Jackson v. State, 55267
| Decision Date | 19 February 1986 |
| Docket Number | No. 55267,55267 |
| Parties | Frank JACKSON v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
William O. Townsend, Pearl, for appellant.
Edwin Lloyd Pittman, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.
This is an appeal from the County Court of Rankin County, wherein the appellant, Frank Jackson, was indicted, tried and convicted as a recidivist for the crime of burglary of a dwelling. He was sentenced pursuant to Mississippi Code Annotated Sec. 99-19-83 (1985 Supp.) to life imprisonment without benefit of parole in the custody of the Mississippi Department of Corrections. Aggrieved with the lower court's holding he has perfected his appeal to this Court raising fourteen (14) assignments of error.
The crime for which the appellant was tried occurred in the early morning hours of May 23, 1982 in the home of Mr. and Mrs. Ward in Brandon. Mrs. Ward was awakened when she heard a noise caused by a phone falling to the floor in the bedroom occupied by her brother, Johnny Blowe, who was visiting the Wards. Her ninety-two (92) year old husband was asleep when Mrs. Ward heard her brother ask Mrs. Ward walked to Blowe's room where she saw a black male sitting on the floor wearing only a dark colored T-shirt. The man identified himself as Tom Mize from down by the railroad tracks.
Mrs. Ward sought the help of her retarded son Hilliard, to get the intruder out of the house. Hilliard got a shotgun and told the man to get out. The black male went to the door and left going around the house.
After a few minutes had elapsed Mrs. Ward and her son went outside and around the house where they found some clothing under the house near the window leading into Blowe's room. The window had been pushed open and the screen pulled off. Mrs. Ward went back inside and called her daughter who phoned the police.
Later that morning the constable came by the Ward's with a black male in his vehicle. Mrs. Ward, as well as her brother, identified the suspect as the man who entered the Ward's home and was found in Blowe's room earlier that morning.
Hulon Craft, the investigating officer, testified he found the appellant approximately three (3) miles from the Ward's residence about 45 minutes after receiving the complaint. The appellant was found sitting under some lights outside Swilleys' Store. He told Craft his name was Johnny Mize and that he had been with two prostitutes who brought him to Swilleys, robbed him and took his clothes. After taking the suspect to the Ward's for identification Craft then took him to the jail where he was photographed and incarcerated. Later, near daylight, the appellant admitted to Craft that his name was Frank Jackson.
THE COURT ERRED IN FAILING TO SUSTAIN HIS MOTION FOR A
DIRECTED VERDICT.
The elements necessary to convict a defendant for the crime of burglary are (1) the burglarious breaking and entering of a dwelling or building, and (2) the intent to commit a crime therein. Mason v. State, 344 So.2d 144 (Miss.1977). Suffice it to say the evidence presented at trial and reviewed by this Court is overwhelming as to the proof that the elements of burglary were shown.
The evidence offered by the State was that the appellant entered the house of the Ward's through a bedroom window which was covered by a screen and closed prior to their going to bed that evening. Mrs. Ward was awakened when she heard a phone fall to the floor and heard her brother question the intruder as to what he was doing in the home that night. The element of breaking was satisfied.
As to appellant's assertion that the intent to commit a crime therein portion of the statute was not satisfied, the jury had before it evidence that the appellant was found immediately, after entering the home wearing only a T-shirt. In Dixon v. State, 240 So.2d 289 (Miss.1970) we stated:
The principal contention is that the State failed to prove the necessary felonious intent to commit larceny as charged in the indictment and required by Mississippi Code 1942 Annotated, Section 2043 (1956). The Mississippi rule was set out in Nichols v. State, 207 Miss. 291, 42 So.2d 201 (1949) and Thames v. State, 221 Miss. 573, 73 So.2d 134 (1954). These cases followed State v. Worthen, 111 Iowa 267, 82 N.W. 910 (1900), which stated:
Some presumptions are to be indulged in against one who enters a building unbidden, at a late hour of night, else the burglar caught without boot might escape the penalties of the law. * * * People are not accustomed, in the nighttime, to enter homes of others, when asleep, with innocent purposes. The usual object is theft, and this is the inference ordinarily to be drawn in the absence of explanation from breaking and entering at night, accompanied by flight when discovered, even though nothing has been taken. (111 Iowa at 269, 82 N.W. at 911).
The recent case of Newburn v. State, 205 So.2d 260 (Miss.1967), stated:
The State seldom has direct and positive testimony expressly showing the specific intent of an intruder at the time he unlawfully breaks into a dwelling house; however, such testimony is not essential to establish the intent to commit a crime. Intent is an emotional operation of the mind, and is usually shown by acts and declarations of the defendant coupled with facts and circumstances surrounding him at the time. Defendant's intention is manifested largely by the things he does. (205 So.2d at 265).
Cf: Winston v. State, 479 So.2d 1093 (Miss.1985).
Under the facts of this, the jury was justified in inferring that the appellant entered the home, after removing his pants, for the purpose of committing an assault or rape upon someone therein.
The court quite correctly overruled appellant's motion for a directed verdict.
THE COURT ERRED IN FAILING TO GRANT A MISTRIAL FOR ADMITTING
A PHOTOGRAPH OF THE APPELLANT INTO EVIDENCE.
On the night of Jackson's arrest, upon being booked, he was photographed by Richard Bryant the Rankin County Jailer. Bryant died prior to the time of trial.
Craft, the arresting officer, testified the photograph was a fair and accurate depiction of the person (Frank Jackson) he arrested on the night in question. Appellant asserts Officer Craft did not take the photograph and thus was not the proper person to testify the photograph was a true and accurate depiction of the appellant. There is no requirement that the photographer testify if there is other competent testimony that the photograph represents what it purports to be, in this case the defendant.
THE SENTENCE OF LIFE IMPRISONMENT WITHOUT PAROLE AS A
VIOLENT HABITUAL OFFENDER IS UNCONSTITUTIONAL
UNDER THE EIGHTH AMENDMENT TO THE
CONSTITUTION AS CRUEL AND
UNUSUAL PUNISHMENT.
The appellant argues his sentence of life imprisonment without parole is disproportionate to the offense he was charged with and cites us to Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) wherein it was held that one cannot constitutionally be sentenced to life imprisonment without parole where the sentence is disproportionate to the crime.
The appellant in Helm was charged with uttering a "no-account" check for $100.00, his seventh nonviolent felony. The court determined that although Helm's prior offenses were classified as felonies all were relatively minor. All were nonviolent and none was a crime against a person. The prior convictions of the appellant in the case sub judice were mayhem and manslaughter (the victim was killed after being raped), crimes of a violent nature. In Baker v. State, 394 So.2d 1376 (Miss.1981) this Court specifically held that Sec. 99-19-83 was constitutional. Also see: Adams v. State, 410 So.2d 1332 (Miss.1982); Hayden v. State, 407 So.2d 535 (Miss.1981). We find appellant's proportionality argument unpersuasive and his reliance on Helms misplaced. In our opinion, Sec. 99-19-83 does not constitute cruel and unusual punishment as applied to the facts of this case.
THE COURT ERRED IN SENTENCING APPELLANT AS A VIOLENT
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