author: WALKER, Justice, PATTERSON, Chief Justice,

text:
    Larry JONES v. STATE of Mississippi.
    No. 50944.
    Supreme Court of Mississippi.
    Jan. 30, 1980.
    Rehearing Denied April 2, 1980.

      Morris & Walton, Charles E. Morris, Jr., C. Wesley Walton, Biloxi, for appellant.
    A. F. Summer, Atty. Gen. by Calvin Coolidge Williams, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    PATTERSON, Chief Justice, for the Court on the Guilt-Determining Phase.
    WALKER, Justice, for the Court on the Sentence-Determining Phase.
   THE GUILT PHASE OF TRIAL

The state’s case centers upon the testimony of J. D. Reddix, hereinafter J. D., who testified that on the morning of December 2, 1974, his brother Willie Reddix, hereinafter Willie, and Larry Jones persuaded him to drive them to downtown Biloxi. J. D. testified that at the time he had no knowledge of any criminal design of the others. After stopping for gas, J. D. proceeded with Willie and Larry Jones, hereinafter Jones, to downtown Biloxi where he parked his gray Cadillac in the parking lot of a shoe store. J. D. testified Willie and Jones then left walking in the general direction of Weinburger’s store while he remained in the car. J. D. recalled that Jones at the time was wearing a pair of combat boots.

Orvel McGee was in the same downtown area on December 2, 1974. After identifying a photograph of J. D.’s car, he testified that at about 11:15 a. m. he saw one man park the car and two others get out of it and walk in the direction of Weinburger’s store. McGee observed that one of the persons leaving the car wore combat boots. Shortly thereafter, he saw them return and noted the person wearing combat boots was carrying a footlocker. He could not identify Jones as one of the two men he saw leave and later return to the car.

Shortly before noon on December 2,1974, Ray Real, a store manager, observed a man carrying a footlocker away from Weinbur-ger’s store. At about this time Preston Sullivan testified he entered the store and found Arthur Weinburger, proprietor, lying in an office doorway amid a pool of blood. A surgeon gave evidence that Weinburger died later in the day as the result of blows to his head.

J. D. stated that Jones was carrying a footlocker when he returned to the car. A state witness, Lula Mae Bell, aunt of J. D. and Willie, at first testified she could not remember having seen her nephews or Jones in downtown Biloxi on the day of the homicide. However, on direct examination the following day she recanted, admitting that she had “lied” earlier in her testimony, and explained by stating her life had been threatened in the interest of Jones. She then testified that she did see Willie and Jones leave J. D.’s car and walk toward Weinburger’s store on the day of the homicide and that Jones was wearing combat boots.

Annie Lee Reddix, mother of Willie and J. D., testified that on December 2, 1974, J. D., Willie and Jones left her house in J. D.’s car. When they returned, Jones stored the footlocker which he had in her house, changed the combat boots he was wearing to tennis shoes, and later departed, leaving the boots.

On December 3, 1974, pursuant to warrant, detectives searched the house of Annie Lee Reddix. They discovered a footlocker and a pair of combat boots. The footlocker was identified as the one taken from Wein-burger’s store, and the boots were found to be stained with human blood of an undeter-minable type. Lerline Blancq, manager of Weinburger’s store, testified that approximately $600 had been taken in the robbery and positively identified the merchandise found in the footlocker as belonging to We-inburger’s store.

By his first, second, and sixth assignments of error, Jones raises the sufficiency of the evidence to support the jury’s guilty verdict. He argues that only two witnesses, Lula Mae Bell, an admitted perjurer, and J. D. Reddix, an admitted accomplice, linked him to the crime.

We conclude the state presented circumstantial evidence sufficient to support the jury verdict of guilty. Under our authorities Lula Mae Bell’s and J. D. Reddix’s testimony is competent.

Lula Mae Bell was presumptively innocent of perjury when she testified and was therefore a competent witness. Isonhood v. State, 274 So.2d 685, 690 (Miss.1973). As for J. D. Reddix, his status as an accomplice affected the weight, not the competency of his testimony. Thomas v. State, 340 So.2d 1 (Miss.1976); Black v. State, 336 So.2d 1302 (Miss.1976); Fleming v. State, 319 So.2d 223 (Miss.1975). The jury had before it exhaustive attempts by the defense to impeach these witnesses and by the state to rehabilitate them. The trial court, in our opinion, properly left to the jury the weight and worth to be accorded their testimony. From the entirety of the record and particularly in view of the corroborating circumstances evidenced by disinterested witnesses, we think that reasonable minds could have found it to have been beyond reasonable doubt that Jones participated in the robbery resulting in Weinbur-ger’s death.

