Prueitt v. State
| Decision Date | 03 April 1972 |
| Docket Number | No. 46746,46746 |
| Citation | 261 So.2d 119 |
| Parties | Fred Wesley PRUEITT v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Garner, Whitten & Garner, Frank Trapp, Hernando, William A. Gowan, Jr. (argument only), W. S. Moore, Jackson, (argument only), for appellant.
A. F. Summer, Atty. Gen., by William Jeff East, Sp. Asst. Atty. Gen., Jackson, for appellee.
This case comes from the Circuit Court of Tate County, where appellant was convicted of grand larceny and was sentenced to serve a term of five years in the State Penitentiary, with credit to be given for previous confinement. We affirm.
Prior to September 25, 1969, burglaries had been committed in the northern ten counties of Mississippi, and also in Arkansas, Tennessee, and Kentucky-in areas surrounding the City of Memphis. In and around Batesville, Mississippi, a number of houses had been denuded of furniture-even of pictures hanging on the wall. Many of these affairs had been reported to the police department in Memphis; and undertaking to catch the guilty parties, the officers of Mississippi, including an investigator of the State Highway Patrol, were investigating the burglaries.
Prior to the date aforesaid, an informant had called an investigator in the City of Memphis and had reported the purchase of a television set from the appellant. It was requested that the investigator look at the set and ascertain, if he could, whether it had been stolen or whether it was the property of the appellant. The officer called the distributor for the particular type of television and was advised it had been sold to a store at Batesville. On calling the store, the official was advised the set had been sold to a party at or near Batesville from whom it had been stolen. The investigator for the Mississippi Highway Patrol was contacted, and he advised that he had been working on this particular burglary. At the request of the Memphis official, the Highway Safety Patrolman came to Memphis and brought a Mississippi affidavit and warrant for the appellant.
Thereafter, the Memphis official appeared before a judge of the General Sessions Court with an affidavit for a search warrant and with the warrant to be signed by the judge. From the home of the owners of the television set, there had also been stolen a camera and a radio. Having secured the issuance of the search warrant, the officers then went to the home of appellant, served him with a copy of the warrant and searched for the two articles named in the original search warrant. These two articles were not found. However, many stolen articles were found, including pictures, articles of furniture, equipment, tools, and miscellaneous items. The officer of the Mississippi Highway Patrol had been working on burglaries in and around Batesville and in northern Mississippi, and many articles in open view in the home of appellant had the same appearance as articles stolen from around Batesville. It soon became known rather generally what was occurring, and people came and identified property as having been stolen from them. There were many instances of this kind. Many tools and considerable equipment belonging to one Sinquefield were identified by him.
After many articles thus had been identified and taken by those claiming to be the owner, the owners were permitted to depart with said property; but before leaving, pictures were taken of each one of them beside the property identified. Appellant was tried in the Circuit Court of Tate County, Mississippi, as hereinbefore stated. He was convicted and the case is appealed here.
It is said that the appellant was not afforded a trial and was therefore denied those constitutional rights inherent in a trial, including a trial by jury. It is further said that there was no arraignment.
There was presented to the court both a motion for a continuance and a motion to suppress the evidence obtained by the search. The entire case was fully explored of the two hearings which were held before the judge; and at the conclusion of the hearings, the court having overruled both of said motions, the defendant and the State of Mississippi entered into the following stipulation:
It is stipulated and agreed by and between the Defendant and the State of Mississippi that all the evidence that has been adduced by the Defendant and the State of Mississippi on each of the motions, including the Motion to Suppress Evidence Based on the Search, and all the other evidence that has been adduced in this cause can and shall be considered by the Court as if the same testimony, objections, and all proceedings thereto, as adduced on each of the said motions were produced in chief in behalf of the State of Mississippi or the Defendant and may be used by the Court to determine the Defendant's guilt or innocence.
Thereupon counsel for appellant asked permission to call appellant to testify in regard to the stipulation. He, thereupon having been sworn, testified:
Q. Mr. Prueitt, has an agreement with the State of Mississippi and the Defendant to try this case before the Circuit Judge without intervention of a Jury been executed?
A. Yes, sir.
Q. Did you execute this agreement?
A. I did, yes, sir.
Q. Did you talk this matter over with your lawyers and were you advised by them of the fact that you were waiving a trial by jury but no other rights?
A. Yes, sir.
Q. And you agree to that?
A. Yes, sir.
Q. No further questions.
He was also cross-examined by the district attorney as follows:
Q. . . . You do understand, Mr. Prueitt, that you do have a right for a jury trial, for a jury to say whether you are guilt (sic) or not guilty, and that would be 12 men?
