Smith v. State, 92-KA-00813

Citation646 So.2d 538
Decision Date01 December 1994
Docket NumberNo. 92-KA-00813,92-KA-00813
PartiesGary Paul SMITH v. STATE of Mississippi.
CourtUnited States State Supreme Court of Mississippi

Page 538

646 So.2d 538
Gary Paul SMITH
v.
STATE of Mississippi.
No. 92-KA-00813.
Supreme Court of Mississippi.
Dec. 1, 1994.

Page 539

Rex K. Jones, Hattiesburg, for appellant.

Michael C. Moore, Atty. Gen. and DeWitt T. Allred, III, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

SMITH, Justice, for the Court:

This case involves one Gary P. Smith, who, under cover of darkness, participated in what citizens concerned about wildlife conservation consider absolutely detestable, a "headlighter." Headlighters most often are those individuals who jeopardize the safety of wildlife conservation law enforcement officers in the line of duty afield.

The headlighter, like a thief in the night, would shoot deer by blinding them with a powerful spotlight, rather than face this magnificent creature on its home range, during legal hours, using legal means; even if it means waiting for hours, rain, shine, sleet or snow; and even if it means only enjoying the view provided by nature, and not necessarily the harvesting of game. It matters not to the headlighter whether he shoots a buck, doe or fawn. What does it matter that it's dark and the headlighter cannot see too well or that he might be shooting from a public road. It would be too bad if he hit something else, like a farmer's livestock, another vehicle, or worse yet, a human being.

Gary Paul Smith and his brother, Dale, were arrested on November 27, 1991, by Officer Jim Carver of the Department of Wildlife, Fisheries and Parks. Smith was charged with headlighting deer, hunting on a public road, and hunting from a motorized vehicle, all in violation of the hunting and game laws of the State of Mississippi.

Smith was convicted on January 28, 1992, in the Justice Court of Pearl River County, Mississippi, on all three charges. Smith appealed his conviction to the Pearl River County Circuit Court for a trial de novo, and on June 18, 1992, a jury convicted Smith on all charges. Smith was sentenced to fifteen days in jail and a $1,000.00 fine for headlighting

Page 540

deer; six months in jail and a $500.00 fine for hunting from a public road; and a $100.00 fine for hunting from a motorized vehicle.

Smith, aggrieved by his conviction, appeals to this Court and raises the following issues on appeal:

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO SUSTAIN THE APPELLANT'S MOTION FOR A DIRECTED VERDICT FOR FAILURE OF THE STATE TO PROVE VENUE

II. THE VERDICT OF THE JURY (WAS) AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AS TO THE CRIME OF HUNTING FROM A PUBLIC ROAD

Only issue I of Smith's claims warrants discussion. The evidence against Smith was more than sufficient to support the jury's verdict. The State proved venue on rebuttal and Smith failed to counter the evidence in surrebuttal. After a complete review of the parties' briefs and the record in this case, we find no merit to Smith's claims and must affirm the trial court.

FACTS

Officer Carver testified at Smith's trial identifying Smith as one of two brothers that he arrested on the night of November 27, 1991. Carver testified that he observed a vehicle pull off Sones Chapel Road at Amacker cemetery and cut its headlights off. Carver then testified that the car pulled back onto Sones Chapel Road with its headlights shining over a rye field. He also observed a bright light, coming from the passenger side of the car, scanning the rye field. After shining the spotlight on the field, the Smiths left the area and headed towards State Highway 26. Carver radioed for backup, dropped back a distance, and followed the car.

Officer Carver pulled the Smiths over at the intersection of Sones Chapel Road and Highway 26. Carver approached the passenger's side of the car and observed Gary Paul Smith trying to open the bolt and eject two shells from a .243 caliber rifle. Officer Carver took the gun from Smith, examined it, and found two shells in the clip. Officer Carver also observed a quartz spotlight plugged into the cigarette lighter on the passenger's side of the car. Officer Carver testified that Smith stated: "[Y]ou caught us red-handed." "We're not going to try to deny anything. You caught us fair and square."

Throughout Officer Carver's entire testimony, he never stated that he arrested Smith in Pearl River County, Mississippi, or that the crime took place in Pearl River County, Mississippi.

Troy Stockstill, the State's next witness, testified that he was the county road manager and that he maintained the county roads throughout the district and that he was familiar with Sones Chapel Road. Stockstill stated that Sones Chapel Road was a public road and that it was maintained by public funds. However, Stockstill did not testify that he was the county road manager for Pearl River County, Mississippi, or that Sones Chapel Road was in Pearl River County, Mississippi.