As a confessed accessory after the fact to the murder with which Jones was charged, J. D. was an accomplice. Dedeaux v. State, 125 Miss. 326, 87 So. 664 (1921). Therefore, his testimony must be considered with caution. Feranda v. State, 267 So.2d 305 (Miss.1972). However, it is also established that an accused may be convicted on the uncorroborated testimony of an accomplice. Rich v. State, 322 So.2d 468 (Miss.1975); Moore v. State, 291 So.2d 187 (Miss.1974); Young v. State, 212 Miss. 460, 54 So.2d 671 (1951). Moreover, J. D.’s testimony. appears consistent with the corroborating testimony to which other witnesses testified.

State witnesses Orvel McGee, Ray Real, Preston Sullivan, Lerline Blancq, and others, together established that at about midday on the day of the homicide, two empty-handed black men, one wearing combat boots, went in the direction of Weinburger’s store from J. D.’s parked automobile. Orv-el McGee recalled seeing a man wearing combat boots return with a footlocker to the car a few minutes after he left it. Later a footlocker was carried by Jones into Annie Lee Reddix’s house, where it was subsequently discovered and identified as stolen from Weinburger’s store, and bloodstained boots were also found. In sum, the record contains more than “slight” corroborative evidence which we held sufficient to sustain the conviction on an accomplice’s testimony in Lifer v. State, 189 Miss. 754, 199 So. 107 (1940), and cases cited therein.

On cross-examination of J. D., an inconsistency was established between his current testimony concerning the color of the pants worn by Jones on the day of the homicide and his testimony on the same matter given at a previous hearing. J. D. acknowledged the inconsistency, but offered no explanation. An additional inconsistency was brought out on cross-examination. J. D. had apparently told the Biloxi police that one “Royce” was with them on the day of the homicide, but the evidence was inconclusive as to whether “Royce” or “Roy,” as he was later referred to, accompanied the participants in the crime to the downtown area.

We do not think the cross-examination concerning .the color of the pants worn by Larry Jones and the company of Roy destroyed J. D.’s testimony as a matter of law. The jury has the duty to determine the impeachment value of inconsistencies or contradictions as well as testimonial defects of perception, memory and sincerity. The entire sequence of examination suggests that while Roy may have been “with them” sometime on December 2, 1974, he did not accompany the criminal participants to downtown Biloxi. Under the circumstances, we think leaving the question of credibility to the jury was proper and that appellant’s conviction cannot be said to be contrary to the weight of the evidence. See Kinney v. State, 336 So.2d 493 (Miss.1976); Black v. State, 336 So.2d 1302 (Miss.1976); Fleming v. State, 319 So.2d 223 (Miss.1975); Null v. State, 311 So.2d 654 (Miss.1975).

Appellant next contends, “The record does not expressly show that this appellant was actively engaged in an assault on the victim in the course of the robbery set out by all the evidence in the record.” We agree the record does not conclusively establish which of the two co-felons, Willie Reddix or Larry Jones, the appellant, actually wielded the blows causing Weinbur-ger’s death. However, doubt concerning the precise role of the appellant in the homicide does not upset the jury’s verdict. The indictment alleges that Larry Jones, together with his co-indictees Willie Reddix and J. D. Reddix, participated in an armed robbery which resulted in the death of Arthur Weinburger, a human being. The statutory subsection proscribing appellant’s conduct, Mississippi Code Annotated section 97-3-19(2)(e) (1972), appears in the indictment. It designates as capital murder a killing “done with or without any design to effect death, by any person engaged in the commission of the crime of . robbery . .

This language renders the factual question of which- of two co-felons acted as the efficient cause of the death unnecessary to the verdict in the guilt-determining phase. It is enough that the evidence shows the willing participation of the accused in a robbery in furtherance of which a death resulted. See Price v. State, 362 So.2d 204 (Miss.1978); McNeer v. State, 228 Miss. 308, 87 So.2d 568 (1956); Carrol v. State, 183 Miss. 1, 183 So. 703 (1938); Woodward v. State, 166 Miss. 596, 143 So. 859 (1932); Fisher v. State, 150 Miss. 206, 116 So. 746 (1928); cf. Miss.Code Ann. § 97-1-3 (1972).

