Boyd v. State, 44502

• Decision Date: 06 November 1967
• Docket Number: No. 44502,44502
• Citation: 204 So.2d 165
• Parties: Bobby Lee BOYD v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 165

204 So.2d 165

Bobby Lee BOYD v. STATE of Mississippi.

No. 44502.

Supreme Court of Mississippi.

Nov. 6, 1967.

Pigford & Hendricks, Meridian, for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.

BRADY, Justice.

This is an appeal from a conviction for possession of drugs prohibited by Mississippi Code 1942 Annotated section 6831-02 (1952) under which appellant was sentenced to serve a term of two years in the state penitentiary. The relevant facts are as follows.

Over a period of time the Standard Drug Company of Meridian had experienced an unaccountable loss of 80,000 Syndrox methamphetamine pills from its inventory. Shortly before the lunch hour on August 30, 1966, Mr. E. H. Morrison, vice-president of the company, and Mr. T. W. Calcote, an employee, both took an inventory of the Syndrox pills which the company had in its stock. This inventory revealed that the company had on hand six bottles of the Syndrox pills, each bottle containing 1,000 pills. During the lunch hour Mr. Calcote remained in the store in a position where he could observe persons walking up and down the aisle where the particular drugs were stored. He testified that at approximately 12:20 a person whom he identified as Mrs. Willis Virginia Boyd, wife of appellant, passed through the darkened aisle where the pills were stored, and that she was the only person to pass through the aisle during the time he was present. He also testified that Mrs Boyd's duties with the company did not require her to be in that part of the store where the Syndrox pills were kept. Mr. Calcote testified that immediately after Mrs. Boyd left he took a second inventory of the Syndrox drugs and discovered that two of the original six bottles were missing. Later, Mr. Morrison counted the pills left on hand and confirmed Mr. Calcote's findings.

Detective L. L. Scarborough of the Meridian Police Department testified that at approximately 12:20 on August 30, he observed Mrs. Willis Virginia Boyd as she left the Standard Drug Company and drove away in her car. Detective Scarborough followed her to the parking lot of the Southern Pipe & Supply Company where the appellant was employed. He saw some man walk up to Mrs. Boyd's car while she was parked, but because of the distance and the underbrush between him and Mrs. Boyd he could not positively identify the man. After observing the two for a few minutes, Detective Scarborough returned to the Standard Drug Company. Later that afternoon Detectives Scarborough and A. W. Creel went before Justice of the Peace R. E. Crawford. They made an affidavit before him that they had good reason to believe and did believe that Syndrox methamphetamine pills were concealed in a pickup truck on the Soughtern Pipe & Supply Company's parking lot and that this truck was listed in the name of Bobby L. Boyd. On the face of the affidavit the following was given as to the reason for their belief:

Information was obtained from two reliable informants. Surveillance of an employee of a drug company.

The record discloses, however, that Detective Scarborough and Detective Creel testified under oath before Justice of the Peace Crawford advising him that some 80,000 Syndrox pills had been stolen from the Standard Drug Company in past weeks. Detective Scarborough related the events which took place in the Standard Drug Company at noon of that day based on information he had received from employees of the company. He also testified before the justice of the peace concerning his surveillance of Mrs. Boyd from the time she left the drug company until she reached the parking lot of the Southern Pipe & Supply Company. Detective Creel signed the affidavit for the search warrant and corroborated the statements of Detective Scarborough. At the trial of appellant, Justice of the Peace Crawford testified that he issued the search warrant based on the information given him in the affidavit and the testimony of the two detectives.

Armed with a search warrant, Detectives Scarborough, Creel, McNair and Brown went to the parking lot of the Southern Pipe & Supply Company. While Detective Creel went inside to arrest appellant, the other three officers proceeded to locate the pickup described in the search warrant. After identifying the pickup Detective Scarborough placed a copy of the search warrant on the seat and proceeded to search the glove compartment of the truck where he found two bottles of the Syndrox methamphetamine pills secluded in a cigarette carton. After Detective Scarborough initialed both bottles which he had found, the appellant was searched and transported to police headquarters.

