Jones v. State, 51770
| Decision Date | 30 April 1980 |
| Docket Number | No. 51770,51770 |
| Citation | 383 So.2d 498 |
| Parties | C. B. JONES v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Harry L. Kelley, Jackson, for appellant.
A. F. Summer, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before ROBERTSON, P. J., and LEE and BOWLING, JJ.
LEE, Justice, for the Court:
C. B. Jones was convicted in the Circuit Court of Forrest County for carrying a deadly weapon, when he had been convicted of a felony previously, and was sentenced to serve five (5) years in the Mississippi State Penitentiary, from which sentence and judgment he has appealed to this Court.
On September 4, 1978, appellant entered Eddie's Lounge, a bar in Forrest County, and began shooting pool with several individuals in the establishment. Faye Barber, the proprietor of the bar, observed the appellant remove a pistol from his boot and wave it around. He then placed the pistol back in his boot and continued shooting pool. Mrs. Barber notified the sheriff's office. Approximately ten (10) minutes later two (2) deputy sheriffs arrived at the tavern. After entering the building, the officers were directed to appellant by the proprietor. They asked him to step outside the establishment and, as he was leaving the building, both officers observed that he was staggering and his speech was slurred. Appellant was placed under arrest for public drunkenness and was searched by Officer Clark, who discovered a .22 caliber revolver hidden inside appellant's boot.
The question presented is whether or not the appellant was entitled to a directed verdict and peremptory instruction of not guilty for the reason that the indictment was fatally defective.
The indictment charged that appellant, on the fourth day of September, 1978, in Forrest County "did unlawfully, willfully, and feloniously carry a certain deadly weapon, to-wit: a 22 caliber pistol, when he had been previously convicted of a felony, to-wit: the crime of Murder said conviction having been had on the 4th day of January, 1957, in the Circuit Court of Hinds County, Mississippi, and sentenced to a term of Life in the Mississippi State Penitentiary, at Parchman, Mississippi, . . ."
Mississippi Code Annotated Section 97-37-1 (1972) provides the following:
"Any person who carries, concealed in whole or in part, any bowie knife, dirk knife, butcher knife, switchblade knife, metallic knuckles, blackjack, slingshot, pistol, revolver, or any rifle with a barrel of less than sixteen (16) inches in length, or any shotgun with a barrel of less than eighteen (18) inches in length, machine gun or any fully automatic firearm or deadly weapon, or any muffler or silencer for any firearm, whether or not it is accompanied by a firearm, or uses or attempts to use against another person any imitation firearm, shall upon conviction be punished as follows :
(a) By a fine of not less than one hundred dollars ($100.00), nor more than five hundred dollars ($500.00), or by imprisonment in the county jail for not more than six (6) months, or both, in the discretion of the court, for the first conviction under this section.
(b) By a fine of not less than one hundred dollars ($100.00), nor more than five hundred dollars ($500.00), and imprisonment in the county jail for not less than thirty (30) days, nor more than six (6) months, for the second conviction under this section.
(c) By imprisonment in the state penitentiary for not less than one (1) year, nor more than five (5) years, for the third or more convictions under this section.
(d) By imprisonment in the state penitentiary for not less than one (1) year, nor more than five (5) years, for any person previously convicted of any felony, who is convicted under this section." (Emphasis added)
Mississippi Code Annotated Section 97-37-5 (1972) states:
"The possession of any deadly weapon as described in section 97-37-1 by any person who has been convicted of a felony under the laws of this state, any other state, or of the United States, shall be prima facie evidence of a violation of that section."
Appellant first contends that the indictment was fatally defective for the reason that it did not charge he carried "concealed in whole or in part" the deadly weapon, and that he is entitled to be discharged. The State of Mississippi argues it was not necessary to charge that the deadly weapon was concealed, but simply that appellant had possession of same as stated in Section 97-37-5.
The Instruction #S-1, granted at the request of the State, submitted to the jury the issue exactly as charged in the indictment. The Instruction #D-1 , granted at the request of defendant, also submitted the same issue. Neither appellant nor the State contended that the deadly weapon was required to be charged and proved concealed as set forth in Section 97-37-1. The evidence is undisputed that the weapon was carried concealed in appellant's boot.
Mississippi Code Annotated Section 99-7-21 (1972) provides that "All objections to an indictment for a defect appearing on the face thereof, shall be taken by demurrer to the indictment, and not otherwise, . . . ."
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Gandy v. State, 53900
...the jury is impaneled and not afterward. We find no defect in the indictment, but if there was one it has been waived. Jones v. State, 383 So.2d 498 (Miss.1980); Bowen v. State, 309 So.2d 524 Our general concern is whether there is in the record evidence sufficient to support the jury's ver......
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Jones v. State, No. 1999-CP-01207-COA.
...but that Jones knew of the crime with which he was being charged, and since he pled guilty to escape. ¶ 8. In the case of Jones v. State, 383 So.2d 498 (Miss.1980), the defendant claimed his indictment was fatally defective because it omitted a key word. In Jones, the defendant was indicted......