
    Henry Louis GANDY v. STATE of Mississippi.
    No. 47322.
    Supreme Court of Mississippi.
    May 7, 1973.
    J. H. Richmond, Jr., Starkville, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   SMITH, Justice:

Henry Louis Gandy was indicted for assault and battery with intent to murder, tried in the Circuit Court of Oktibbeha County on that charge, convicted and sentenced to seven years imprisonment. He has appealed here, assigning as ground for reversal that the verdict of the jury was against the weight of the evidence.

The question was properly raised by motion for a new trial and the trial court’s action in denying the motion is before us for review.

A careful reading of the record reveals that, in the incident which gave rise to the charge, Gandy armed himself with an ax and severely cut his adversary in the head with it. The evidence offered on behalf of Gandy, if it had been accepted by the jury, would have been sufficient to support his contention that he had acted in necessary self-defense. However, the testimony of a number of other persons, who were eyewitnesses and who testified for the prosecution, was to the contrary. The substance of the testimony of these latter witnesses was that, at the time Gandy armed himself with the ax and struck the blow, he was in neither real nor apparent danger of suffering death or great bodily harm. In other words, the testimony of the witnesses was in direct conflict and made a fact issue for resolution by the jury as to whether Gandy, in striking his adversary with an ax, had acted in necessary self-defense, real or apparent or had not. The jury, as trier of facts, found against Gandy on this issue, and its verdict cannot, on the record, be said to have been against the weight of the evidence. Under such circumstances the judgment appealed from must be affirmed. McLelland v. State, 204 So.2d 158 (Miss.1967).

Affirmed.

RODGERS, P. J., and ROBERTSON, SUGG and WALKER, JJ., concur.  