Ladnier v. State, 43753

• Decision Date: 24 January 1966
• Docket Number: No. 43753,43753
• Citation: 182 So.2d 389,254 Miss. 469
• Parties: Johnny Elwood LADNIER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 389

182 So.2d 389

254 Miss. 469

Johnny Elwood LADNIER v. STATE of Mississippi.

No. 43753.

Supreme Court of Mississippi.

Jan. 24, 1966.

Albert S. Johnston, III, Pascagoula, for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.

SMITH, Justice.

The appellant, Johnny Elwood Ladnier, was indicted in Smith County for the crime of burglary. He was arraigned upon that charge and entered a plea of not guilty. Upon his trial, he was convicted of the crime of attempted burglary, and for that offense was sentenced to serve a term of four years in the penitentiary.

This appeal is from the judgment of conviction entered by the Circuit Court of Smith County.

Several grounds have been assigned for reversal.

It is first contended that the evidence of appellant's guilt was not sufficient to present a question for the determination of the jury and that this motion for a directed verdict of not guilty should have been sustained.

The evidence against appellant was circumstantial and was given by a confessed accomplice. There was no eyewitness identification of appellant as a participant in the actual attempt to burglarize the store. Nevertheless, we are unable to say that the testimony of the accomplice, although in many respects unsatisfactory, is so entirely unbelievable that the jury might not be warranted in accepting it. After a careful review and consideration of the whole record, we have concluded that the evidence for the prosecution was sufficient to go to the jury upon the question of appellant's guilt or innocence.

Appellant next cites Smith v. State, 251 Miss. 241, 169 So.2d 451 (1964), in support of an assignment that it was prejudicial error for the trial court to allow the sheriff to assist the district attorney in selecting the jury, and also permit him to provide the deputy or bailiff to have charge of it.

It is insisted that, since Mississippi Code Annotated section 4240 (1956) provides that the sheriff shall be the executive officer of the court and 'attend all the sessions thereof with a sufficient number of deputies or bailiffs * * *' it must be assumed that the jury was in charge of a deputy or bailiff selected and employed by the sheriff who had participated with the district attorney in the selection of the jury on behalf of the prosecution. We would not be warranted in making the suggested assumption. The facts relating to this assignment are not sufficiently developed in the record to permit its determination upon this appeal.

However, the case must be reversed upon other grounds and remanded for a new trial.

During the course of appellant's testimony before the jury as a witness in his own behalf, the court reprimanded him severely and repeatedly for demeanor apparently considered to be a breach of decorum. This action upon the part of the court has been assigned as error.

It is essential, of course, that the trial court maintain good order and suppress unseemly conduct, and impose appropriate punishment upon those who may be guilty of it, where required by the circumstances.

The position and prestige of the court and consequent effect upon the jury of the court's attitude toward the defendant in a criminal trial, demand that the power to reprimand and discipline, particularly when applied to the defendant himself, be exercised with circumspection.

When an incident occurs during the course of a trial which the court considers to warrant a reprimand or the disciplining of a defendant, by far the better practice is to retire the jury before anything is said or done toward that end.

As we have said, proof of the defendant's guilt in this case was circumstantial and rested upon the testimony of a confessed accomplice. The question is close as to the sufficiency of the...