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279 So. 2d 161

Docket No. 47414.

Powell v. State

Kenneth POWELL v. STATE of Mississippi.

Mississippi Supreme Court

Decided June 5, 1973.

Rehearing Denied June 29, 1973.

Mississippi Supreme Court · decided 1973-06-05

Key passage — most relied on by later courts

“(a) When committed by accident and misfortune in doing any lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent; (b) When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation; (c) When committed upon any sudden combat, without undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel or unusual manner.”

quoted by 3 later decisions, including Towner v. State, 677 So. 2d 726 - Miller v. State

“committed in the course of an unlawful act.”

quoted by 1 later decision, including Towner v. State

Relies on Long v. State · Wood v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1973-06-05

How this case has been cited

Cited by 5 later decisions — most recently December 1998

5 state decisions

30197319801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Lawrence D. Arrington, Hattiesburg, for appellant.

¶2A.F. Summer, Atty. Gen., by Ben H. Walley, Sp. Asst. Atty. Gen., Jackson, for appellee.

¶3GILLESPIE, Chief Justice.

¶4This eternal triangle case is proof that having an affair with another man's wife can be a dangerous adventure.

¶5Indicted for the murder of Ira Hinton, Jr., and convicted of manslaughter in the Circuit Court of Perry County, Kenneth *162 Powell appealed to this Court. He contends that his conviction is contrary to the law and evidence.

¶6Defendant went to a tavern looking for his wife. She was there. Ira "Night Hawk" Hinton, Jr., who had previously been out with defendant's wife, was also in the tavern. Defendant then went to his car and got a pistol and placed it in his pocket. As he walked toward the tavern his wife came out and sat down on a bench. "Night Hawk" followed and sat down beside her. Defendant approached them and asked his wife what she was doing with "Night Hawk up in her face." Defendant's wife told him that she was not going home, whereupon defendant slapped her. "Night Hawk" then said, "She's going with me, and you're not going to do a damn thing about it." Defendant, with gun in hand, struck "Night Hawk" on the side of the head, knocking him off the bench, then kicked him. As the unarmed "Night Hawk" was trying to get up, defendant hit him again and as he did so the gun fired. "Night Hawk" was mortally wounded.

¶7Defendant argues that the testimony shows that the gun was fired accidentally, and, therefore, he is not guilty of manslaughter. He contends that he is exonerated by Mississippi Code 1942 Annotated section 2219 (1956), wherein it is provided that a killing shall be excusable "(b) when committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation." This section does not excuse an offense in the commission of which a deadly weapon is used. Wood v. State, 64 Miss. 761, 2 So. 247 (1887). Nor does it excuse the killing of a human being when done in the course of an unlawful act. Long v. State, 163 Miss. 535, 141 So. 591 (1932).

¶8Affirmed.

¶9SMITH, SUGG, WALKER and BROOM, JJ., concur.

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