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Birge v. State

Court of Appeals of Mississippi

April 18, 2017

L.M. BIRGE, APPELLANT,
v.
STATE OF MISSISSIPPI, APPELLEE

          DATE OF JUDGMENT: 05/07/2015.

         BOLIVAR COUNTY CIRCUIT COURT, HON. CHARLES E. WEBSTER, TRIAL JUDGE

          SECOND JUDICIAL DISTRICT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES

          BENJAMIN ALLEN SUBER ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART, JASON L. DAVIS

          DISTRICT ATTORNEY: BRENDA FAY MITCHELL.

          BEFORE GRIFFIS, P.J., FAIR AND WILSON, JJ.

          GRIFFIS, P.J.

         ¶1. L.M. Birge was indicted on the charge of first-degree murder in the death of Callie Ware. Birge was ultimately convicted of manslaughter and sentenced to fifteen years in the custody of the Mississippi Department of Corrections, with ten years to serve and five suspended. On appeal, Birge argues an insufficiency of the evidence since the State of Mississippi failed to prove that he did not act in necessary self-defense. We find no error and affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On August 27, 2013, Callie and her sister, Tikea, were at Callie's residence. Birge's daughter, Rose, came by to talk to Callie. A fight broke out between Callie and Rose inside the residence. The fight eventually moved to the street. Although the versions of events differ, it is undisputed that Birge shot Callie in the chest with a shotgun, and Callie died from her injuries.

         ¶3. Birge was indicted on the charge of first-degree murder. At trial, Birge testified in his own defense. Birge testified that when he learned of the fight, he went to Callie's residence to check on his daughter. When Birge arrived at Callie's residence, a girl came out with a gun.[1] As a result, Birge left and went to his house to get a gun.

         ¶4. When Birge returned to Callie's residence, he was unable to find anyone in or near the residence. He went around to the back of the residence and noticed that the fight between Callie and Rose had moved to the street. Birge stated he saw Callie pulling his daughter's hair and yelled for them to stop. Birge further stated he heard someone say, "She gonna beat her . . . . Nobody going to stop it." Birge then testified as follows:

And I got my gun, I went on out in the street. I struck [Callie], trying to break up the fight. I struck [Callie] across the back with the gun, tried to break up the fight. [Callie's mother, Santonia, ] ran up behind me and caught me and we started tussling because she seen I had hit her daughter with the gun. She tried to take it from me. She tried to take it. We started tussling with the gun and the gunshot.

         ¶5. Santonia testified that she and her husband, Oliver, went to Callie's residence when they learned of the fight. When they arrived, Santonia got out of the car and saw a fight in the street. Santonia stated that although there were quite a few people around, the ...


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