McCray v. State, 48676
| Decision Date | 20 October 1975 |
| Docket Number | No. 48676,48676 |
| Citation | 320 So.2d 806 |
| Parties | Leroy McCRAY v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Samuel H. Wilkins, G. Garland Lyell, III, Jackson, for appellant.
A. F. Summer, Atty. Gen. by John C. Ellis, Special Asst. Atty. Gen., Jackson, for appellee.
Before GILLESPIE, SMITH and ROBERTSON, JJ.
Leroy McCray was convicted in the Circuit Court of the First Judicial District of Hinds County, Mississippi, of the crime of murder, and was sentenced to life imprisonment in the penitentiary.
About 7 o'clock p.m. on October 8, 1972, William H. Kelly was killed during the course of an armed robbery. Kelly owned and operated the Beasley Road Shopette on Beasley Road. McCray and Clem Jimpson were jointly indicted, but were tried separately and Jimpson was convicted on December 7, 1972. Two eyewitnesses placed the appellant and Jimpson together at Beasley Road Shopette, the scene of the crime, just minutes before the shooting and immediately after it. Jimpson pulled a pistol on Kelly, and Kelly drew his pistol in defense. Several shots were exchanged. Jimpson was not hit, but Kelly was killed with one shot which entered his back in the right shoulder area.
Jimpson and McCray were both picked up on October 9, 1972, the day after the shooting, and about 9:30 p.m. that night, after his Miranda rights had been fully explained to him and he had signed a written waiver, McCray made a full statement of his part in it. The statement was reduced to writing, signed by McCray and witnessed by Lt. Glenn Cumberland and Sgt. James D. Taylor of the Jackson Police Department. In his statement, McCray said he and Jimpson went to the Shopette together, that Jimpson and Kelly exchanged shots and that he, McCray, drove Jimpson from the scene to their respective homes. McCray stated that he and Jimpson lived on Edwards Avenue across the street from each other. Cumberland and Taylor both testified that his rights were read to McCray and explained to him, and that he was given a copy of his rights to read before he signed the waiver. Both officers testified that no threats were made, no duress applied, and no promises made.
The first assignment of error was that the trial court should not have admitted into evidence the confession because McCray did not intelligently waive his rights, especially his right to remain silent and his right to have counsel present. This ground of objection was asserted for the first time on appeal. At the preliminary hearing, the grounds of objection to the admission of his statement were that there was not a lawful arrest and that the corpus delicti had not been proved.
This Court said in Stringer v. State, 279 So.2d 156 (Miss.1973):
'The statement of one or more specific grounds of objection to the introduction of evidence is a waiver of all other grounds of objection.' 279 So.2d at 158.
We also said upon the first appeal of this case, wherein the conviction and sentence were reversed because the conviction of a co-indictee, Clem Jimpson, was improperly admitted into evidence, that:
McCray v. State, 293 So.2d 807-08.
The second assignment of error was that the trial court erred in refusing to grant appellant's instructions 12, 13, 14 and 15. These instructions were properly refused by the court. They all had to do with a completely circumstantial evidence case, and required that the jury be able to find appellant guilty 'beyond every reasonable doubt and to the exclusion of every reasonable hypothesis consistent with his innocence.' There was both direct and circumstantial evidence in this case. The confession itself was direct evidence.
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Bullock v. State, 51937
...of the statements made by appellant and his own testimony adduced in the trial on the guilt phase of the case. See McCray v. State, 320 So.2d 806 (Miss.1975). The trial court granted an instruction known as the "two-theory instruction" which should not be given, except in purely circumstant......
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...by direct evidence. This instruction should be granted only when the evidence presented by the state is circumstantial. McCray v. State, 320 So.2d 806 (Miss.1975). In the instant case the evidence presented by the state was the testimony of two eyewitnesses who identified the defendant as o......