As we have said, the evidence sufficiently demonstrates such a willing participation by the appellant. He does not challenge the indictment, nor suggest the legislature lacks the power to expose him to guilt of capital murder in the absence of proof that he had a specific intention to kill. We conclude that the verdict in the guilt-determining phase is within the law and the weight of the evidence.

Appellant next contends the cumulative effect of trial errors consisting of unduly constrained voir dire examination, unduly restricted defense argument and improper prosecutorial remarks requires reversal.

The trial court has broad discretion in passing upon the extent and propriety of questions addressed to prospective jurors. Myers v. State, 268 So.2d 353 (Miss.1972). Although broad, the discretion is not unlimited, and an abuse will be found on appeal where clear prejudice to the accused results from undue constraint on the defense or undue lack' of constraint on the prosecution. See, e. g., McCaskill v. State, 227 So.2d 847 (Miss.1969); Leverett v. State, 112 Miss. 394, 73 So. 273 (1916).

Appellant complains that the trial court did not permit him to inquire of the prospective jurors whether they would be happy to be tried by persons in their frame of mind. Yet our review reveals the trial court, for whatever reason, did permit this questioning. Further, appellant suggests he was not permitted to ask the prospective jurors whether they would follow the law. Again, the record does not support the suggestion, and we must conclude neither contention has merit.

Appellant next argues that undue restraint was imposed upon defense counsel when he attempted to ask the prospective jurors whether they would consider the indictment as anything but a “mere piece of paper” in considering their verdict. At this point the court advised defense counsel that he would instruct on this point and the record reveals that he did so at the appropriate time.

A review of the objections which were sustained to defense counsel’s closing summation in the guilt-determining phase reveals no error, in our opinion. The court properly sustained an objection to defense counsel’s attempt to place the individual jurors in the non-neutral position of the accused. See Danner v. Mid-State Paving Co., 252 Miss. 776, 173 So.2d 608 (1965).

The state also objected to defense counsel’s statement, “[b]ear with me also because the state is going to try to confuse me as much as they can . . . .” The court sustained the objection to this argument and we think properly so. Later in defense counsel’s argument, the court sustained an objection raised when counsel suggested to the jury that one of the state’s witnesses had been granted immunity from perjury. Again, the trial court’s ruling appears to have been correct, because there is no suggestion in the record that there had been a grant of immunity. One well established constraint upon the permissible perimeters of closing argument is that counsel must limit his remarks to the evidence presented. See Gray v. State, 351 So.2d 1342 (Miss.1977); Nelms and Blum v. Fink, 159 Miss. 372, 131 So. 817 (1930).

Appellant next contends that the cumulative effect of objectionable statements made by the state vitiated his trial with prejudicial error. Appellant’s complaint concerns testimony and statements which touched upon the unpleasant details of Weinburger’s death. Again, reviewing the record, we find the trial court sustained defense counsel’s objections to any detail relating to the physical aspects of the death when questioning exceeded that necessary to establish the fact and cause of death. For example, the trial court refused to admit pictures of the deceased during the guilt phase and instructed the jury to disregard the state’s dim suggestions that the killing was particularly atrocious.

Appellant also complains that the jury learned of Willie Reddix’s conviction in a separate trial. It is true that we have held admission of evidence of this nature to be inimical to a fair trial. Ivy v. State, 301 So.2d 292 (Miss.1974); McCray v. State, 293 So.2d 807 (Miss.1974); Buckley v. State, 223 So.2d 524 (Miss.1969); State v. Thornhill, 251 Miss. 718, 171 So.2d 308 (1965). However, we find that defense counsel underscored Willie Reddix’s conviction and attempted to use that fact to appellant’s advantage, as can be seen from the following colloquy between defense counsel and state witness Annie Lee Reddix:

Q. You do have a real good motive in shifting the blame in this case from your son J. D. to ■ Larry Jones haven’t you? * * * * * *
A. I don’t know the reason you are talking about.
Q. Well, J. D. is your son, isn’t he?
A. Yes, he’s my son.
Q. J. D. was charged with capital murder, wasn’t he?
A. All three of them was charged with capital murder.
Q. That’s right, and Willie’s been convicted hasn’t he?
A. Yes.
Q. And sent to the gas chamber.
A. Yes.

