Cummings v. State, 54264

Citation465 So.2d 993
Decision Date09 January 1985
Docket NumberNo. 54264,54264
PartiesDaniel CUMMINGS, Jr. v. STATE of Mississippi.
CourtMississippi Supreme Court

Thomas M. Flanagan, Jr., Odom & McCain, Greenwood, for appellant.

Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.

EN BANC.

PATTERSON, Chief Justice, for the Court:

Daniel Cummings, Jr., was convicted of burglary and sentenced as an habitual criminal [Mississippi Code Annotated, Sec. 99-19-83 (Supp.1982) ] to life imprisonment by the Circuit Court of Leflore County.

From his conviction and sentence he appeals, assigning as error that the trial court (1) overruled appellant's demurrer to the indictment; (2) sentenced the appellant to life imprisonment without benefit of probation or parole; (3) refused to allow the jury to hear evidence proffered by him on the issue of intoxication to overcome the required intent to commit burglary and refused defendant's instructions D-5 and D-5A; (4) permitted the state to question Officer Barr in rebuttal relating to oral statements allegedly made by the defendant to the officer following arrest; (5) failed to grant a mistrial because the state failed to prove by extrinsic evidence the prior criminal convictions of the appellant; and (6) granted State's Instructions S-1 and S-2 to the effect the jury could find the defendant guilty if he acted alone or in concert with others.

At about 11:40 p.m. on the evening of May 4, 1982, a citizen stopped a policeman in the City of Greenwood and told him three people were burglarizing the Stone Street Package Store in that city. Upon investigation the officer found a broken window in the liquor store and someone inside the building. While awaiting assistance from other officers, the officer heard noises emanating from some adjacent shrubbery or bushes. The officer did not leave his position to investigate the noises but merely turned his light to the area while awaiting the arrival of "back up units."

A second patrol car arrived and the individual within the building was advised to stay on the floor where he could be observed pending the arrival of the store owner to unlock the building.

Upon entry of the police into the store they saw Cummings, the appellant, lying on the floor and observed that several shelves had been emptied of liquor. An investigation revealed that the plate glass window in the front of the store was broken above a metal screen and two bricks were found inside the building. Undoubtedly entry into the store was via the broken area as the testimony reveals the door was locked prior to the entry and remained locked until the owner was called to open the door for the officers' entry.

Further investigation disclosed a bag containing several bottles of liquor in the shrubbery several feet from the building. From the record it is apparent there were others involved in the burglary who were not apprehended, leaving only Cummings who was indicted and tried as stated.

Cummings first contends for reversal that the indictment does not charge him with having actually served a term of one year for each of his two prior felony convictions and that the indictment did not give him notice that he was being indicted as an habitual criminal. We first observe that the indictment is sufficient under Dalgo v. State, 435 So.2d 628 (Miss.1983), on petition for rehearing. We there stated,

The indictment sets forth the substantive crime and the habitual criminal requirements in clear and unambiguous language. [See Appendix] The habitual criminal portion of the indictment charges Dalgo with four previous convictions; that he served at least one year of each conviction in the Mississippi State Penitentiary at Parchman, Mississippi; and that one such conviction, assault with intent to rape, involved a crime of violence. The indictment sets forth with certainty that the habitual criminal statute violated is Mississippi Code Annotated Sec. 99-19-83 (Supp.1981), which follows:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation. [Emphasis added]

435 So.2d at 629.

We are of the opinion the first assignment of error is without merit inasmuch as the indictment in the present case is nearly verbatim with that in Dalgo.

It is next urged there was error in sentencing the appellant as an habitual offender because the state's evidence did not establish beyond a reasonable doubt that Cummings had in fact served one year or more in the custody of the State Department of Corrections on the two prior felony convictions. We first observe that the defendant made no objection to the introduction of the certificates of the felonies from the Director of Records at Parchman. Moreover, the defense made no cross-examination of these state's witnesses and the trial court granted the appellant time to consider the evidence presented, thereby affording defendant ample opportunity to make argument or to produce any witnesses he might have had to contradict the testimony of the state. However, no such witnesses were produced nor was any argument made to the trial judge pointing out any mistakes in the court's ruling. We therefore think the contemporaneous objection rule applies and that this point cannot be raised for the first time on appeal. Tucker v. State, 403 So.2d 1271 (Miss.1981), Tubbs v. State, 402 So.2d 830 (Miss.1981). It follows that this assignment is without merit.

