
    McFatter v. State.
    
    (Division A.
    June 6, 1927.)
    [113 So. 187.
    No. 26397.]
    Homicide. Though defendant claiming self-defense and witness were sole eyewitnesses of the shooting, held there was conflict for fury.
    
    Though defendant and his witness were the only eyewitnesses of the shooting, and they testified that deceased drew a pistol and defendant then shot in self-defense, yet defendant having shortly before gone to his car and got a deadly weapon and threatened to kill deceased, and been contradicted by evidence that deceased was not armed at the time, there was such a material conflict in the evidence as to warrant submission of the case to the jury.
    Appeal from circuit court of Copiah county.
    Hon. E. J. Simmons, Judge.
    Louis McFatter was convicted of manslaughter, and he appeals.
    Affirmed.
    
      M. S. McNeil, for appellant.
    It is our contention that the state wholly failed to make out a case against the appellant, and that the court erred in not sustaining a motion to exclude; and, secondly, that after all of the evidence was introduced, the only explanation of the killing was made by the appellant and the eyewitness, Smith, and this explanation clearly showed that the killing was justifiable and that the court erred in refusing to grant the peremptory instruction to find the appellant not guilty.
    Not a witness offered by the state attempts to offer any explanation of the shooting, and not a witness offered by the state was able to deny that the shooting took place in the manner outlined by appellant and his witness. Therefore, we insist, under Gaddis v. State, 110 So. G91, that this case should be reversed and the defendant discharged.
    
      Rufus Creekmore, Special Assistant Attorney-General, for the state.
    The rule of law laid down in the Gaddis case is sound and where testimony offered by the defendant does make out a case of self-defense, where his testimony is reasonable, is uncontradicted by other testimony in the ease, including the physical facts and circumstances, then he is entitled to have the case reversed and to be discharged. The difficulty in the case at bar is that the defendant has not brought himself within the rule of law which is there expounded by the court.
    In view of the numerous contradictions on the most essential and material parts of the testimony, can it be said that the jury was not warranted in disbelieving the testimony of the defendant and that of his main witness, Charlie Smith, to the effect that the shooting was in self-defense? We think that the rule of law laid down by this court in McGehee v. State, 138 Miss. 822, 104' So. 150, is controlling here. In that case the court held that where the circumstances of justification as set up by the defendant are contradicted by the physical facts in the case or by other testimony, the jury may disbelieve the testimony of the defendant and a conviction under such circumstances will be upheld.
    
      
       Corpus Juris-Cyc References: Homicide, 30CJ, r 329, n. 20.
    
   McGowen, J.,

delivered the opinion of the court.

Upon an indictment for murder, McFatter, the appellant, was tried and convicted of manslaughter and sentenced to serve a term of fifteen years in the state penitentiary. From the conviction and sentence he appeals to this court.

Having closely read all the testimony in this case, the brief of appellant, the brief of the attorney-general, and the reply brief, we are of opinion that the facts in this case are wholly unlike the facts in the case of State v. Gaddis (Miss.), 110 So. 601, believing that, in this case, the jury was warranted, by the evidence in the case, in finding the facts against the appellant.

Appellant contends that the testimony of the defendant and of the witness, Charlie Smith (who.was the only eyewitness) is a reasonable explanation of the facts and circumstances; that their testimony is not contradicted either by the physical facts or by the testimony of other witnesses; and that for these reasons; under the Gad-dis case, he should have his case reversed and remanded for another trial.

McFatter shot and killed Sandifer while they were both in attendance upon a box supper given at a schoolhouse. McFatter was twenty-three years of age and the deceased, Sandifer, about seventeen years of age. The quarrel between the parties arose because the deceased flashed a flashlight in McFatter’s wife’s face, calling her “Mrs. McFatter,” and asking her if she were not sorry she had married Louis.

Defendant says that he and the deceased, in company with Charlie Smith, had walked apart from the crowd a short distance; that the deceased drew a pistoi; that he thereupon shot the deceased in self-defense. In this statement he is corroborated by his witness, Charlie Smith.

We think the jury was warranted in declining to believe the statements of the defendant and of his witness, because the defendant, immediately before the killing, threatened to kill the deceased; because the defendant, a few minutes before the killing, went to his car and secured a deadly weapon, returned to where the deceased was and renewed the difficulty, and, after that, sought to have the deceased go with him apart from the crowd to settle the matter between themselves with Smith as the only spectator; and because he was contradicted in his statement that theALeceased was armed at the time— no weapon having been found on or about the person of the deceased immediately after he was shot down. Defendant’s theory that the deceased was armed is contradicted by the fact that defendant says he saw the witness, Ferguson, give a pistol to the deceased before the difficulty was renewed. The witness, Ferguson, contradicted him in this material statement, and Ferguson, in turn, was contradicted by two witnesses who testified that they saw Ferguson drop a pistol from his pocket in the schoolhouse where the crowd was assembled. Defendant is contradicted in the statement he attributes to the deceased just before the fatal shot was fired. In fact, he is contradicted in every material statement made with reference to the circumstances of the difficulty and what was said and done just preceding the shooting.

We think there was such material conflict in the testimony as to warrant the court in submitting the issue to the jury; and, upon a review of the whole testimony, 'we cannot say that the verdict of the jury in this case was wrong.

The argument addressed to us was, doubtless, presented to the jury, and it was proper for it (the jury) to pass upon it. We cannot disturb the verdict.

Affirmed.  