Jackson v. State

• Decision Date: 23 November 1970
• Docket Number: No. 46014,46014
• Citation: 243 So.2d 396
• Parties: James JACKSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 396

243 So.2d 396

James JACKSON v. STATE of Mississippi.

No. 46014.

Supreme Court of Mississippi.

Nov. 23, 1970.

Rehearing Denied Feb. 8, 1971.

George F. West, Jr., Mullins & Smith, Natchez, for appellant.

A. F. Summer, Atty. Gen., by Timmie Hancock, Sp. Asst. Atty. Gen., Jackson, for appellee.

PATTERSON, Justice:

This is an appeal from a judgment of the County Court of Adams County which heard the case pursuant to transfer from the Circuit Court, Mississippi Code 1942 Annotated section 1605 (1956). The defendant was found guilty of possession of marijuana by the jury for which he was sentenced to three years in the state penitentiary. Being aggrieved, he appeals to this Court.

The appellant, James Jackson, was arrested on October 9, 1969, upon the basis of two warrants issued by a justice of the peace. The warrants indicated that Jackson had failed or refused to return his automobile operator's license and license tag to the state as required by law subsequent to their suspension. He was also arrested for driving his automobile without a license tag at the time he was apprehended.

Sheriff Ferrell, one of the arresting officers, testified that he impounded Jackson's car under the provisions of Mississippi Code 1942 Annotated section 9352-53 (1956), driving it to the premises of the county jail. Simultaneously, Jackson was taken to jail for booking along with one Stampley, who occupied the car with him, and there he was advised that the contents of his car would be inventoried in his presence. His further testimony was that shortly after the officers had been dispatched to make the inventory, he was summoned and was shown a small match box taken from the automobile containing segments of what appeared to be 'tobacco or some such substance.' After this box was disclosed, the inventory continued and eleven other boxes were discovered; three from a litter bag, four from above the sun visor on the driver's side of the automobile, and four in the air breather at the top of the carburetor. Of the twelve boxes found eight were filled with a green leafy substance, the remainder with segments of what appeared to be residue of 'tobacco or some such substance.'

The material found in the boxes was determined by the state chemist to be marijuana. Prior to the trial on the merits, the appellant moved the court for an order requiring the State to furnish to the defendant, his counsel, or an independent chemist employed by him, the following:

1. A detailed report setting forth the tests made, methods and procedures used, and findings yielded from the chemical analysis conducted by the State of Mississippi, or any chemist acting for and on its behalf, of a substance allegedly seized from the defendant on October 9, 1969.

2. A sample of the alleged marijuana of sufficient size and quantity to enable an independent chemist employed by the defendant to determine whether marijuana is present.

The court overruled this motion. Additionally, objection was made by the defendant to the introduction of this evidence, as was a motion to suppress, both of which were overruled. Objection was also made to the introduction of the boxes and their contents as being the result of an illegal search. This objection was also overruled.

The holding of the court with regard to these objections was the prime source of the appellant's numerous assignments of error.

Appellant contends that he was entitled to have a sample of the substance seized from his automobile in order that an alalysis might have been made by a chemist of his own choosing. Although we recognize that it is within the discretion of the trial court to allow or disallow a defendant an opportunity to inspect tangible evidence possessed by the prosecuting attorney, the discretion, nevertheless, is judicial in nature and subject to review by this Court.

In Armstrong v. State, 214 So.2d 589, 596 (Miss.1968), we recognized the developing trend toward allowing inspection by the defendant of tangible evidence. After discussion of all pertinent authority, we stated:

It is becoming increasingly clear from a study of the foregoing authorities that, although the trial judge has discretionary power in determining whether or not tangible evidence in the possession or under the control of the prosecuting attorney should be given to the defendant for his inspection, nevertheless, the defendant should be permitted to inspect tangible evidence which may be used against him or which may be useful in his defense. This does not mean that a defendant may peruse the private files of a prosecuting attorney or examine his private notes. It does mean, however, that the concept of 'due process' and 'fair trial' requires that material, tangible evidence must not be concealed from the defendant who is accused of crime. There is no good reason why the defendant in a civil case should be entitled to more liberal right to tangible evidence in the possession of his adversary under the authority of section 1659, Mississippi Code 1942 Annotated (1956) than is a person under a serious criminal charge.

The guilt or innocence, prison sentence or acquittal, of the defendant depends entirely upon the identification of the contents of the boxes as marijuana. This substance was relevant, material, competent and, in fact, necessary evidence to defendant's conviction. Under this circumstance we are of the opinion that due process of law requires, upon the court's attention being directed thereto by motion, that the analysis of the substance not be left totally within the province of the state chemist. The defendant having made proper and timely motion for a portion of the substance, it should have been made available to his...