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629 So. 2d 603

Polite v. State

Mississippi Supreme Court

Decided December 16, 1993

Mississippi Supreme Court · decided 1993-12-16

Applies MS 97 § 97-3-19

Relies on 551 So. 2d 188 - Benson v. State · 606 So. 2d 1132 - Parker v. State · Strong v. State

Decided 1993-12-16

SULLIVAN, Justice,

¶1for the Court:

¶2Wallace Polite was convicted of murder in the Circuit Court of Lowndes County, Mississippi, and sentenced to life imprisonment in the custody of the Mississippi Department of Corrections.

¶3Ted Jenkins and Wallace Polite had an argument about a woman. As a result of that argument, Wallace Polite struck Ted Jenkins in the back of the head. Jenkins ignored the attack and attempted to leave the scene, but Polite and his two cohorts would not allow Jenkins to leave peacefully. Polite stabbed Jenkins in the chest and Jenkins bled to death as a result of that wound. Although Polite claimed Jenkins made the first attack, by hitting Polite in the back of the head, none of the witnesses at trial corroborated this version of the events.

¶4Polite appeals to this Court, assigning one error:

¶5The lower court erred in overruling Appellant’s motion for directed verdict, refusing to grant Appellant his instruction D-l, and failing to grant Appellant’s motion for new trial in that the jury’s verdict was against the overwhelming weight of the evidence.

¶6This assignment of error will be discussed in three parts.

¶7A.

¶8WAS IT ERROR FOR THE LOWER COURT TO OVERRULE POLITE’S MOTION FOR DIRECTED VERDICT?

¶9Polite first contends that it was error for the lower court to overrule his motion for a directed verdict. Based on the evidence before the trial judge and the law as set forth in Parker v. State, 606 So.2d 1132, 1140 (Miss.1992), it was not error for the trial judge to overrule the motion for directed verdict. There is ample evidence for the jury to have found that Polite killed Ted Jenkins unlawfully, willfully, feloniously, and with malice aforethought, pursuant to Miss. Code Ann. § 97-3-19 (Supp.1990).

¶10B.

¶11WAS IT ERROR FOR THE TRIAL JUDGE TO REFUSE TO GRANT INSTRUCTION D-l?

¶12D-l is a peremptory instruction which reads: “THE COURT instructs the Jury to find the Defendant, WALLACE POLITE, not guilty.”

¶13Based on the evidence in this record and the law as set forth in Strong v. State, 600 So.2d 199, 201 (Miss.1992); Allred v. State, 606 So.2d 758, 760 (Miss.1992), citing Brown v. State, 556 So.2d 338, 340 (Miss.1990); and Benson v. State, 551 So.2d 188,193-94 (Miss.1989), the trial court was correct in refusing to grant Instruction D-l.

¶14C.

¶15WAS POLITE ENTITLED TO A NEW TRIAL BECAUSE THE VERDICT IN THIS CASE WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶16As we have already stated the evidence in this record clearly makes it impossible for *605the jury verdict to be against the overwhelming weight of the evidence and it was not error for the trial court to refuse to grant the motion for new trial. Flowers v. State, 601 So.2d 828, 833 (Miss.1992); Pierre v. State, 607 So.2d 43, 54 (Miss.1992); and Alexander v. State, 602 So.2d 1180, 1183 (Miss.1992). This record reflects ample evidence to support the jury’s guilty verdict, therefore, Polite’s appeal assailing the sufficiency of the evidence is without merit.

¶17CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED.

HAWKINS, C.J., DAN M. LEE and PRATHER, P.JJ., and PITTMAN, BANKS, McRAE, JAMES L. ROBERTS, Jr., and SMITH, JJ., concur.
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