Murphy v. State

Decision Date01 August 1990
Docket NumberNo. 07-KA-59138,07-KA-59138
Citation566 So.2d 1201
PartiesGranville MURPHY, Jr. v. STATE of Mississippi.
CourtMississippi Supreme Court

Edward C. Fenwick, Jackson & Fenwick, Kosciusko, for appellant.

Mike C. Moore, Atty. Gen., Jack B. Lacy, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before ROY NOBLE LEE, C.J., and PRATHER and ANDERSON, JJ.

ANDERSON, Justice, for the Court:

Granville Murphy, Jr. was indicted by a Choctaw County Grand Jury for business burglary. He was subsequently convicted on this charge by a jury and sentenced to five years in the custody of the Mississippi Department of Corrections. He properly filed a Motion for JNOV, but it was denied. He now appeals to this Court assigning two errors:

I. THE COURT ERRED IN FAILING TO GRANT A JUDGMENT NOTWITHSTANDING THE VERDICT OR IN THE ALTERNATIVE A NEW TRIAL BECAUSE THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

II. THE TRIAL COURT ERRED IN FAILING TO GRANT INSTRUCTION D-4 WHICH PRESENTED THE DEFENDANT'S THEORY OF THE CASE.

We find merit in both and thereby reverse and render.

STATEMENT OF THE FACTS

At approximately 3:30 p.m. on Friday, October 16, 1987, Claude King, foreman of the sawmill at Marshall and Henderson, Inc. [M & H Company] in French Camp, Mississippi, called it a day and locked up the mill shed. In this shed were two power saws belonging to the business. When he returned to work the following Monday morning at approximately 6:00 a.m., King discovered that a plywood covering for a broken window of the mill shed was lying on the floor. The door was still locked, but the power saws were gone. At trial he identified the saws recovered by law enforcement personnel as those that were once in the shed.

Gene Thomas testified that on Friday, October 16, 1987, at approximately 7:00 p.m. Murphy came by his house and asked him to go to the store with him. They stopped at the home of Preston Assop which is located approximately 150 yards from M & H Manufacturing. Thomas did not notice any chain saws on the back seat of the car. Murphy told Thomas to get out of the car because he had something to do and did not want Thomas to be involved. Thomas waited for about an hour for Murphy's return. When he returned, Murphy had two power saws in the car. They then went to Murphy's girlfriend's home in Ethel where Murphy took the saws.

Mary Griffin, Murphy's girlfriend, testified that she discovered a chain saw in her storage room on Saturday, October 17. When she asked Murphy to whom it belonged, he told her that it was his, but he did not say where he had gotten it.

Murphy used the saws on Saturday to cut firewood. On Sunday, he approached Charles Pender about selling the saws. On the advice of Mr. Charles Whitfield, Murphy told Pender that he had gotten the saw from a cousin, so that Pender would not think that he had stolen it. Pender testified that he knew Murphy and that shortly after October 16, he bought a chain saw from Murphy for $80. Pender stated that he thought Murphy told him that he had gotten the chain saw from a cousin. He was unable to identify the saw he purchased from the state's exhibits, both Pioneer P42 chainsaws.

Regarding the second saw, Murphy stated that Whitfield told him that he knew someone [Fair] who was willing to buy a power saw. They looked for James Fair but were unable to find him, so Murphy kept the saw a few more days. On October 24, Fair paid $100 for the saw. Murphy told Fair that he had gotten the saw from his cousin. Each time Fair attempted to talk about Murphy's cousin and what business he was involved, Murphy became evasive and would change the subject. He identified one of the exhibits as the saw he bought from Murphy. In addition, Fair denied that Murphy said he found the saw.

The state's final witness, Mike Hutchinson, the newly-elected sheriff of Choctaw County, testified that he recovered a chainsaw from Pender.

The State rested its case, and Murphy moved for a directed verdict, but the trial court denied his motion. The defendant then testified in his own behalf.

Murphy said that on October 16, he was sitting at home waiting for his girlfriend. At approximately 5:00 p.m., they left in his truck and went to his mother's house where they played cards and drank. He remained at his mother's until 8:30, when he and Thomas left to go to the store to get more beer. At Thomas' request, Murphy took him to Assop's house and Murphy continued on to the store. While returning from the store, Murphy stopped at a garbage dump to look for cans to sell. While at the dump, Murphy found two chainsaws in two plastic sacks located behind the dumpster. He figured this was his lucky day. He got them and put them in his truck. These were the same chainsaws that were in evidence.

