Murphy v. State, 45455
| Decision Date | 29 September 1969 |
| Docket Number | No. 45455,45455 |
| Citation | 226 So.2d 755 |
| Parties | Carl MURPHY, Jr. v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Schribner & Brewer, Tupelo, Murray L. Williams, Water Valley, for appellant.
A. F. Summer, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
The appellant, Carl Murphy, Jr., was jointly indicted, along with Carroll Rogers and Jimmy Deaton, for grand larceny. The charge against Carroll Rogers was dismissed, and a severance was granted as to the defendant Jimmy Deaton. The appellant was tried and convicted, and sentenced to serve five years in the Mississippi State Penitentiary.
There is merit in the following two assignments of error: (5) The Court erred in overruling the motion of defendant-appellant for a mistrial based upon the unwarranted and unfounded cross-examination of defendant-appellant by the State which was highly prejudicial and inflammatory, as shown by the court reporter's transcript; and (6) The court erred in granting instruction No. 2 for the State. Because these constituted fatal errors, we reverse and remand for a new trial.
Davis Gin and Farm Supply Company in Bruce, Mississippi, was broken into on the night of February 22, 1968, and thirty five-gallon cans of Treflan were stolen and carried away.
Woodrow James, the manager of the warehouse of Davis Gin and Farm Supply, identified four cans of Treflan, which were introduced as exhibits as being part of the thirty cans that were stolen. He positively identified these four cans by means of a customer stock number, '6-O-K,' assigned to Davis Gin and Farm Supply by Adkin-Phelps Feed and Chemical Company, Greenwood, Mississippi, the seller.
Doyle Baker, manager of Adkin-Phelps, testified that Davis was the only customer assigned the number '6-O-K' and that Davis would keep this number as long as Davis Gin and Farm Supply was a customer of Adkin-Phelps.
W. T. Robinson, a farmer and dairyman, testified that he bought five five-gallon cans of Treflan from the appellant for $87.50 each, and five five-gallon cans of Treflan from Jimmy Deaton for $50 each. These ten cans were stored in a bedroom with seven other cans carried over from 1967. The five cans purchased from Deaton were sold to Gibson Lee Billingsley. Two of the cans sold to Billingsley were picked up by B. M. Duncan, an investigator with the Mississippi Highway Patrol, at Billingsley's home and were received in evidence as Exhibits A and C.
W. T. Robinson sold two of the cans of Treflan purchased from appellant to Billy Robinson, and these were picked up by the sheriff of Monroe County at Billy Robinson's home and were introduced into evidence as Exhibits B and D. Exhibits A, B, C and D all bore the customer's stock number, '6-O-K,' assigned to Davis Gin and Farm Supply.
It would appear that the court was in error in receiving into evidence Exhibits A and C because these two cans were recovered from Billingsley's home, and Robinson testified that he sold Billingsley only Treflan that he had purchased from Jimmy Deaton. However, this was not a fatal error because the two cans, Exhibits B and D, were identified as part of the five cans purchased from the appellant, and their retail value was $310.00.
The appellant testified that the five cans of Treflan that he sold to W. T. Robinson had been pawned to him by one Wade Luther, who was killed in an automobile accident shortly before the trial of appellant. He testified that he loaned Luther $75 on each can of Treflan and that he advised Luther that he had two weeks in which to redeem the Treflan. The appellant also testified that he was in jail in Marks, Mississippi, the night of February 22, 1968, the night the Treflan was stolen.
There was no direct evidence against the appellant; all of the evidence was circumstantial; and the jury apparently found the appellant guilty because of the inference of guilt arising from possession of recently stolen property, and the record of previous convictions against the appellant.
The appellant freely admitted that he had 'paid a lot of liquor fines' and that he had been convicted of minor traffic violations and simple assault, but when the district attorney asked: 'Were you in Cause Number 16496, Lee County, Mississippi, on November 1963, convicted of the charge of murder,' the appellant replied: 'No, sir.'
The jury was excused, and the...
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Herron v. State, 47589
...Homicide § 312, at 365 (1940).2 See 26 Am.Jur. Homicide § 323, at 373 (1940).3 Barlow v. State, 233 So.2d 829 (Miss.1970); Murphy v. State, 226 So.2d 755 (Miss.1969); Thompson v. State, 84 Miss. 758, 36 So. 389 ...
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Stevens v. State
...be warranted by the evidence. Johnson v. State, 416 So.2d 383 (Miss.1982); Spencer v. State, 348 So.2d 1030 (Miss.1977); Murphy v. State, 226 So.2d 755 (Miss.1969). Where evidence is presented of a physical assault by the victim upon the accused, a manslaughter instruction is warranted. Das......
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Norman v. State, 51995
...does not support a "middle ground" theory. Instructions unsupported by the evidence need not, and should not, be given. Murphy v. State, 226 So.2d 755 (Miss.1969); Cooper v. State, 218 So.2d 874 (Miss.1969). It follows the court properly declined to instruct on simple Norman's fifth assignm......
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Myrick v. State, 47686
...cases cited therein. However, we have reversed some convictions because of prejudicial cross-examination by prosecutors. In Murphy v. State, 226 So.2d 755 (Miss.1969) we held that a question propounded to the defendant about a conviction of murder, when there had never been such a charge ag......