Jones v. State, No. 50497

• Decision Date: 10 May 1978
• Docket Number: No. 50497
• Citation: 358 So.2d 414
• Parties: David JONES v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 414

358 So.2d 414

David JONES v. STATE of Mississippi.

No. 50497.

Supreme Court of Mississippi.

May 10, 1978.

Earl Denham, Henry R. Mitchell, III, Ocean Springs, for appellant.

A. F. Summer, Atty. Gen., by Pete J. Cajoleas, Special Asst. Atty. Gen., Jackson, for appellee.

Before ROBERTSON, LEE and BOWLING, JJ.

LEE, Justice, for the Court:

David Jones was indicted, tried and convicted of armed robbery in the Circuit Court of Jackson County, and was sentenced to nine (9) years in custody of the Mississippi Department of Corrections. He appeals and assigns the following as errors committed in the trial below:

(1) The lower court erred in overruling appellant's motion to suppress.

(2) The lower court erred in overruling appellant's motion for directed verdict at the conclusion of the State's evidence.

(3) The verdict was contrary to the overwhelming weight of the evidence.

(4) The lower court erred in refusing appellant's jury Instruction No. 6.

Appellee, State of Mississippi, filed a cross-assignment of error and contends that the trial court erroneously excluded an oral confession which was freely and voluntarily given by appellant and which was offered by the State as direct evidence of appellant's guilt of the crime charged.

On the night of September 26, 1976, Paul Frutelle, an employee of the Trackside Service Station in Ocean Springs, was approached by a person at the unlighted rear of the station who asked him, "Do you see what I got?" Frutelle recognized that the man was holding a gun, he demanded money from Frutelle, took approximately forty dollars ($40.00) from him, and ran into the bushes behind the station. Frutelle was unable to identify his assailant as David Jones because of dim light. He was able to give the approximate size of the robber who had a large gun which Frutelle thought to be a .45 caliber pistol.

The police department was notified of the robbery and Detective Kevin Alves conducted an investigation. Several days later, a confidential informant advised Alves that he heard Jones admit the crime. Detective Alves saw Jones driving an automobile on a city street and stopped him. At that time, Alves had a John Doe arrest warrant. Alves advised appellant of his constitutional rights and informed him that he was suspected of an armed robbery. Jones voluntarily gave Alves permission to search the vehicle and a .22 caliber revolver and a .177 caliber pellet gun on a .45 caliber frame were found. Jones was placed under arrest for carrying concealed weapons and was taken to the Ocean Springs Police Department by Officer Guillott, who had arrived to assist Detective Alves. Jones again was advised of his constitutional rights at the police station in the presence of Captain Billy Thigsten. He freely and voluntarily signed a waiver of rights form, and then made a statement to Alves in his own handwriting, which statement follows:

"I decided to come over to O.S. for awhile, and when I come over I went to Bubbers. I was there about twenty minutes and then I went out to the car and I met the girl. So I talked to her about one hour and then I took her home, and I was there about fifteen minutes, and so I left and went down the road and parked my car over at the parts store and I walked over, told him to give me the money, so he did and I left and went back home and that is how it was the 26th day of September, 1976. The reason why I did it was because I went crazy or something. I don't know what happened and after it were over I got upset and I were The only witness introduced by appellant was Mrs. Rosalie Hayse, mother of appellant's girlfriend. She established an alibi for him.

never nervous so I didn't know what to do. I start to take it back, but I were ashamed so that's the way it was."

I.

Did the lower court err in overruling appellant's motion to suppress the statement by appellant?

Two elements are necessary to establish probable cause in order to arrest an individual without a warrant: (1) determination that a felony has been committed, and (2) reasonable grounds to suspect and believe the person proposed to be arrested committed the felony. McCollum v. State, 197 So.2d 252 (Miss.1967); Clanton v. State, 242 Miss. 734, 137 So.2d 180 (1962). The confidential informant told Detective Alves that he heard appellant admit he committed the robbery. Alves testified that the informant was reliable and trustworthy and that the informant had given him accurate and reliable information on two other occasions which led to the apprehension of criminals. In McCollum, this Court set out the following statements found in annotation to Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, 1736-1739 (1959):

" 'Probable cause' or 'reasonable grounds' justifying an arrest without warrant exist where the facts and circumstances within the arresting officer's knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that a narcotics offense has been or is being committed. It is not required that probable cause be established solely by facts within the personal knowledge of the arresting officer. A combination of information and personal knowledge may raise the inference beyond opinion, suspicion, and conjecture to reasonable probability. All information in the agent's possession, fair inferences therefrom, and observations made by him are pertinent." 197 So.2d at 255.

Appellant was stopped and was told the reason for his detention, even though he was not told in actual words that he was under arrest. We conclude that the officers' action was authorized and legal. Further, the evidence is undisputed that Detective Alves asked appellant, if he might search the automobile, and appellant voluntarily consented to such search. A .22 caliber pistol and a .177 caliber pellet gun were found and were introduced in evidence. On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270, reh. den. 344 U.S. 848, 73 S.Ct. 5, 97 L.Ed. 659 (1952).

The motion to suppress was correctly overruled and the guns and the written statement were properly admitted in evidence.

II.

Did the trial court err in overruling appellant's motion for directed verdict at the conclusion of the State's evidence?

III.

Is the verdict of the jury contrary to the overwhelming weight of evidence?

Appellant entered a motion for directed verdict at the conclusion of the State's evidence which was overruled, and he renewed the motion at the conclusion of all the evidence. We consider the motion in Assignment No. II as being made at the conclusion of all evidence.

In passing on a motion for directed verdict, the trial court considers as true the evidence most favorable to the State together with all reasonable inferences drawn from the evidence, and, if they will sustain a verdict of guilty, the motion must be overruled. Lee v. State, 338 So.2d 395 (Miss.1976); Glass v. State, 278 So.2d 384 (Miss.1973).

Unless the verdict is opposed by a decided preponderance of the evidence or is based on no evidence whatever, the verdict will be allowed to stand. Kitchens v. State The facts, circumstances and inferences constituted a guilt question for the jury and the motion for directed verdict was properly overruled. Likewise, the verdict was not contrary to the overwhelming weight of the evidence.

300 So.2d 922 (Miss.1974). Appellant wrote and signed a voluntary statement that he was in Ocean Springs on September 26, 1976, that he parked his car at a parts store, and that he took the money. There is no evidence to indicate that any...