Cummings v. State, 45268
| Decision Date | 24 February 1969 |
| Docket Number | No. 45268,45268 |
| Citation | 219 So.2d 673 |
| Parties | Jesse M. CUMMINGS v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Joe O. Sams, Jr., Billy J. Jordan, Columbus, for appellant.
Joe T. Patterson, Atty. Gen., by Guy N. Rogers, Asst. Atty. Gen., Jackson, for appellee.
Jesse M. Cummings, appellant, was indicted for the crime of burglary during the 1965 term of the Circuit Court in Lowndes County. He was tried and found guilty of the crime charged during the regular June 1968 term of the court. From the time of his indictment in 1965 until his trial in 1968 he was in the custody of the Alabama authorities. From a verdict of guilty he was sentenced to serve seven years in the state penitentiary. He appeals to this Court and assigns the following as error:
1. The trial court erred in not granting the defendant's motion to dismiss the charges against him because of the State's failure to grant a speedy trial.
2. The trial court erred in not granting the defendant a continuance until such time as his hair could grow and he could present a reasonable appearance in the courtroom.
3. The trial court erred in allowing the State to admit evidence of other separate and independent crimes committed by the defendant.
4. The trial court erred in admitting evidence based upon an illegal search and seizure.
On the weekend of September 13, 1965, the Lowndes County Co-op was burglarized and approximately $400 stolen. Of this amount there was included a $100 bill. In the early morning hours of September 14, 1965, the defendant was stopped and taken into custody by the authorities in Columbus, Mississippi. He was relased on his own recognizance shortly thereafter. He was later arrested by Alabama authorities on September 16, 1965, for another offense and was incarcerated until 1968, giving rise to a delay in his trial in this state.
The defendant contends that by a delay in his prosecution for some three years, he was denied his constitutional right to a speedy trial. His argument relies heavily on the proposition that the Sixth Amendment right to a speedy trial was made a part of the Constitution in order to insure that three basic demands of the Anglo-American system of justice were met. According to that proposition, the amendment attempted to (1) prevent undue and oppressive incarceration (2) minimize anxiety and concern accompanying public accusation and (3) limit the possibility that a long delay will impair one's ability to defend himself.
We note that these demands are discussed at length by the United States Supreme Court in Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (Jan. 20, 1969). That case dealt specifically with the right of a defendant to be brought to trial under a separate indictment while serving a sentence in a federal penitentiary. The Court, in concluding its opinion, stated in part:
By a parity of reasoning we hold today that the Sixth Amendment right to a speedy trial may not be dispensed with so lightly either. Upon the petitioner's demand, Texas had a constitutional duty to make a diligent, good-faith effort to bring him before the Harris County court for trial. (Emphasis added.) 89 S.Ct. at 579.
In a separate concurring opinion by Mr. Justice Harlan we also find the statement: 'I agree that a State may not ignore a criminal accused's request to be brought to trial * * *.' (Emphasis added.) In the instant case the appellant made no request for a trial in Lowndes County while he was incarcerated in the state of Alabama. As we view the Smith opinion, the request for speedy trial is mandatory. Cf., however, Jones v. State, 250 Miss. 186, 164 So.2d 799 (1964). In the absence thereof we conclude that this assignment of error is not well taken.
The appellant next contends that the court erred in not continuing the cause until his hair could grow to a normal length. He argues that since his hair had been shaved at the penitentiary, his appearance had the effect of prejudicing the jury against him. He argues that his appearance would lend weight to a presumption of guilty rather than the presumption of innocence. As early as 1847 we held in the case of McDaniel v. State, 8 Sm. & M. 401, 415 (1847) that:
The continuance of a cause, is matter resting in the sound discretion of the court, and an appellate tribunal will never interfere but with extreme reluctance and caution. To justify such interference there must have been a palpable error committed, without the correction of which manifest injustice will be wrought.
This rule has been consistently followed and where there is no showing of an abuse by the lower court, this Court will not interfere with their action. See Bennett v. State, 197 So.2d 886 (Miss.1967) cert. denied 389 U.S. 46, 88 S.Ct. 238, 19 L.Ed.2d 51 (1967). The trial court had the opportunity to view the defendant, consider his appearance, and to hear the argument of counsel on the point. From the record we cannot say that there was an abuse of discretion in this regard. It is our opinion that this assignment of error is without merit.
The third point assigned as error is the action of the trial court in allowing the State to present evidence of a separate and independent crime committed by the defendant, thereby prejudicing the jury and denying him the right to a fair and impartial trial. This question arises primarily out of the testimony elicited from one Easterwood, a deputy sheriff, from Cullman, Alabama. The following questions were propounded to him by the district attorney:
Another witness, a state trooper from Alabama, was propounded a similar question:
Testimony of a similar nature was elicited from the Chief of Detectives of the Columbus Police Force when he was questioned about a trip he made to Cullman, Alabama. However, we note this question was not objected to.
The State's purpose in producing these witnesses was to identify a pair of vice-grip pliers, a black bag, and a pair of gloves in the possession of the appellant or his co-hort. The introduction of this evidence was patent error and we might add was not vital to the State's case. The question could have been simply put as to whether the gloves, etc. were in the possession of the defendant when obtained by the officers without mentioning the particular circumstances. In May v. State, 199 So.2d 635, 641 (Miss.1967), the general rule on the admissibility of evidence of this nature is stated as follows:
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