A. Yes, sir.
Q. All 12 would have to concur that you were guilty beyond a reasonable doubt before they would convict you,
A. Yes, sir.
Q. Knowing all of those things, you still wish to enter this stipulation that has been stipulated to by counsel that you are waiving that right and you are asking Your Honor to decide the case?
A. Yes, sir.
None of the questions hereinabove discussed are jurisdictional; and we hold that by the procedure above set forth, appellant waived any such defects.
Pursuant to the stipulations, the trial judge consider the evidence, adjudicated that the appellant was guilty and later sentenced him. The judgment of conviction and the sentence were entered upon the minutes of the court.
It appears that the original indictment described certain property. During the hearing, a motion to amend by including additional property owned by the prosecuting witness, Sinquefield, was made and sustained by the court.
The judge dictated into the record permission to make such amendment, but we are unable to find any order permitting same. However, testimony as to the other articles added to the indictment was introduced; and there was no objection. Neither was this issue incorporated in the assignment of errors or in the briefs herein filed. We hold that under the circumstances there was a waiver as to this order.
It is argued that there is no testimony in the record showing that the value of the property is more than $100, which is necessary to establish grand larceny. Mr. Sinquefield testified that the heater which was stolen and here involved was valued at $66.95. The assertion is made that this is the only evidence of value in the record. Counsel is mistaken as to this issue. The owner of the property was asked the value of the items that were returned to him by the police department and which were covered by the indictment; his answer was: 'About $300.00.' In addition to this, a list of equipment identified by the witness as recovered by him was introduced as Exhibit 5 to his testimony; and under the word 'recovered' on said list is shown certain property with figures beside each article presumably values, far exceeding the sum of $100. Further, there is in the record a picture of Mr. Sinquefield with his property that was recovered, the picture also being an exhibit. Several of the articles are shown in these pictures. On this entire record, it is apparent that there was sufficient proof to show the value of the property to be over $100.
It is also said that no affidavit for search warrant was introduced. The affidavit and search warrant were printed forms on one sheet of paper, one being at the top of the page and the other below that form. This sheet was introduced into evidence and appears in the record as an exhibit.
Thomas v. State, 200 Miss. 220, 26 So.2d 469 (1946) is authority for the statement that all matters of procedure not jurisdictional are waived when cases are handled in the manner in which this one was.
The assignment of errors only attacked the search warrant, its execution, the reasonableness of the search, and charged lack of probable cause for its issuance.
The reasons given in the affidavit for search warrant for believing the property sought to be in the possession of appellant were stated as follows:
(R)eceived information on September 22, 1969, from a reliable citizen who had purchased a Zenith color television, Serial No. 5029679, from the said Fred Wesley Pruitt, alias Fred Wesley Preuitt, said color television having been stolen in the course of a burglary of a home in Batesville, Panola County, Mississippi, at the time of the commission of said burglary in Batesville, Panola County, Mississippi, there was taken a Nikon camera and one GE table model AM-FM radio, and affiant has reason to believe the said camera and radio is at 2974 Arrendale Street, Memphis, Shelby County, Tennessee.
In addition to this, the officer, having been sworn when requesting the judge of the Court of General Sessions to issue the warrant, testified as to the facts leading up to the request for the search warrant. He testified before the judge and disclosed to him the name of the informant. This informant was known to the judge, and the judge knew of informant's reliability. This was...
To continue reading
Request your trial
-
Hill, In re
...this testimony on grounds that the corpus delicti was not yet established but the matter was not raised on direct appeal. Prueitt v. State, 261 So.2d 119 (Miss.1972), held that the Mississippi Supreme Court Rules give this court the option to raise "plain errors" not assigned Petitioner als......
-
Caldwell v. Mississippi
...below, although somewhat cryptic, argues against the position urged by respondent. The State Supreme Court stated: "Prueitt v. State, 261 So.2d 119 (Miss.1972), is a case in which we dealt with the situation where counsel sought to argue a question not raised by the assignment of error. Wri......
-
Lockett v. State
...677 (Miss.1983); Read v. State, 430 So.2d 832, 834-35 (Miss.1983); Wilborn v. State, 394 So.2d 1355, 1357 (Miss.1981); Prueitt v. State, 261 So.2d 119, 123 (Miss.1972); see also Stringer v. State, 491 So.2d 837, 845 (Miss.1986) (Robertson, J., concurring); Accord Drane v. State, 493 So.2d 2......
-
Read v. State
...independent police investigation. and is supportive of a search warrant. Powell v. State, 355 So.2d 1378 (Miss.1978), Prueitt v. State, 261 So.2d 119 (Miss.1972). Subsection 3(c) of the affidavit contains the following C. Your affiant having received the information ... verified this inform......