
    Humphreys v. State.
    June 8, 1953
    No. 38766
    34 Adv. S. 103
    65 So. 2d 226
    
      John B. Fárese, for appellant.
    
      
      Joe T. Patterson, Assistant Attorney General, for ap-pellee.
   ArriNgtoN, J.

The appellant, Andrew Humphreys, was convicted of assault and battery with intent to kill and murder Bessie Watts, and sentenced to a term of eighteen months in the state penitentiary, from which judgment he appeals.

The record in this case discloses that Bessie Watts, the prosecuting witness, is the mother-in-law of the appellant; that the appellant’s wife was living with her and that she and the appellant had some trouble about this and other matters. This witness testified that on the night of March 2nd, between the hours of 7 and 8 o ’clock, she was at home with two of her children, ages 13 and 18 respectively; that she was standing at the east window of her home and that her two children were at the south window. Although it is not clear from the record, it appears that a window pane had been knocked out, but when it was knocked out is not stated; that at this time, the appellant shot into the house through the south window with a shotgun; wounding her in the side, which necessitated her being hospitalized for a week. She testified further that at the time the gun fired, the lightning flashed and she recognized the appellant as the one who fired the gun. The two children also testified that when the lightning flashed, they saw and recognized the appellant as the man who did the shooting. Bessie Watts fur-tlier testified that on the night in question, the weather was misty and threatening rain and it had been lightning, although the moon was shining.

The appellant testified in his own behalf and denied that he shot into the home of Bessie Watts, and claimed that he was at home on the night of March 2nd. There was also testimony to the effect that the reputation of the appellant for peace and violence was good.

The appellant presents two assignments of error. It is first contended that the evidence was insufficient to support the verdict of the jury. Appellant argues that the testimony of Bessie Watts and her children as to the identity of the appellant was incredible and so unreasonable that it is unworthy of belief; that the witnesses were prejudiced and testified falsely, and that the evidence was unbelievable. The witnesses for the State testified positively that they identified the appellant at the time of the shooting by the light from the flash of lightning*. We are unable to say that the testimony of the State’s witnesses is so unreasonable and incredible as to be unworthy of belief. The weight of the evidence and credibility of the witnesses was for the jury.

In the case of Hinton v. State, 175 Miss. 308, 166 So. 762, this Court said: “We are asked to reverse the case because the testimony of the chief state witness, Willie Hinton, is so unreasonable and unreliable that a verdict ought not be allowed to stand thereon. The inconsistencies in her testimony, if such there were, are wholly arguments for the jury, and she stands unimpeached in the record. We cannot disturb the verdict where a witness is unimpeached because the witness’ conduct was different from what another might have done under the same circumstances. The jury are the sole judges of the weight and credibility of the evidence, and, under our system, are the exclusive triers of fact. The testimony in this case is not improper, is not contradicted, is not so highly improbable that the truth of it becomes so extremely doubtful as to be repulsive to tbe reasoning of tbe ordinary normal mind. ’ ’

Tbe appellant next contends that tbe court erred in permitting Elie Watts to testify in rebuttal on tbe part of tbe State over the objections of tbe defendant for tbe reason that tbe rule bad been invoked and tbe witness bad violated tbe rule by being in tbe courtroom. Permitting a witness to testify who has violated tbe rule rests with tbe discretion of tbe trial court. In Sartoriuos v. State, 24 Miss. 602 (1852), tbe Court said:

•“The rule on this subject appears to be settled. A witness who has been ordered to withdraw, but who continues in court in violation of tbe order, will not ordinarily be examined. It rests, however, in tbe sound discretion of tbe judge, whether such witness shall be examined or not. ‘This (says Phillips) seems to be tbe safest and justest course, not to exclude bis evidence altogether, but to admit it, subject to such remarks as tbe circumstances may warrant; for otherwise an innocent party, possibly both parties, might be made to suffer a serious injury from the carelessness of a witness, or perhaps from bis ill designs and ill will. A reluctant or hostile witness might thus accomplish bis purpose and defeat tbe party.’” This rule has been consistently followed. Smith and Cavia v. State, 61 Miss. 754; Thomas v. State, 103 Miss. 800, 60 So. 781.

The Court in tbe case of Thomas v. State, supra, where tbe State’s witness bad violated tbe rule by remaining in tbe courtroom during tbe examination of tbe defendant, said: “Assuming that tbe witness had violated tbe orders of tbe court, it was within the discretion of tbe court to punish tbe witness for tbe State and we think tbe court wisely refused to deprive tbe State of tbe witness ’ testimony.” We are of tbe opinion, therefore, that the court did not abuse its discretion in permitting tbe witness to testify.

Iii the light of the views hereinabove expressed, it follows that the judgment'of the court below should be and it is affirmed.

Affirmed.

McGehee, G. J., and Hall, Lee, and Ethridge, JJ., concur.  