Murphy returned to pick up Thomas, and they went back to Murphy's mother's house. They remained there until 10:30 or 11 o'clock when they went to Griffin's home. Murphy put the chainsaws in the storage room.

Murphy denied breaking into the M & H Company. On cross-examination, the prosecutor emphasized that the chainsaws were found in plastic trash bags. Moreover, the prosecution pointed to the fact that Murphy had testified that one of the chainsaws cranked and ran without any trouble, and after cleaning the carburetor of the second one, it cranked.

The defense rested, and the jury convicted Murphy of burglary.

PROPOSITION I

THE COURT ERRED IN FAILING TO GRANT A JUDGMENT NOTWITHSTANDING THE VERDICT OR IN THE ALTERNATIVE A NEW TRIAL BECAUSE THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE

DISCUSSION OF LAW

Murphy was indicted under Sec. 97-17-33 MCA (1972) which states in part: "Every person who shall be convicted of breaking and entering ... any shop, store ... or other building ... with intent to steal therein, or commit any felony ... shall be convicted of burglary."

The crime of burglary has two essential elements, the unlawful breaking and entering and the intent to commit some crime once entry has been gained. Ashley v. State, 538 So.2d 1181, 1183 (Miss.1989); Mack v. State, 481 So.2d 793, 795 (Miss.1985); Winston v. State, 479 So.2d 1093, 1095 (Miss.1985). It goes without saying that in this case the state had the burden of proving that Murphy unlawfully went into the mill shed and either stole the chain saws or had the intent to steal them.

The state could rely on circumstantial evidence, but where a case is based wholly on circumstantial evidence, the state must prove Murphy's guilt beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence. Steele v. State, 544 So.2d 802, 808 (Miss.1989) (emphasis added); Leflore v. State, 535 So.2d 68, 70 (Miss.1988); Montgomery v. State, 515 So.2d 845, 848 (Miss.1987). This burden of proof is heavier than when direct evidence is offered. See, e.g., Pharr v. State, 465 So.2d 294, 301 (Miss.1984) (where there is substantial evidence the state is given the benefit of all favorable inferences and as long as reasonable men in the exercise of impartial judgment might reach different conclusions then a motion for jnov should be denied); see also, McFee v. State, 511 So.2d 130, 133-4 (Miss.1987); Davis v. State, 510 So.2d 794, 796 (Miss.1987).

This Court has provided this additional burden in circumstantial cases because, as we have often repeated:

It is fundamental that convictions of crime cannot be sustained on proof which amounts to no more than a possibility or even when it amounts to a probability, but it must rise to the height which will exclude every reasonable doubt; that when in any essential respect the state relies on circumstantial evidence, it must be such as to exclude every other reasonable hypothesis than that the contention of the state is true, and that throughout the burden of proof is on the state. It is our duty here to maintain these principles.

Steele, 544 So.2d at 808 (emphasis added); see also Hester v. State, 463 So.2d 1087, 1093 (Miss.1985).

Accepting the evidence in the light most favorable to the state, including all reasonable, favorable inferences, as we must, the circumstances support the state's hypothesis--that Murphy burglarized M & H Company. But, mere support for the state's hypothesis in a case based entirely on circumstantial evidence is not enough, for it must be of such quality as to rise to the level of excluding every other reasonable hypothesis other than that of guilt.

We have discussed this principle in prior cases. In Wooldridge v. State, 274 So.2d 131 (Miss.1973), for example, we reversed the defendant's burglary conviction. The facts of that case indicate that a burglar alarm "sounded" at approximately 2:00 a.m. When the bank president arrived at the bank, he discovered the lock on the front door knocked off, and the burglar alarm wire had been cut. He then notified the police. Id. at 132. A witness saw the defendant's car parked near the bank at approximately 1:15 a.m. The defendant and a companion were arrested later that morning at approximately 9:40. Two other suspects were also arrested. Id. Because the case was decided on the question of sufficiency of evidence, we noted the following:

(1) No one saw Wooldridge at or in the vicinity of the bank (2) no fingerprints of Wooldridge were discovered at the bank;

(3) there was no loot or stolen goods from the bank found in either vehicle, although a large quantity of tools commonly used by burglars was found in the Oldsmobile of Wooldridge;

(4) said tools were not shown to have been used in the burglary;

(5) there was no direct evidence of any kind linking Wooldridge with the burglary of the bank.

Id. at 133.

This Court concluded that there was no evidence that put the defendant inside the city on the night of the burglary. Moreover, there was no evidence that showed that the defendant was in or at the bank at anytime. In addition, no evidence indicated that he aided and abetted anyone else in the commission...

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