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ALBERT LYNN (LYN) SMITH v. STATE OF MISSISSIPPI

AUGUST 03, 1988

ALBERT LYNN (LYN) SMITH
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, ROBERTSON and ANDERSON

ROY NOBLE LEE, CHIEF JUSTICE, FOR THE COURT:

Albert Lynn (Lyn) Smith was indicted and tried in the Circuit Court of DeSoto County for the murder of Georgia Smith, his wife. The jury found Smith guilty of manslaughter and he was sentenced by the court to a term of eighteen (18) years in the custody of the Mississippi Department of Corrections. He has appealed to this Court and assigns six (6) errors in the trial below.

I.

 THE LOWER COURT ERRED IN FAILING TO SUSTAIN THE MOTION FOR DIRECTED VERDICT AND REQUEST FOR PEREMPTORY INSTRUCTION MADE BY DEFENDANT AT THE CONCLUSION OF ALL THE EVIDENCE BASED ON THE WEATHERSBY RULE.

 Around 4:30 a.m. on August 19, 1984, the sheriff of DeSoto County was notified that an ambulance had been dispatched to a grocery store in a rural part of the county, and that there had been a shooting. When the sheriff, deputies and ambulance arrived at the grocery store, they

 found appellant waiting. The following conversation took place:

 Sheriff: What happened?

 Appellant: I shot my wife.

 Sheriff: How bad?

 Appellant: Pretty bad.

 Appellant led the officers and the ambulance to his house. They found the appellant's wife, Georgia, dead in the bedroom. She was nude, in bed with the covers pulled up to her neck, and she had been shot in the face with a .44-caliber revolver, which was found on the floor in the bedroom closet. There were four live cartridges and one spent cartridge in the revolver. Blood was found on the door frame leading into the bathroom; there was blood on the bathroom light switch, and a towel with some blood on it was found in the bathroom sink. The officers also observed blood on appellant's forearm.

 At trial, a crime lab technician testified that a blood sample taken from appellant at 8:00 a.m. tested positively for .09% alcoholic content; that, at the rate of alcohol dissipation, appellant's blood alcohol would have been .12% at the time of the shooting four hours earlier; and that the percentage of alcohol in his blood meant that appellant was legally intoxicated at the time of the homicide.

 According to an FBI crime lab technician, appellant's hands tested negative for the presence of gunpowder, and the victim's hands tested positive. The record indicates that after the shooting, appellant washed his hands. The tests meant that the victim was shot at close range.

 A bar maid testified that a week before the shooting she saw appellant in the bar where she worked and overheard him say to another person, "I will kill her. She will not take what I got."

 The victim was employed as a bank teller, and, according to three of her co-workers, appellant and his wife had been having difficulties, the victim was unhappy, and the appellant had a violent temper. The victim's mother testified that the marriage was an unhappy one; that appellant had a violent temper; and that she had witnessed arguments and altercations between appellant and the victim.

 Appellant's defense was to the effect that he came home about 4 a.m.; his wife began fussing at him; he went to the bathroom and, upon returning to the bedroom, he found his wife sitting up in bed with a pistol pointed at him; she said, "I'm going to put an end to this once and for all;" that he grabbed for the gun, fell on top of his wife, and while they were struggling over the gun, it fired accidentally.

 We have said before and now repeat that it is a rare case that meets the requirements of the rule in Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933). Berry v. State, 455 So. 2d 774, 776 (Miss. 1984). The Weathersby question is not only whether the evidence conflicts, but also whether the evidence is contrary to the physical facts, and what reasonable conclusions may be drawn from the uncontradicted evidence. Burge v. State, 472 So. 2d 392, 396 (Miss. 1985).

 In the case sub judice, appellant was the only eye witness to the homicide and he claims that the victim was accidentally shot and killed. We think that the appellant's account of what happened is substantially contradicted in the following particulars:

 (1) The photographs of the scene showed no signs of the struggle which appellant described in his testimony.

 (2) Appellant's account of how the victim was holding the gun showed that it would have been mechanically impossible to fire it.

 (3) There was conflicting testimony regarding the appellant's marriage and his reputation for peace or violence.

 (4) The evidence adduced at trial indicated that appellant's mental faculties at the time of the shooting may have been adversely affected by alcohol and/or drugs. Expert testimony indicated alcohol and codeine were found in appellant's urine and/or blood indicating he was intoxicated at the time of the shooting.

 (5) When the sheriff first saw appellant at the grocery store, appellant said, "I shot my wife. . . . pretty bad."

 We are of the opinion that the facts constituted a guilt issue for the jury to determine and that the verdict of the jury is supported by the evidence.

 Assigned Error I is ...


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