Nicholson v. State, 46561

• Decision Date: 29 November 1971
• Docket Number: No. 46561,46561
• Citation: 254 So.2d 881
• Parties: Floyd L. NICHOLSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 881

254 So.2d 881

Floyd L. NICHOLSON v. STATE of Mississippi.

No. 46561.

Supreme Court of Mississippi.

Nov. 29, 1971.

J. Luther Austin, Laurel, for appellant.

A. F. Summer, Atty. Gen. by Karen Gilfoy, Sp. Asst. Atty. Gen., Jackson, for appellee.

INZER, Justice:

Appellant Floyd L. Nicholson was indicted, tried and convicted for the crime of burglary in the Circuit Court of the First Judicial District of Jones County and was sentenced to serve a term of five years in the State Penitentiary. From this conviction and sentence he appeals. We affirm.

Appellant alleges that the trial court was in error:

1. In refusing to allow appellant's testimony to go to the jury that his was an illegal arrest.

2. In overruling the defendant's motion for a new trial on the grounds that the evidence of the state was insufficient to sustain conviction because it failed to show defendant guilty beyond a reasonable doubt.

3. In requiring the defendant to testify over objection that he had been convicted of manslaughter even though the case was on appeal to this Court and was later reversed.

4. In allowing the jury to separate for more than one hour and go to lunch at the junior college.

Proof on behalf of the state established that about 8 A.M. on January 4, 1970, Buford Dobson, a constable, was patrolling in his pick up truck and saw a car parked behind the county barn. As he approached the barn, the car horn sounded and appellant ran out of the barn and got into the car. Dobson ordered appellant to stop, but the car sped away and he gave chase. He was unable to keep up with the car but did get the tag number. He returned to the barn and notified the sheriff, giving him the tag number. He also called Mr. George Harrison the supervisor of that district, who came to the barn.

Mr. Harrison testified he was at the barn about 6:30 or 7 A.M. making an inspection which was customary when his employees were off duty. At that time everything was in order. At that time the barn door and gasoline tank were locked. When he returned pursuant to Dobson's call, he found the doorknob had been knocked off the barn door, the lock on the gasoline tank had been removed, and the switch lever on the tank had been broken off.

Appellant testified he, his wife and children were on the way to Richton when his car began to run hot, and he stopped at the barn to get some water. He said after he had put the water in the radiator and was at the car door, a pick up truck drove up and stopped. The man in the truck just sat there and did not say anything. He drove off and the pick up followed for about a mile and a half and then dropped back. Shortly after he arrived at the home of his sister-in-law in Richton, a highway patrolman arrived and placed him under arrest for burglary. The sheriff of Perry County and the marshal of Richton arrived shortly thereafter, and he was carried to the county line where he was turned over to the sheriff of Jones County. His wife testified and corroborated appellant's testimony.

Appellant first contends the trial court was in error in refusing to allow him to fully develop before the jury the circumstances of his arrest in order that he might show that his arrest was illegal. We find no merit in this contention. It is not necessary to pause to ascertain whether his arrest was legal, because assuming his arrest was illegal the trial court was correct in ruling the circumstances of his arrest were immaterial. The state did not use any evidence or a confession obtained by virtue of the arrest. Appellant was indicted by the grand jury, was present in court, and was tried after having been fully apprised of the charges against him. He was convicted in a fair trial in the county where the crime was committed, and the jurisdiction of the court was in no way impaired by the manner in which he was brought before it. Of course, a different situation exists where the state attempts to introduce evidence or a confession obtained as a result of an illegal arrest. Under these circumstances the 'fruit of the poisonous tree' doctrine then might well become applicable. Roberts v. State, 186 Miss. 732, 191 So. 823 (1939); Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952).

Appellant next contends the evidence on behalf of the state was insufficient to support the conviction, and the trial court was in error in refusing to grant him a new trial. The basis for this contention is the 'Weathersby Rule' which holds that where the defendant and his witnesses are the only eye witnesses to an alleged crime, their version, if reasonable and not conflicting with the physical facts, must be accepted as true. The fallacy of this argument is appellant overlooks entirely the testimony of Dobson who was likewise an eye witness, and his version contradicted the version of appellant and his wife. In the face of conflicting testimony, the jurors may accept the testimony of some witnesses and refuse that of others, and may accept in part and reject in part the evidence on behalf of the state and on behalf of the accused. Cobb v. State, 235 Miss. 57, 108 So.2d 719 (1959). The jury accepted the testimony on behalf of the state and it was ample to support their verdict of guilty.

We find no merit in the appellant's assignment relative to allowing the district attorney to cross examine him in regard to his recent conviction of the crime of manslaughter. The record reflects co...