lieutenant Vernon Hemphill was already near Mrs. O'Bryant's location; the log reflects that he arrived at 10:09.
O'Bryant spotted the police car coming down the street as he and his youngest son, Jason (J. J.) O'Bryant, were getting in the car to drive the two blocks to the police department to get help. O'Bryant got out of his car and went up to the patrol car.
Hemphill, the first patrolman to arrive, observed a white male in front of the apartment building. Hemphill got out of his car. The man walked toward Hemphill and said calmly: "Officer, you might as well arrest me." Hemphill asked, "For what?" He replied, "I just shot my wife." O'Bryant showed Hemphill where Josie's body was and Hemphill radioed for an ambulance and the coroner. He asked O'Bryant the location of the gun was and O'Bryant took Hemphill to his car and got the gun from under the seat.
Three other policemen responded to the radio call. George Lee, Charlie Barr and Lewis Grones testified that the back door to Milam's apartment appeared to have been forced open. Their descriptions of the door knob were that the lock was pulled away from the door facing, the framing around the knob was loose and crooked, the plate around the handle was loose, and wood was splintered and "busted away from around the lock." One officer said the door would lock if slammed shut. Two others said they could not tell when the door had been forced open and did not know if the casing or knob was loose before August 11.
On the second floor landing in front of an apartment door, one policeman found a chip from the butt of a pistol that fit O'Bryant's Ruger pistol grip. Another officer found a wood chip from a pistol butt on the middle landing between the first and second floors. This chip fit the pistol grip on the other side of the Ruger. When Officer Hemphill took the gun from O'Bryant, he noticed that the handles were very loose.
O'Bryant testified that he was carrying the new model Ruger .357 Magnum single-action revolver with his finger on the trigger, but said, "I never, during any occasion, cocked the hammer." An arms expert said two things were required for the gun to fire: the hammer had to be pushed back and released while the trigger was being squeezed at the same time.
Pathologist Kenneth Collins testified from his autopsy on the body of Mrs. O'Bryant that the cause of death was a gunshot wound to the head. He testified that the bullet entered under the chin and exited three inches above the right ear, penetrating the soft tissues of the floor of the mouth, the tongue and the roof of the mouth and entering the base of the skull causing extensive fractures of the skull and injury to the right side of the brain. Death was instantaneous. He also said that the absence of powder burns indicated that the gun was some distance away when fired, probably more than two feet. The pathologist noticed Mrs. O'Bryant's left arm bore a severe abrasion from a blunt injury that tore the skin, and another abrasion was on her left wrist.
According to O'Bryant, Mrs. O'Bryant telephoned him about four o'clock that Sunday afternoon. He pleaded with her to return home, telling her he was to go back to work the following Thursday. He said that she finally agreed to come home and stay with the children while he was at work.
Around 7:30 that evening he took their youngest son, J. J., with him looking for Mrs. O'Bryant. As they drove by Rick Milam's apartment, J. J. told O'Bryant he thought he saw his mother through a window. O'Bryant stopped and saw Mrs. O'Bryant through a kitchen window, standing next to the sink. O'Bryant drove down the street, turned around and came back and parked. At this time he also saw Milam in the apartment. J. J. went up to the apartment and returned in a few minutes. J. J. then went back to the apartment and again returned. O'Bryant then went to the apartment himself, and knocked on the door. Milam opened the door and O'Bryant told him he wanted to speak to his wife. Milam replied that Mrs. O'Bryant was not there, that he had not seen her for two or three days, and did not know where she was.
O'Bryant left, drove around the block two or three times, and returned to the apartment. He said he sat there for about ten minutes, and saw Milam in the apartment. About two minutes later Milam and a man named Ashmore came out the front door, and he saw "Josie kind of stoop over and shut the door behind them."
O'Bryant then told Milam that he wanted to "talk with Josie," and asked Milam to take him up to the apartment and show him she was not there. Milam refused to do so. When Milam left, J. J. went back to the apartment and O'Bryant, in his car, followed Milam and Ashmore as they drove away.
O'Bryant ceased following them and went by his house to get his gun. He returned to the apartment. O'Bryant ...