Also, defense counsel while cross-examining J. D. Reddix, elicited the following testimony:

Q. Were you or were you not a code-fendant in this case in the beginning?
A. Would you — what—
Q. —Weren’t you charged and indicted for the crime of capital murder?
A. Yes, I was.

We think an appellant cannot assail as prejudical his own trial tactics, because it would foster a propensity in litigants to create error to enhance the possibility of reversal and repeated trials. This he is not permitted to do. Simpson v. State, 366 So.2d 1085 (Miss.1979).

Appellant then argues his motion for a mistrial was improperly denied, because irreparable prejudice resulted from the following:

BY MR. NECAISE: And then finding this Defendant along with the co-defendant, Willie Reddix, in Jackson County four days later and this Defendant doing—
BY MR. MORRIS: —objection-, Your Honor. There is no evidence whatsoever before this Court that this Defendant was found with Willie Reddix.
BY THE COURT: Objection sustained.

The court’s ruling sufficed to repair any prejudice which might otherwise have re-suited. It negated, we think, any suggestion of guilt by association.

In conclusion, we are of the opinion that when considered either alone or in combination, appellant’s third, fourth, and twelfth assignments of error do not merit reversal of the verdict rendered in the guilt-determining phase.

By his seventh assignment of error, Jones contends the court erred in refusing Instructions D^4, D-5, D-8, D-9, D-10, D-12, D-16, D-17, D-18 and D-19. We have studiously reviewed these instructions and are of the opinion they are in all essential respects cumulative with others which were granted. The trial court is not required to grant several instructions on the same question in a different verbiage. McMillan v. State, 198 Miss. 179, 21 So.2d 586 (1945). When we consider all of the instructions together, we conclude the jury was properly instructed upon the law of the case.

Instruction D-17 concerns the weight to be accorded the testimony of an accomplice. While it would not be improper to grant an instruction of this nature, Dedeaux v. State, 125 Miss. 326, 87 So. 664 (1921), the decision to grant or refuse it rests within the sound discretion of the trial court. Ragan v. State, 318 So.2d 879 (Miss.1975); Wellborn v. State, 140 Miss. 640, 105 So. 769 (1925). Moreover, the instruction refers to “the unsupported testimony of an alleged codefendant.” This suggests .the testimony of the accomplice was unsupported by other evidence when in fact it was corroborated. We therefore think refusal of Instruction D-17 does not constitute reversible error.

Our review of the record reveals no prejudicial error. We therefore affirm the verdict of guilty.

AFFIRMED.

All Justices concur.

THE SENTENCING PHASE OF TRIAL

WALKER, Justice,

for the Court.

The appellant contends there was error in dismissing jurors who were opposed to the death penalty. The relevant portions of the voir dire examination lead us to conclude this assignment has no merit.

On appellant’s appeal from his first conviction of capital murder, this' Court in directing a retrial in accord with Jackson, supra, stated: “On retrial, if defendant is tried on a capital charge, the trial court will follow Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).” 342 So.2d at 737. The lower court complied with this directive by eliminating for cause those jurors who not only indicated they harbored conscientious scruples against the death penalty, but who also indicated those scruples would prevent them from trying the issue of guilt in accord with their oath. Those who harbored conscientious scruples but who signified they could follow the law and fairly try the case were retained as prospective jurors. This complied with Witherspoon, supra. See also Spinkellink v. Wainwright, 578 F.2d 582, 592-93 (5th Cir. 1978).

Appellant next contends the death penalty statute, Mississippi Code Annotated section 99-19-101 (Supp.1978), is unconstitutionally vague. He argues that no valid death penalty statute existed in this state at the time of the crime charged. We have rejected identical contentions in earlier opinions and think it unnecessary to reiterate the discussions contained in them. See Washington v. State, 361 So.2d 61 (Miss.1978); Irving v. State, 361 So.2d 1360 (Miss.1978); Bell v. State, 353 So.2d 1141 (Miss.1977); and Jackson v. State, 337 So.2d 1242 (Miss.1976).

Jones next argues there was error in Instruction C-30 concerning the form of the verdict. The alleged defect in the instruction consists of the omission of a statement informing the jurors in the event of their inability to reach a unanimous verdict a life sentence would bé imposed. We note that Rule 5.13 of the Mississippi Uniform Criminal Rules of Circuit Court Practice provides for such a statement in the sentencing phase of a capital case; however, the omission has not been held reversible error. We have held only that “[i]f the jury is unable to agree unanimously on a verdict at the sentencing hearing, the defendant shall be sentenced to life in prison.” Jackson v. State, 337 So.2d 1242, 1256 (Miss.1976).

We do not find an instruction requested by appellant concerning the form of the verdict. But assuming, arguendo, that appellant preserved for review the issue raised by his eighth assignment of error, see McMullen v. State, 291 So.2d 537 (Miss.1974), we are of the opinion that the omission does not constitute reversible error, because the jury did reach a unanimous verdict within a reasonable time.

This brings us to the argument that a life sentence should have been entered when the jury after deliberating for two hours and fifteen minutes, returned to the courtroom at 9:15 p. m. with a note, signed by the foreman, reading, “[w]e the jury cannot come to a unanimously [sic] decision—what shall we do?” The construction of this note becomes, as appellant suggests, crucial under Jackson, supra. If interpreted as a statement by the jurors that they could not within a reasonable time reach unanimity, the death sentence imposed the following day is in jeopardy. If, however, it is construed as a statement by the jurors that they were weary and desired a recess, the death sentence eventually imposed is valid, subject only to judicial review pursuant to Mississippi Code Annotated section 99-19-105 (Supp.1978).

When the note was received the trial judge stated: “Ladies and gentlemen of the jury, it’s been a long day. You started work this morning at about nine and it’s getting a little bit late into the night so at this time, court is going to recess until nine tomorrow morning.” In so stating, he complied with this Court’s decisions concerning the procedure to be followed when the jury indicates its present inability to reach a unanimous verdict. See, e. g., Jordan v. State, 365 So.2d 1198, 1206 (Miss.1978), and cases cited therein. We do not consider the note to be the equivalent of a verdict and therefore conclude this assignment lacks merit.

Some of the Justices have expressed concern about remarks made by the prosecuting attorney during final arguments in the sentencing phase. These remarks were in response to statements, not supported by the record, made by the defendant while exercising his right to argue his case to the jury, and the district attorney’s remarks alluded to the failure of the defendant to testify.

FOR CLARITY, SEE THE PARTS OF THE RECORD DEALING WITH THESE REMARKS ATTACHED HERETO AS APPENDIX “A.”

We do not find any prejudicial error stemming from the prosecutor’s remarks. The remarks were prompted by the defendant’s own statements which were exculpatory and self-serving in nature, not under oath and not supported by the record.

Mississippi Constitution, Article 3, Section 26 (1890) guarantees the accused the right to argue his case to the jury. Gray v. State, 351 So.2d 1342 (Miss.1977). In addition, the accused in a criminal trial has the right not to testify. That right is so basic to the American concept of a fair trial that a prosecutorial comment on an accused’s failure to testify is a violation of the self-incrimination clause of the Fifth Amendment. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).

These two rights create a conflict which requires a defendant to make a choice. If he chooses to argue his case to the jury and at the same time invokes the Fifth Amendment, he must confine his remarks to the evidence in the record. The Fifth Amendment privilege against self-incrimination is a shield, not. a sword. A criminal defendant who takes advantage of his right to argue his case to the jury must not be permitted to say all the things he might have testified to had he chosen to call himself as a witness. When he does so, he will be deemed to have waived the right not to have his failure to take the stand commented upon.

There is no doubt that an individual may waive the personal protections and privileges provided by the United States Constitution. Morgan v. United States Fidelity & Guaranty Co., 222 So.2d 820 (Miss.1969). See also Brewer v. State, 233 So.2d 779 (Miss.1970) [right of confrontation]; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357 (1937) [Sixth Amendment]; Zap v. United States, 328 U.S. 624, 66 S.Ct. 1277, 90 L.Ed. 1477 (1946) [Fourth and Fifth Amendments].

