
    21343.
    McELROY v. THE STATE.
    Submitted September 11, 1961
    Decided October 5, 1961.
    
      G. A. Jones, J. T. Mahan, for plaintiff in error.
    
      Ben F. Carr, Solicitor-General, Jack G. Tarpley, Eugene Cook, Attorney-General, Rubye G. Jackson, Assistant Attorney-General, contra.
   Candler^ Justice.

Felix McElroy was indicted in Union County for the murder of his wife, Mrs. Esto McElroy. He was convicted of that offense without any recommendation for mercy and was sentenced to be electrocuted. He timely moved for a new trial, basing his motion therefor on the usual general grounds only. His motion was overruled and he excepted to that judgment. Held:

Since the verdict is amply supported by evidence and has the approval of the trial judge, there is no merit in the contention that the judgment refusing him a new trial is erroneous as here contended.

Judgment affirmed.

All the Justices concur.

On the trial of this case the evidence was in substance as follows. Lincoln Wilson, as a witness for the State, testified: He was the father of the deceased. The accused shot and killed her at his home on March 13, 1961, at about 6 a.m. His daughter and the accused had separated about a week before the killing. On the morning of the killing the accused came to his home while his daughter was preparing breakfast. He cut the screen of the front door and tried to open the wooden door. He then went around to the back of the house with a shotgun in his hand. The deceased and Tommy Wilson, his son, came to the door and begged him to leave. The accused raised his gun and he told him not to do that. The accused then backed a short distance away with the gun in his hand and' had a bottle of whisky in his right coat pocket. He took the whisky out of the accused’s pocket and set it on a table in the yard. His daughter walked out into the yard and the accused immediately shot her and then put the gun under his chin and shot himself. He then took the gun away from the accused and also took two big hunting knives off him. The accused was “pretty” highly intoxicated at the time of the killing. The killing occurred in Union County.

Tommy Wilson, a witness for the State, testified: He was a brother of the deceased, Esto McElroy. When he and his sister walked out in the yard, the accused shot her in the face and killed her. The accused then shot himself. He smelled whisky on the breath of the accused. The deceased had returned to her father’s home where he also resided about a week before she was killed by the accused. At the time she seemed to be weak and undernourished and had some marks on her body and blue spots on her legs.

Loyd McElroy, a witness for the State, testified: The accused is his father and the deceased was his mother. He, his mother and brother went to his grandfather’s home about a week before his mother’s death because his father was beating and whipping her with a wood chair and a wood-handled brush. He had seen his father whip his mother several times before. “It was pretty bad about two weeks before she left.” Part of the time for the past two or three years his father had been as good to them as he could be. When his father was whipping his mother, he (his father) did not act right. He had discussed his father’s mental condition with his mother and with his father’s sister. He did not know for sure there was anything wrong with his father’s mind — he acted normal most of the time or a lot of the time. He believed his father knew the difference between right and wrong.

Wayne Collins, a witness for the State, testified: He is the Sheriff of Union County and had known the accused for about 25 years. The accused knows the difference between right and wrong. He identified a bottle of whisky which he got from a table at Lincoln Wilson’s home. He got another bottle of whisky which was on the front seat of the defendant’s locked car at a church near the Wilson home where Mrs. McElroy was killed. The accused told him that he had left his car by the side of the church. He got the accused’s shotgun at Lincoln Wilson’s home where Mrs. McElroy was killed.

Mrs. Jamie Lee Mullins, a witness for the defendant, testified: She is the sister of the accused. She had noticed at times that he would just go into a rage which showed mental illness. She had discussed his condition with his son and with his wife. She did not believe the accused had a sound mind. He had always had a violent temper and it had gotten much worse. She did not believe he knew the difference between right and wrong at times.

Mrs. Opal McElroy, a witness for the defendant, testified: She is a sister-in-law of the accused and had known him for 20 years. His mind had not been right for the last 2 or 3 years in her opinion.  