The primary argument for reversal is that appellant was refused instructions D-5 and D-5A. In this contention he frankly acknowledges the two instructions essentially follow the prior rule stated in Edwards v. State, 178 Miss. 696, 174 So. 57 (1937). Edwards and its kind hold that if a defendant was in such a state of intoxication due to the use of alcohol, drugs, or a combination of both, to the extent of being incapable of forming the necessary intent to commit the crime charged and incapable of knowing right from wrong that a jury must return a verdict of not guilty. Unfortunate to this argument and leaving it without merit is that Edwards, supra, and its kindred cases were explicitly overruled in McDaniel v. State, 356 So.2d 1151 (Miss.1978). The author of this opinion joined Justice Stokes Robertson and Justice L.A. Smith in their dissents because it was my opinion that the cases overruled expressed better reasoning than the majority opinion overruling them. However, I must acknowledge the obvious, i.e., the dissenting justices did not prevail in McDaniel. Therefore, the majority opinion expressed through Presiding Justice Walker and Justice Sugg became the controlling case law of our state. It is presently well established as precedent for other cases. In Harris v. State, 386 So.2d 393 (Miss.1980), it was held,

The trial court's refusal to give the appellant's proffered instruction on voluntary intoxication is supported by our holding in McDaniel v. State, 356 So.2d 1151 (Miss.1978), wherein this Court said:

"If a defendant, when sober, is capable of distinguishing between right and wrong, and the defendant voluntarily deprives himself of the ability to distinguish between right and wrong by reason of becoming intoxicated and commits an offense while in that condition, he is criminally responsible for such acts." 356 So.2d at 1161.

386 So.2d at 396.

Again in Lee v. State, 403 So.2d 132 (Miss.1981), the defendant requested an instruction very similar to those presently complained of. There the rule announced in McDaniel and Harris, supra, received favorable comment through amplification by Justice Hawkins who stated for the court,

The McDaniel rule prevents "submission to a jury the question of voluntary intoxication as a defense in specific intent offenses." 356 So.2d at 1161. An amplified restatement of the rule is: a defendant, capable of distinguishing between right and wrong when sober, is not entitled to an instruction submitting to the jury his inability to form the specific intent to commit an offense because of his voluntary intoxication at the time the offense was committed. The rule was followed in Harris, supra.

In this case defendant was not entitled to the instruction in question, either as submitted by him, or as modified by the trial judge.

403 So.2d at 134.

More recently in Hall v. State, 427 So.2d 957 (Miss.1983), in reliance upon McDaniel, Harris, and Lee, Justice Robertson rejected argument for a similar instruction as that now before us. We held,

Whatever the law may once have been in this state, it is well settled today that voluntary intoxication is not a legally cognizable defense available to persons charged with crimes requiring proof of specific intent. On the authority of McDaniel v. State, 356 So.2d 1151 (Miss.1978); Harris v. State, 386 So.2d 393, 396 (Miss.1980); and Lee v. State, 403 So.2d 132, 134 (Miss.1981), we hold that the trial judge was correct in his refusal to give the requested instruction.

427 So.2d at 961-62.

We are of the opinion the trial court did not err in refusing the defendant's instructions D-5 and D-5A.

The appellant contends however that these two refused instructions when considered in conjunction with S-3 inured to his great prejudice and necessitates a reversal. Instruction S-3 for the state does no more than set forth for the jury's guidance the rule pronounced in McDaniel, thereby leaving this contention without merit.

Cummings next argues the trial...

To continue reading

Request your trial
25 cases
  • Turner v. State, 97-DP-00583-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • February 4, 1999
    ...U.S. 934, 109 S.Ct. 330, 102 L.Ed.2d 348 (1988), reh'g denied, 488 U.S. 1023, 109 S.Ct. 826, 102 L.Ed.2d 815 (1989); Cummings v. State, 465 So.2d 993, 996 (Miss.1985). Moreover, this Court has repeatedly held that `when testimony is excluded at trial, a record must be made of the proffered ......
  • Cuevas v. Royal D'Iberville Hotel, 55469
    • United States
    • United States State Supreme Court of Mississippi
    • November 12, 1986
    ...(Miss.1985); Gray v. State, 427 So.2d 1363 (Miss.1983); and State v. Clements, 383 So.2d 818 (Miss.1980); and burglary, Cummings v. State, 465 So.2d 993 (Miss.1985). And these are just the tip of the iceberg. See City of Clinton v. Smith, 493 So.2d 331, 335 We are all generally familiar wit......
  • Evans v. State, No. 93-DP-01173-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • September 11, 1997
    ......denied, 488 U.S. 934, 109 S.Ct. 330, 102 L.Ed.2d 348 (1988), reh'g denied, 488 U.S. 1023, 109 S.Ct. 826, 102 L.Ed.2d 815 (1989); Cummings v. State, 465 So.2d 993, 996 (Miss.1985) . Moreover, this Court has repeatedly held that "when testimony is excluded at trial, a record must be made ......
  • Cole v. State
    • United States
    • United States State Supreme Court of Mississippi
    • July 29, 1987
    ...no ruling by the trial court on any of these objections, they are waived. Hemmingway v. State, 483 So.2d 1335 (Miss.1986); Cummings v. State, 465 So.2d 993 (Miss.1985). IV. WERE EXTRANEOUS FACTORS INTRODUCED AT THE SENTENCING PHASE IN VIOLATION OF COLE'S CONSTITUTIONAL This assignment of er......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT