Worthy v. State, 48273
| Decision Date | 03 March 1975 |
| Docket Number | No. 48273,48273 |
| Citation | 308 So.2d 921 |
| Parties | Ralph (Robert) WORTHY v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Don H. Evans, L. J. Lee, Jackson, for appellant.
A. F. Summer, Atty. Gen., by John C. Ellis, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before RODGERS, SMITH and SUGG, JJ.
Ralph (Robert) Worthy was tried in the Circuit Court of Winston County upon an indictment charging him with a sale of marijuana, a controlled substance, on June 9, 1972. He was convicted, and was sentenced to serve a term of four years in the penitentiary. He has appealed here.
On the date of the offense, Worthy was 17 years of age. He was 18 at the time of his trial. This was a first offense.
On the afternoon before trial, and on the day of the trial, Worthy's counsel filed several motions. Among them were a motion for a psychiatric examination of Worthy, a motion to produce evidence a motion for change of venue and a motion for a continuance. When the case was called, the trial judge asked defense counsel if he desired to submit any proof on any of the motions and he responded that he did not, and none was offered. Nevertheless, the court allowed counsel to discuss orally each of the motions at considerable length. Thereafter, the motions were overruled. This action of the court is assigned as reversible error. Without burdening this opinion unduly, it should be pointed our that the filing of the motions was not timely and that their allegations were supported by no proof whatever. The motions for change of venue and for a continuance failed to comply with statutory requirements in any respect. They were support neither by proof nor affidavit. Moreover, following conviction, a motion for a new trial sought to raise the same questions again, but again there was no proof nor offer of proof to support appellant's contentions with respect to them. As to the continuance sought because of 'absent witnesses,' no subpoena had been requested or issued for them until the afternoon before trial. And, on motion for a new trial, appellant neither produced the witnesses nor their affidavits nor any statement as to what their testimony would have been if they had been present, nor offered any excuse for failure to do so. The trial court did not err in denying these motions under the circumstances disclosed by the record.
Several other matters assigned and argued as having constituted prejudicial error also have been examined and there is no merit in appellant's contentions as to them.
The sole defense offered at the trial was that of entrapment. Appellant, testifying as a witness in his own behalf, admitted the act of selling the marijuana but said that he had done so to accommodate, and at the instance of, another. He said that he got none of the money, although there was a dispute as to whether it had been paid to him or not. The defense theory of entrapment was duly submitted to the jury by the trial court in three separate instructions. There was sufficient evidence to support the jury's rejection of this defense. We find no prejudicial error in the trial of the case and therefore the conviction appealed from must be affirmed.
However, although not assigned, we feel bound to notice a plain error. The sentence imposed was unauthorized by law, under the circumstances of this case, and must be set aside and the case remanded for imposition of a proper sentence.
The offense charged is defined and proscribed by Mississippi Code Annotated Section 41-29-139(c) (Supp.1974), which provides:
(c) Except as authorized by this article, it is unlawful for any person to sell, barter or transfer a controlled or counterfeit substance for money or for other consideration.
In Applegate v. State, 301 So.2d 853 (Miss.1974), this Court noted the ligislative declaration of public policy which appears in the Uniform Controlled Substances Law:
(g) It is the intent and purpose of the legislature to promote the rehabilitation of persons convicted of offenses under the Uniform Controlled Substances Law by providing for incarceration of such persons in facilities separate from the state penitentiary and the several county jails or county farms. (Emphasis added). (Miss.Code Ann. § 41-29-150(g), (Supp.1973)).
As noted, as the time of the offense, Worthy was only 17 years of age. There was impressive testimony as to his previous good character. He was an 'A' and 'B' student, president of the student body at Louisville High School, worked four or five nights a week at a radio station, was captain of the football team and was a student at Jackson State College.
Subsection (c), Mississippi Code Annotated Section 41-29-150 (Supp.1974), provides:
(c) Any person who has not reached his twenty-first (21st) birthday, who is convicted of a first offense under subsections (d) or (e) of section 41-29-139, and who is sentenced to a period of confinement shall be confined at the Mississippi State Hospital at Whitfield, Mississippi, or at the East Mississippi State Hospital at Meridian, Mississippi, for the term of such sentence. Those persons so confined at said institutions shall be required to abide by all reasonable rules and regulations promulgated by the director and staff of said institutions. Any persons so confined who shall refuse to abide by said rules or who attempt an escape or who shall escape, shall be transferred to the state penitentiary or to a county jail, where appropriate, to serve the remainder of the term of imprisonment; this provision shall not preclude prosecution and conviction for escape from said institutions. (Approved May 19, 1972).
Subsection (d) of the same section provides the penalty which shall be imposed,...
To continue reading
Request your trial
-
Johnson v. State
...So.2d 265 (Miss.1976). 15. Saucier v. State, 328 So.2d 355 (Miss.1976). 16. Butler v. State, 320 So.2d 786 (Miss.1975). 17. Worthy v. State, 308 So.2d 921 (Miss.1975). 18. Pilcher v. State, 296 So.2d 682 (Miss.1974). 19. Griffin v. State, 292 So.2d 159 (Miss.1974). 20. Myers v. State, 268 S......
-
Sayre v. State, 57110
...304 So.2d 656 (Miss.1974) (entrapment is question of fact for jury; verdict of guilt supported by sufficient evidence); Worthy v. State, 308 So.2d 921 (Miss.1975) (same); Turner v. State, 415 So.2d 689 (Miss.1982) (same); Robinson v. State, 508 So.2d 1067 (Miss.1987) (directed verdict for d......
-
Harper v. State, 52354
...used due diligence to procure the presence of the absent witness. Thigpen v. State, 206 Miss. 87, 39 So.2d 768 (1949); Worthy v. State, 308 So.2d 921 (Miss.1975); Diddlemeyer v. State, 234 So.2d 292 Lastly, argument is made that the evidence was insufficient to support a conviction. The jur......
-
Burns v. State, 50088
...or Mississippi State Hospital at Whitfield, for the term of his sentence. This statute was inerpreted by this Court in Worthy v. State, 308 So.2d 921 (Miss. 1975), to require sentencing of 'juvenile first offenders' to one of the two state hospitals. Worthy does not hold that the indictment......