Mallette v. State, No. 49882
| Decision Date | 07 September 1977 |
| Docket Number | No. 49882 |
| Citation | 349 So.2d 546 |
| Parties | Thomas MALLETTE v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Cumbest & Cumbest, John L. Hunter, Pascagoula, for appellant.
A. F. Summer, Atty. Gen. by Catherine W. Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before SMITH, BROOM and LEE, JJ.
LEE, Justice, for the Court:
Thomas Mallette was indicted and tried for murder in the Circuit Court of Jackson County. From a conviction of manslaughter and sentence of eighteen (18) years, he appeals here.
Appellant assigns the following errors in the trial of the case:
(1) The trial court erred in failing to grant appellant's motion to dismiss for the reason that two mistrials had resulted because of hung juries, and the trial court erred in failing to allow proof of that fact on behalf of appellant.
(2) The trial court erred in allowing the State to impeach its own witness by improper means.
(3) The trial court erred in failing to sustain appellant's motion for a directed verdict.
(4) The trial court erred in admitting in evidence photographs of the deceased's nude body.
(5) The trial court erred in granting State's Instruction S-4 (a manslaughter instruction) which was not supported by the evidence.
(6) The trial court erred in refusing to grant appellant's Instructions 1-D, 4-D, 6-D, 8-D, 9-D and 11-D.
On March 27, 1974, the Jackson County Sheriff's Office received a call at approximately 3:00 or 3:30 p. m. indicating that there had been a suicide at the Thomas Mallette residence (a small house trailer). Officers responded to the call and, upon arriving at the scene, appellant met them in the front yard and told them that his wife, Betty Jean Mallette, had committed suicide by slipping in the bathtub. Appellant appeared to be upset, his clothes were wet, a pocket was torn, there were some bloodstains on his clothing, and he was intoxicated. When the officers entered the trailer, they found the nude body of Mrs. Mallette on a sofa in the front room. She had been brutally beaten, bruises and cuts appearing over most of her body. Bloodstains were found on clothes and pillowcases and in all the rooms except the bathroom, which contained a shower, lavatory, and commode, but no bathtub. There was no evidence to indicate the deceased had been in the bathroom. Clothes and broken glass were scattered around the trailer, a bloodstained 2X4 with hair on it, wrapped in a newspaper, was found in the front room under a pile of clothes. In the same room, a broom was found with blood and red hair (the victim was red-headed) on it. Marks on the floor of the front room indicated it had been swept with a broom. The body appeared to have been wiped or cleaned up, and four-inch marks (bruises) could be seen on it. Autopsy of the body indicated that the causes of death were punctures and collapse of the lungs (by broken ribs) and hemorrhages of the brain. Alcohol content of the body was .265 mg. percent. Appellant gave no statement other than the initial statement that his wife committed suicide by slipping in the bathtub, nor did he testify on the trial. There were no eyewitnesses to the homicide.
I.
Did the trial court err in refusing to dismiss the case because of two previous mistrials?
At the outset of the trial, appellant filed a motion to dismiss the cause on the ground that it had been tried twice before, that both trials resulted in mistrials (hung juries) and that he had been placed in double jeopardy. Appellant attempted to introduce proof of such facts, but the trial court declined to permit same. The record reflects that there were two mistrials and, therefore, there was a proffer of that evidence. Jones v. State, 306 So.2d 57 (Miss.1975).
Appellant argues that permitting the State to try a defendant twice or more enables the State to "shop" for a jury until an accused is convicted and circumvents the constitutional prohibition against double jeopardy. However, this is a two-way street. Experienced practitioners sometimes refer to the "sinker juror." If this contention were sound, defendant might be able to impanel a sinker on the jury during two trials, and the State could never proceed to a final judgment in the case.
Art. 3, § 22, Miss.Const.1890 provides:
"No person's life or liberty shall be twice placed in jeopardy for the same offense; but there must be an actual acquittal or conviction on the merits to bar another prosecution."
Suffice it to say, in order for a plea of former jeopardy to avail, it must appear that the defendant was actually acquitted or convicted in a former trial on the merits of the crime for which he is again sought to be convicted. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); Bounds v. State, 271 So.2d 435 (Miss.1973); Smith v. State, 158 Miss. 355, 128 So. 891 (1930); State v. Moor, 1 Miss. (Walk.) 134 (1823).
II.
Did the trial court commit error in allowing the State to impeach its own witness by improper means?
The State introduced as a witness, Mary Ellen Mallette, the eleven-year-old daughter of appellant and deceased, who testified that she left the trailer on the morning of the homicide at about 7:00 a. m., that her mother and father were in the trailer, and that she did not return during the rest of the day. In the absence of the jury, a stipulation, which was introduced at a previous trial, was placed in the record to the effect that after Mary Ellen Mallette left the trailer at 7:00 a. m., she returned around noon and her mother (deceased) was asleep on the sofa and her father was asleep in bed. Subsequently, the district attorney, who participated in the previous trials but not in this trial, testified to facts told him by Mary Ellen Mallette. They were substantially the same as those contained in the stipulation. The State did not claim surprise or that she was a hostile witness, and no predicate was laid for the testimony. However, no objection was made, and, since failure to enter timely objection constitutes a waiver of the objection, there is no merit in this contention. Kelly v. King, 196 So.2d 525 (Miss.1967).
III.
Did the trial court commit error in overruling appellant's motion for a directed verdict?
All the evidence introduced on the trial was circumstantial evidence except the statement of appellant that his wife slipped in the bathtub and committed suicide. There was no proof that any persons had been in the trailer other than appellant and the deceased, and all the evidence was sufficient to present a question for the jury to determine whether or not appellant killed his wife. Burrill v. State, 328 So.2d 334 (Miss.1976); Brown v. State,293 So.2d 425 (Miss.1974); Sanders v. State, 286 So.2d 825 (Miss.1973); Pryor v. State, 239 So.2d 911 (Miss.1970). The trial court correctly overruled the motion for a directed verdict.
IV.
Did the trial court err in admitting...
To continue reading
Request your trial
-
Williams v. State, 54294
...be given only if they are applicable to the facts developed in the case. Norman v. State, 385 So.2d 1298 (Miss.1980); Mallette v. State, 349 So.2d 546 (Miss.1977). The instruction would not have been responsive to the evidence introduced at trial and it was properly At the sentencing phase,......
- Smith v. Mississippi State Highway Com'n, 53493
-
Simpson v. State
...allow the conviction of manslaughter to stand. ¶ 38. Patricia argues that the rule set forth by our supreme court in Mallette v. State, 349 So.2d 546, 550 (Miss. 1977), which states that a defendant cannot complain of a manslaughter verdict when the evidence would support a conviction of mu......
-
Edlin v. State
...single juror instruction is not error where the principles of that instruction are contained in other instructions. See Mallette v. State, 349 So.2d 546, 550 (Miss.1977). In Mallette, we addressed the failure to give a one juror instruction and Instruction 9-D is the one-juror instruction. ......