Harper v. State

Decision Date22 February 1978
Docket NumberNo. 50134,50134
Citation355 So.2d 314
PartiesCharles HARPER v. STATE of Mississippi.
CourtMississippi Supreme Court

Don H. Evans, Jackson, for appellant.

A. F. Summer, Atty. Gen., by Henry T. Wingate, Special Asst. Atty. Gen., Jackson, for appellee.

Before INZER, SUGG and WALKER, JJ.

INZER, Presiding Justice, for the Court:

Appellant Charles Harper was indicted, tried and convicted in the Circuit Court of Winston County for the crime of burglary. He was sentenced to serve a term of five years in the custody of the Department of Corrections. From this conviction and sentence he appeals. We reverse and remand.

The record reflects that sometime between the hours of 12:30 and 2 a. m. on December 20, 1975, Jayroe's Sport Shop in Louisville was burglarized. Entrance was gained by breaking the glass in the front door of the Radio Shack and then breaking open the door that led to the Sports Shop. An investigation revealed that a number of pistols were taken from the Sports Shop and among the missing guns was a .38 caliber super Llama automatic. Considerable other property was also taken. A rusty sledge hammer wrapped with black tape and a crowbar were found inside the building.

Investigating officers were unable to find any fingerprints. They began to cruise the neighborhood hoping to find suspects. The only car seen and stopped was one being driven by appellant, Charles Harper. This occurred approximately one hour after the break-in was discovered. The officers stopped Harper to "check him out." With Harper's permission, the officers opened the trunk of the car, searched it and found nothing. Harper went on his way. On the night of January 24, 1976, Harper was arrested in Ackerman for the possession of marijuana and for carrying a concealed weapon. At the time he was arrested he was in a car with Roy Thompson. The evidence reflects that Police Officers Shaw and McMinn, in checking out a car, approached the vehicle in which appellant was seated. They observed a bottle of beer between appellant's legs. Ackerman is in a dry county where beer is illegal and the officers told the occupants of the car to get out. Appellant got out of the car and began to remove a pistol from his pocket. Officer Shaw took the pistol and arrested the appellant. The pistol was a .38 caliber super Llama automatic, bearing pit marks on the handle and side, which was identified by Jayroe as being the pistol taken in the burglary of his shop. The serial number of the gun had been filed off, but the criminologist was able to restore the first four digits which were the same numbers as the first four digits of the .38 super Llama that was stolen.

Appellant, after first being advised of his rights, initially told the officers that a person pawned the gun to him in a cafe, but later said he was seated in the car when the gun was pawned to him.

At the trial the appellant testified in his own behalf and denied he committed the robbery and denied that the sledge hammer found in the shop belonged to him. He said that the gun was pawned to him on the night he was arrested and that he was unable to identify the person who pawned him the gun.

On appeal appellant assigns several grounds for the reversal of this case, at least one of which has merit and requires reversal.

Appellant was convicted of burglary and the only evidence tending to establish the guilt of the appellant was his possession of the pistol alleged to have been stolen from the shop that was burglarized and the identification of the sledge hammer as being the same sledge hammer seen in the trunk of appellant's car sometime before the burglary. The state relied on the possession of recently stolen property to establish appellant's guilt. The court granted over the objection of appellant the following instruction:

The Court instructs the Jury that possession of goods recently stolen...

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5 cases
  • Robinson v. State, 53257
    • United States
    • Mississippi Supreme Court
    • February 10, 1982
    ...by this Court when it condemned a much more lengthy instruction than was approved in Hall and Fletcher. We quote from Harper v. State, 355 So.2d 314 (Miss.1978), wherein this Court This instruction as written was objectionable for several reasons. It certainly is not in keeping with the app......
  • Schwegmann Giant Super Markets v. Golden Eagle Ins., Civ. A. No. 88-0008.
    • United States
    • U.S. District Court — Eastern District of Louisiana
    • August 25, 1988
    ... ... 693 F. Supp. 484          Following Erie, a federal court sitting in diversity cases must apply the choice-of-law rules of the state in which it sits. E.g., Atlantic Mutual Insurance Co. v. Truck Insurance Exchange, 797 F.2d 1288, 1291 (5th Cir.1986); see Klaxon Co. v. Stentor ... ...
  • Rushing v. State, 55190
    • United States
    • Mississippi Supreme Court
    • December 5, 1984
    ...which may be considered by the jury and from which, in the absence of a reasonable explanation, the jury may infer guilt. Harper v. State, 355 So.2d 314 (Miss.1978); Engbrecht v. State, 268 So.2d 507 (Miss.1972); Minor v. State, 234 Miss. 140, 106 So.2d 41 (1958). In order to give rise to a......
  • Russ v. Safeco Ins. Co. of America
    • United States
    • U.S. District Court — Southern District of Mississippi
    • January 12, 2012
    ... ... John v. State of La. (Bd. of T. for State C. & U.), 757 F.2d 698, 712 (5th Cir. 1985).A Judge's function at the summary judgment stage is not himself to weigh the ... ...
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