Thomas v. State, 47495
| Decision Date | 12 November 1973 |
| Docket Number | No. 47495,47495 |
| Citation | 285 So.2d 148 |
| Parties | Bernice THOMAS v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Ramsey, Bodron & Thames, Vicksburg, for appellant.
A. F. Summer, Atty. Gen., by Karen Gilfoy, Sp. Asst. Atty. Gen., Jackson, for appellee.
Bernice Thomas, the Appellant, was jointly indicted with Johnny L. Chapman, Harriett Cannon, Bobbie Nell Hughes and Edna E. Robinson for grand larceny. A severance was granted and Bernice Thomas was tried at the November, 1972, term of the Circuit Court of Warren County. The jury returned a verdict of guilty, and appellant was sentenced to serve a term of four years in the Mississippi State Penitentiary.
About Noon, Saturday, May 138 1972,
About Noon, Saturday, May 13, 1972, dressed in white uniforms, one in an aquagreen uniform and one in a yellow uniform, entered Jitney Jungle No. 2 on U.S. Highway 61, south of Vicksburg, Mississippi. There were three checkout stands at the front of this supermarket. The appellant inquired of Shirley Dement, the cashier at cash register No. 2, as to the location of lemon ammonia. Mis. Dement left her checkout stand and walked down an aisle with the appellant. There was no lemon ammonia on the shelf.
As Mrs. Dement turned to go back to her cash register, appellant inquired as to whether lemon Joy was the same as lemon ammonia, and after Mrs. Dement explained the difference, appellant asked about Knox gelatin. Mrs. Dement asked the assistant manager to show appellant where the Knox gelatin was, and she returned to her checkout stand.
Appellant bought a box of Knox gelatin at checkout stand No. 3 operated by Helen McKenzie. During this entire time checkout stand No. 1 was unattended, Shirley McDuff, the operator, having gone to the back of the store. When she returned to her checkout stand, she immediately discovered that about $900.00 had been taken from cash register No. 1.
Willie Nicholson, Jr., a 19-year-old bag boy for the store, had noticed the four uniformed women when they entered and when they left. All four had left in a two-tone green Plymouth Fury, with a Rankin County license tag and driven by a black male.
The store manager telephoned the sheriff of Warren County and gave him a description of the car, the four women and the driver. The sheriff dispatched his deputy, Ed Reed, to Jitney Jungle No. 2 to get further details about the theft. In the meantime, Sheriff Barrett put out a description of the car and the occupants over the police radio.
A short time later, the Mississippi Highway Patrol advised Sheriff Barrett that Patrolman Martin had stopped a car fitting the description and occupied by four uniformed women and one man on Interstate No. 20 just east of Clinton. Sheriff Barrett, Deputy Reed and Mrs. Shirley Dement arrived at the stopped Plymouth Fury a short time later, and Mrs. Dement immediately identified the four uniformed women as being the four who were in Jitney Jungle No. 2.
Under questioning by Sheriff Barrett, Harriett Cannon, one of the four uniformed women, took out a wad of bills from her brassiere. The money was immediately counted and the total was $914. The serial numbers of a five dollar bill, a ten dollar bill and a twenty dollar bill placed in cash register No. 1 that Saturday morning had been recorded by the store manager, Joyce Jones, and these marked bills were found in the $914.00 recovered when it was recounted at the Warren County jail.
The four women, including the appellant, and Johnny Chapman, the only male, were taken to the Warren County jail. Harriett Cannon there told Sheriff Barrett that the money belonged to all of them and that they had made it as prostitutes in New Orleans. Sheriff Barrett asked each, including the appellant, if that were true, and the appellant testified that she and the others all nodded their heads.
Bernice Thomas contends that Harriett Cannon had the money, that she (Bernice) knew nothing about the plan to rob, did not aid or assist Harriett Cannon, and just happened to be in the getaway car before and after the robbery, just happened to be in the store when it was robbed, and that it was just a case of guilt by association.
The only assignments of error that we need notice are:
1. It was error to allow Willie Nicholson, Jr. to testify about an extrajudicial identification of appellant by him at the Warren County jail;
2. It was error to permit the county attorney to comment on the pretrial silence of the defendant in his argument to the jury, and in failing to grant defendant's motion for a mistrial because thereof; and
3. The trial court erred in failing to instruct the jury to disregard the comments made by the district attorney in his closing argument when he told the jury that those persons who had been indicted with Defendant but who had been tried separately had all been held accountable for their actions and Defendant should be held accountable for hers, and that it was error for the court to overrule the defendant's motion for a mistrial.
At the trial, Shirley Dement testified that the appellant was the one who had inquired of her about lemon ammonia, lemon Joy, and Knox gelatin, and that she was facing her during most of this time. Mrs. Dement's identification of appellant was based on her observation of her in the store. Helen McKenzie positively identified the appellant as the one who purchased a box of Knox gelatin for 30 cents at her checkout stand.
V. P. Martin, Mississippi Highway Patrol, testified that the appellant was driving the Plymouth Fury at the time he stopped it for speeding on Interstate 20, and that he gave her a traffic ticket for speeding. Appellant was also identified by Sheriff Barrett and Deputy Sheriff Reed.
In fact, the appellant herself took the stand and, under questioning by her own counsel, freely admitted that she was the one who had inquired about the lemon ammonia, lemon Joy and Knox gelatin; that she was the one who had purchased a box of Knox gelatin in Jitney Jungle #2; that she was the one driving the car at the time it was stopped by the highway patrolman for speeding; that she did agree when questioned at the Warren County jail that they had made the money as prostitutes in New Orleans. Appellant further testified under questioning by her own attorney:
'Q. What happened then when you got to the jail in Vicksburg?
'A. Well, as the sheriff was asking us our names and everything, he asked us where the money come from. So Harriet told him we had got the money from prostituting in New Orleans, and the story about we caught a bus and all of this. So he said something to the effect, 'Is that what all you all have to say?' So we all nodded our heads.
Appellant admitted that ...
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Henderson v. State, 52804
...was cured and the trial court properly overruled the motion for a mistrial. Reid v. State, 266 So.2d 21 (Miss. 1972); Thomas v. State, 285 So.2d 148 (Miss. 1973). However, in the final analysis, each case must be decided on its own peculiar facts. If the only error presented in this case wa......
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Collins v. State, 52974
...was cured and the trial court properly overruled the motion for a mistrial. Reid v. State, 266 So.2d 21 (Miss.1972); Thomas v. State, 285 So.2d 148 (Miss.1973). However, in the final analysis, each case must be decided on its own peculiar facts. If the only error presented in this case was ......