Mr. E. H. Morrison testified that the two bottles taken from the pickup truck of appellant bore the same lot numbers as those bottles remaining in the company's inventory, and the record further discloses that the pills taken from the appellant were made by the same manufacturer which supplied the Standard Drug Company with the other methamphetamine pills which it stocked. Mr. Eugene W. Rider, an Examiner Chemist for the Federal Bureau of Investigation in Washington, D.C., testified that his examination of the pills taken from the appellant's truck revealed that they were of the amphetamine type drug sold under the trade name 'Syndrox' and that they were a central nervous system stimulant commonly called 'pep pills.'

The appellant did not testify in his own behalf but used four character witnesses who testified that his general reputation in the community in which he lives is good. Any other details essential to a determination of the issues involved in this appeal will be presented during the consideration of these various issues. Although there are eleven assignments of error urged by appellant, these resolve themselves into six categories dealing with (1) the legality of the grand jury; (2) the admission of evidence discovered in the search of appellant's truck; (3) the admission of testimony concerning the alleged commission of a crime by appellant's wife; (4) instructions granted to the State; (5) comments made by the trial judge; and (6) the weight of the evidence relied upon the convict the appellant.

I

Appellant argues that both the grand jury and the indictment against him should be quashed for four reasons: (1) The judge was absent at the time of the drawing; (2) women were systematically excluded; (3) Negroes were systematically excluded; and (4) the jury does not represent a fair cross-section of the county.

By agreement between counsel and the trial court it was stipulated that the testimony given in the case of Davis v. State, 204 So.2d 270 (Miss. Nov. 6, 1967) relating to the selection of the November grand jury, is to be embodied in and made a part of this record. The same agreement governs the records in Northcutt v. State, 203 So.2d 795 (Miss. Oct. 30, 1967), and McLelland v. State, 204 So.2d 158 (Miss. Nov. 6, 1967).

The record discloses that at the May term of court the trial judge found that Negroes had been systematically excluded from jury service in Lauderdale County and as a result quashed all indictments, set aside all convictions, and freed all prisoners who were able to make bond on bondable offenses. At that time the trial judge, in open court, instructed all members of the Board of Supervisors to draw the names of 1500 qualified persons for jury service, following the law which related thereto. The record discloses that in accordance with these instructions each supervisor examined the registration books and selected 300 persons from his district, with names being drawn from each precinct of the district. It was stipulated by counsel that Lauderdale County had a population of approximately 67,119 persons of which 43,635 were members of the white race and 23,464 were member of the Negro race, thus establishing the fact that Negroes constitute 34.9% of the population of the county. The record discloses that pursuant to the court's instructions and the applicable laws, the supervisors made a genuine effort to impartially select prospective jurors irrespective of their race or color. At the time the motion was urged it was stipulated that there was one Negro stitting on the grand jury and that no women had been selected. The record discloses that there were seven Negroes present in court who had been summoned as veniremen and that another Negro had been excused. The lists utilized by the supervisors showed the registrant's age, sex, and district of residence; but there was no indication of race on any of the lists.

Supervisor R. N. McElroy of District 2 selected every seventh name, omitting women, and selected names from each voting precinct in his district. He testified that he had no way of knowing whether the man chosen was white or Negro except that in some instances there was a possibility he would know the individual. He testified also that he had no way of knowing how many Negroes' names were placed in the box.

Supervisor J. Frank Spears of District 3 selected every fifth person on the list from his district who was qualified for jury service. Frequently names of women would constitute the fifth or more numbers and consequently Mr. Spears would occasionally have to go as far as ten names down the list before he could find a qualified person. Mr. Spears testified that he went down the jury list on each precinct and drew names of qualified persons as far as he could tell from the list, excluding women, those over age, and those physically unable to serve. He estimated that ten to fifteen percent of the qualified electors in his district were Negro.

Supervisor Roy Griffin of District 5 selected his names alphabetically, going down the list from precinct to precinct in order to get some names from each precinct, excluding women. Supervisor Griffin stated, as did all the supervisors, that he did not purposely or knowingly exclude or include whites or Negroes in...