Sumrall v. State, 47151
| Decision Date | 05 February 1973 |
| Docket Number | No. 47151,47151 |
| Citation | 272 So.2d 917 |
| Parties | Gary SUMRALL v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Lampkin Butts, E. R. Alley, Laurel, for appellant.
A. F. Summer, Atty. Gen., by T. E. Childs, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
This is the second appearance of this case here. The decision of the Court on the former appeal is reported at 257 So.2d 853 (Miss.1972).
Following remand, Smurall was retried on the charge of selling and delivering marijuana, again convicted and sentenced to serve two years in the penitentiary.
The testimony of the witnesses on retrial as to the material facts differed in no significant particular from that given by them upon the original trial. There is little conflict in the evidence as to what occurred, and, therefore, no real dispute as to Sumrall's actions on the occasion in question. It was necessary only that the jury decide whether Sumrall acted innocently or whether he was an accessory in the sale of marijuana by Dozier to Mozingo and therefore that his involvement was criminal in nature. On the record, it is a close question as to whether or not the evidence of his guilt was sufficient to support the verdict of guilty. Ostensibly at least, Sumrall was aiding his friends, the purchasers, in buying the marijuana rather than Dozier, the seller. His possession of the marijuana was 'fleeting,' a word recalled from decisions in the days of prohibition. Fortuitously, he was sitting between the purchasers and the seller, and possessed the marijuana only momentarily in passing it from one to the other.
In reversing Sumrall's former conviction, this Court said:
(I)t should be pointed out that the district attorney in the trial of this case attempted to inject into the trial other matters which had nothing to do with the issue being tried. Although the court sustained the objections to these matters, on a retrial of the case the prosecuting attorney should refrain from doing or saying anything that would tend to cause the jury to find the defendant guilty due to matters other than evidence relative to the crime. (257 So.2d at 854).
The same District Attorney handled the prosecution on the second trial and it is reasonable to assume that he was aware of these cautionary words. Moreover, he was familiar with the testimony of the witnesses touching the events leading up to and following the sale of the marijuana by Dozier.
In the former case, this Court also said:
Mozingo was also allowed to testify that he rolled some cigarettes from the marijuana he had bought the night before, appellant (Sumrall) rolled some cigarettes from the marijuana he brought with him, and that they, along with others, went into the living room and smoked the marijuana. The state also attempted to prove by this witness that he had procured marijuana from appellant on another occasion some months prior to the alleged offense charged. The court finally sustained appellant's objection to this testimony and instructed the jury to disregard it, but refused to grant a mistrial. (257 So.2d at 853).
While on direct examination by the District Attorney during the second trial, Mozingo testified:
Yes, sir, Gary Sumrall said that the day before or possibly the day before that-at any rate, this person by the name of Jack Dozier had accosted or asked him his name and he said to him, 'I am Gary Sumrall,' and he had sold Gary Sumrall some grass I believe and that they had been smoking it prior to this-
A timely objection was interposed and was overruled by the court, who nevertheless instructed the jury 'to disregard that statement in its entirety about some previous sale.' If it is assumed that this admonition was sufficient to remove from the jurors' minds the harmful effect of this testimony, the jury was not instructed as to the statement 'that they had been smoking it prior to this.' A motion for a mistrial at this time was also denied.
Following this incident, as the direct examination of Mozingo continued, the District Attorney interrupted the witness to ask what he, Mozingo, Sumrall, and the others, had been doing before they left the apartment. The witness answered, very much as he had done in the first trial, that they had passed around one of the cigarettes of marijuana.
Again there was an...
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