The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1881-06-09
70 De reported
y G.. ~PIVEY,
No. 35SS.

TO be reported.
y G. ~PIvEY,
STATE or Mississippi
/ Appeal from the Circuit Court Of Panola
County, Hon. Samuel Powell, Judge.
Appellant was indicted, tried and convict
ed for the murder of w. W, Bailey auo
sentenced to be hung. The facts are sub
,tantialIy as follows:
Accused aud his wife and two daughter.
and a son lived on the place owned by the
deceased the wife aud daughters worked a
crop on BaiIeys place, while the accused
was a weIl-digger, working about the couu
try.
On the morning Of the 18th ofJune, 1880
the day Of the killing, Spiyey wrote w. w:
Bailey, (the deceased note telling him
"Ifhe did not keep his stock out of his wile's
crop he would fill them with shot"
In reply to this Bailey wrote Meet me
and bring your best shot gun, for l consider
it a ban ter"
At II o'clock of the same day Bailey ac-
companied by his brother-iu-law, Little, and
one Mabry, went to Spiyey'. house and
asked him why he (accused) had not met
him and fought it out like man" An al
tercation followed aud Bailey sent home for
his gun, but the difficulty had subsidized be
fore the gun was brought. Soon after this
Mabry Bailey Little, and Gordon, a negro,
with the gun, went to the field to work
and about suu-set of that day came
out OF the field, and arriving at
the gate, Bailey left his horse with
some one of his companions, and unarmed
proceeded into the gate of Spivey's yard and
a. he entered was fired upon and killed
from room in Spivey's house in which
Spivey and his son John were. There were
three shots fred from the window, and two
from the lane in front-all in quick success
sion Both Of Spiven's arms were broken by
the shots that were fired at him.
On the trial below the notes were excIud-
ed by the court Evidence Of the fact that
Bailey was IAN oyerbearing, turbulent and
impetuous man" wa, also offered in evidence,
but rejected.
The following instructions, among others,
were given al Lht lIl7ttutt VI Ilt uioIl lt- at
tornev.
) Pear or apprehension however sin
cerely entertained by the defendant, that
deceased Bailey designed and intended to
take his life or To do him some great bodily
harm, afforded no excuse or justification
whatever to defendant. He may have had
a lively apprehension that his life was in
imminent danger and sincerely and truly
have believed that the ground of his appre
hension was Just and reasonable, yet if he
acted upon them, and in so doing, killed
Bailey, he did "a ut his peril
). If the jury believe from the whole
evidence that any witness or witnesses for
the defendant wiltully aud knowingly testi-
fed falsely to any material fact IN the case.
the Jury should disregard the testimony OF
sucn witness or witnesses and should dis
believe them altogether As unworthy OF
credit
The following instruction with others, for
defendant was refused
s. eff the jury have a reasonable doubt
from the evidence in the case which Of the
Spiveys, the defendant or John Spivey,
killed the deceased, although they may be
lieve thar one Of them did the killing, they
will acc uit.
On the trial below, the declaration of
John Spivey Immediately after the killing,
as to VINO killed Bailey, was admitted in
evidence.
The record contains no copy of the indict-
meut. In answer to certjorari, the circuit
clerk returned that the indictment was lost
after the trial. No objection was made to
the Indictment in the court below. But on
behaifot appellant it was insisted that the
Supreme Court could not proceed without
a complete record, and, as nc steps had been
taken to supply the indictment the judg-
ment should be reversed.
Pamela county is divided into two court
districts. The ACCUSED was indicted and
convicted in the first district, but the
record shows that the homicide occurred in
second Counsel for appellant in writing
concededed that this was an error, and that
the testimony in fact showed that the kill
ing was in the first district that in prepar-
inc the bill perceptions the district attor-
new had inadvertently written, cd in
place of lst. But it was insisted that the
court had no power to change or correct the
record
CAMPBELL, J.
Hold
The homicide is shown to haze occurred
in the second district OF the county, and
therefore the circuit court of the first dis
trict had no cognizanee of the case. The
judgment must be reversed. The court has
no power 10 correct the record.
y The fact that the record here does not
contain a eopy of the indictment Is no cause
for reversal, as decided on the motion ID
this case at a former day of this term.
8. The testimony that John Spivey in the
presence of the accused, called to his brother,
saving: run here, Pa has killed Capt
Bailey" was properly admitted
4. The note by Bailey to the accused IN
the forenoon Of the day of the killing had
sach relation to the subsequent conduct of
BAILEY. with respect 10 the accused, as TO
male il proper evidence 1t serves TO show
the state of Baiieys feeling and 70 explain
the INQUIRY which be addressed 10 the &C
cused near O'Clock that day about not
meeting him. 1t is because there Is cyl
dence. to be considered by the jury, of hos
tile conduct by Bailey, apparently threaten
ing great personal injury TO the accused at
The time of the killing, that it IS proper to
admit ths written correspondence, which
began the trouble between the parties on
that day. The notes, the quarrel at
O'clock. and the occurrences at suuset I4ay
Justly be regarded rs parts Of whole sue,