After the State rested, Smith moved the court to peremptorily instruct the jury to find him not guilty and sought the court's dismissal of the charges for failure of the State to prove venue. The judge overruled Smith's motions finding that he did not think that the State had proved venue, but that he would let the record speak for itself. Smith's attorney informed the court that he would proceed with his case but that he did not want to waive the question of the State's failure to prove venue. The trial judge incorrectly ruled that Smith was proceeding with his case, but that he was not waiving the issue of venue.

Smith testified that he and his brother Dale were traveling from Dale's house at Carriere to his house along Sones Chapel Road on the night of November 27, 1991, and pulled into Amacker cemetery to use the restroom. Smith testified that neither he nor his brother shined a headlight or any kind of light across any rye field on Sones Chapel Road.

Page 541

The defense next called Gary Smith's brother Dale to the stand. Dale Smith's testimony was for all practical purposes identical to that of his brother. Dale Smith denied that he or his brother spotlighted the rye field across from Amacker cemetery. Dale Smith testified that he was using his sister's Thunderbird and that he kept the spotlight in the car because the car had vacuum headlights and the lights sometime leaked down and he would have to get under the hood with the spotlight to repair the headlights. Dale Smith testified that he kept the rifle in the car for his own protection.

At the close of his case, Smith renewed his motion for a peremptory instruction of not guilty and again sought dismissal because of the state's failure to prove venue. The motion was denied.

The State called Officer Carver as a rebuttal witness. The officer was called to the stand to rebut testimony that he, Carver, could not have observed the Smith's car from where he was parked. On rebuttal Officer Carver testified that the whole incident took place in Pearl River County, Mississippi. The State rested and the defense did not call any further witnesses.

The jury was instructed as to the law and was excused to begin its deliberations. After completing its deliberations, the jury found Smith guilty of all three charges.

DISCUSSION

Smith claims the State failed to prove venue in Pearl River County and that the court erred in its failure to grant his motion for a directed verdict.

The local jurisdiction of all offenses, unless otherwise provided by law, shall be in the county where committed. Jones v. State, 606 So.2d 1051 (Miss.1992). Smith attacks the sufficiency of the proof of venue and argues that the State failed to prove that the alleged crimes took place in Pearl River County, Mississippi.

The State called two witnesses during their case-in-chief, Carver and Stockstill. Neither of them testified that the crime occurred in Pearl River County. Stockstill, the county road manager, testified that Sones Chapel Road was a public road and that it was maintained by county funds. However, he did not testify that he was the county road manager for Pearl River County, Mississippi, or that Sones Chapel Road was located in Pearl River County, Mississippi.

Proof of venue is indispensable to a criminal trial and it may be proved by direct or circumstantial evidence. Jones v. State, 606 So.2d 1051, 1055 (Miss.1992); Griffin v. State, 381 So.2d 155, 158 (Miss.1980); Jackson v. State, 246 So.2d 553, 555 (Miss.1971). In this case, none of the witnesses testified during the State's case-in-chief that the crimes took place in Pearl River County, Mississippi.

The only place in the record during the State's case-in-chief where testimony was elicited concerning the county of proper venue occurred on cross-examination of Officer Carver, who was asked:

Q. Okay. Of course, there's nothing unusual about people in Pearl River County or any other Country [sic] carrying rifles in their vehicles; is it?

A. Nothing so unusual about it.

This question by Smith's attorney appears to have been an attempt to establish that it was commonplace in Pearl River County for people to carry loaded rifles in their car. It is certainly logical that the jury could have inferred that the entire incident occurred in and that Gary was arrested in Pearl River County, Mississippi, or alternatively, the jury could have found that it was common practice for people to carry guns in their cars in Pearl River County and not necessarily be guilty of headlighting and hunting from a public road in a motorized vehicle. Sanders v. State, 286 So.2d 825, 827 (Miss.1973).

Additionally, the jury heard from Troy Stockstill, the county road manager of Pearl River County, who testified that Sones Chapel Road was a public road maintained by county funds. The jury, composed of Pearl River County residents, could have possibly inferred that venue was established in Pearl River County, considering Stockstill's testimony, coupled with Officer Carver's testimony that the incident occurred on Sones Chapel

Page 542

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