The comet. [volume] (Jackson, Miss.) 1877-1882, 1881-06-04
n. q. SPIyEY
VS..
STATE OF MISS.

Appeal from the Circuit Court of Pamela
county, Hon. Sam. Powell, Judge.
Appellant was indicted tried and con-
victed for the murder Of w. w. Bailey
and sentenced to be hung. The facts are
briefly
Accused and his wife and two daughters
and son lived on the place owned By the
deceased; the wife and daughters worked
a crop on Bailey's place, while the accused
was well-digger, seeking odd jobs yhout
the country.
On the morning of the 18th of June, 1880.
the same being the day Of the killing,
spiyey (accusedD wrote to W. w. Bailey,
(the deceased), a note telling him "If he
did not keep his stock out of his wife's
crop he would ill them with shot from end
TO end"
In reply to this Bailey wrote: "NIeet me
and bring your best shot gun, for con-
slider il a banter"
AT 10 O'Clock Of the same day Bailey ac-
companied by his brothcr-in-law, Little,
and by one Mabry, went to Spiveys' house
and asked him "why he (accused) had not
met him and fought it out like a man," an
alteration followed and Bailey sent home
for his gun, but the difficulty had subsidized
before the gun was at hand. Soon after
this Mabry,' Bailey and Little with the gun,
went to the field to work and about sunset
Of that day came out of the field and arriy-
ing at the gate, Bailey left his horse with
some one Of his companions and unarmed
proceeded into the gate of Spiyey's house
and as he entered, was fired upon and kill
ed from a room in spivey's house in which
Spiyey and has son John were. On the
trial below these notes were excluded by
the Court. Evidence Of the fact that Bailey
was ga turbulent and impetuous man" was
also offered In evidence, but rejected.
The following instructions among others
were given at the instance of the District
Attorney.
9th. "Fear or apprehension, however
sincerely entertained by the defendant,
that deceased Bailey designed and intend
ed TO take his life or to do him some great
bodily harm, affords no excuse or justifca-
ton whatever to defendant. He may have
had lively apprehension that his life was
in imminent danger and sincerely and
truly have believed that the ground of his
apprehension was just and reasonable, yet
ifhe acted upon them, and i'm SO doing. kill
ed Bailey, he did so at his own peril"
10. "If the jury believe from the whole
evidence that any witness or witnesses for
the defendant wilfully and knowingly testi-
fed falsely to any material fact in the case.
the jury should disregard the testimony Of
such witness or witnesses, and should dis
believe them altogether as unworthy Of
credit"
The following instruction, among others,
was refused by the defendant:
s. "If the jury have reasonable doubt
from the evidence in the case which of the
Spivey's, the defendant or John spivey
killed the deceased, although they may be-
lieye that one Of them did the killing they
win acquit."
On the trial below, the declaration Of
John spivey Immediately after the killing,
as to who killed Bailey was admitted in
evidence.
IL was urged by counsel for appellant
that as the record here contains no copy Of
the Indictment and in return to cerfisrari
the indictment has been lost pending APP |
peal. consequently the court must re-
verse.
The bin Of exceptions shows that the
killing was in the Ind district Of the coun-
ty and the record shows that he was tried |
in the first district Of the county,.
L. Brame and jenkins 4 shotwen and ID. |
W. Meter for appellant.
T. c. Catchings for appellee.
cAnrBkLIsJ J.,
HID
1. Because the homicide IL shown 70 have
occurred In the second court district 81
Pamela county, and therefore the Circuit
Court Of the first. district did mot have /
coEnizznce Of the.c&se, the Judgment viii
be reversed. but with . view 70 another
trizl, IL is proper 10 pass on the other ques-
tons presented by fhe record.
2. The met that the record here does not