This Court has specifically recognized that an accused can waive his immunity from self-incrimination, and that he does so when he takes the stand and testifies on the merits of the case. See Autry v. State, 230 Miss. 421, 92 So.2d 856 (1957). We are of the opinion that he does the same when he goes beyond the record when arguing his case and gives testimony on a material point which is not in the record.

The practical solution to the dilemma presented by the accused who uses his constitutional right to argue his case to the jury to give, what is for all practical purposes, testimony is to treat the unsworn testimonial statements of the accused which were not supported by the record as a partial waiver of the privilege against self-incrimination. It is not a total waiver of the privilege, since the prosecution is unable to cross-examine the accused at this late stage of the trial. But the prosecution may comment to the jury that the defendant’s statements were not given under oath and that he was not subject to cross-examination about them. The constitutional privilege of the criminal defendant appearing pro se is adequately protected if the court gives him a clear and direct warning out of the presence of the jury prior to beginning his argument that such limited comment might follow if he goes outside the record and gives what amounts to unsworn testimony.

The Mississippi Constitution gives the accused the right to be heard by himself or counsel, or both. However, it does not exempt a defendant who argues pro se from following the rules of court procedure. We do note, however, that the trial court should allow him some leeway in arguing his case, each case necessarily resting on its own facts and circumstances.

But, in those instances where a defendant, arguing pro se, clearly goes beyond the evidence in the record on a material point, as he did in this case, he must accept as a consequence the prosecution’s comment on his failure to swear to the testimony. The defendant’s remarks in this case cannot be dismissed as a failure to grasp “legal niceties.” They are unsworn testimony, and as such, constitute a partial waiver of the constitutional privilege against self-incrimination and the prohibition against a district attorney from commenting on his not taking the stand.

We do not say that every defendant who argues pro se loses the privilege against prosecutorial comment on his failure to testify. Only when the defendant’s remarks go beyond the evidence does he waive this privilege.

The appellant also contends the following statement by the district attorney in his closing argument constituted prejudicial error:

To come up behind an old man in the twilight years of life and hit him four times, as he told you, with a wrench. We finally found out what it was — with a wrench. That’s what he told you when he got up here.

Even though an objection to this statement was sustained, the appellant contends that its effect was not erased from the minds of the jurors. Assuming this is true, we are not convinced the statement was prejudicial. The facts showed that the decedent was struck 'with a blunt instrument. We see no prejudice resulting from naming the instrument for what it was, be it a wrench or an iron pipe. The fact remains that decedent’s death resulted from the blow. The jury was properly instructed to-consider only the evidence in the record, and we cannot agree that any prejudice resulted since the objection to the statement was sustained.

Another problem which deserves comment arose in the sentencing phase. The lower court admitted evidence of an armed robbery conviction of the appellant entered after the December 2, 1974, murder of - Weinburger. This conviction was affirmed on appeal in a per curiam opinion. Jones v. State, 340 So.2d 17 (Miss.1976).

Among the aggravating circumstances available for consideration in capital cases under Mississippi Code Annotated section 99-19-101 (Supp.1979), subsection (5)(b) is that: “The defendant was previously convicted of another capital offense or of a felony involving the use or threat of violence to the person.” (Emphasis added). In employing the word “previously,” the statute designates no time frame. The question arises as to whether the legislature meant previous to the commission of the capital offense or previous to the trial for it.

We conclude the legislature intended to relate the word “previously” to the time of trial, so that a conviction between the time the capital offense was committed and the time of trial for it may be admitted into evidence as an aggravating circumstance. We think this, because a wide leeway is permitted the appellant to offer mitigating circumstances in avoidance of the death sentence, while an extremely limited type of behavior may be offered by the state in seeking capital punishment. In our opinion, the legislature undoubtedly intended a weighing of both at the time of sentencing so the past behavioral patterns likely to affect the defendant’s future behavior might be evaluated by the jury in deciding whether the defendant will live or die. We think there is no more justification for terminating consideration of the defendant’s criminal behavior at the time of .the offense than there is.for terminating consideration of favorable behavior at that time. All go to the question of whether the most severe punishment will serve a legitimate social purpose untainted by vindictiveness.

The aggravating circumstances introduced into evidence and appearing in the jury’s verdict are:

(1) The offense was committed during the commission of robbery.
(2) The offense was especially heinous, atrocious or cruel.
(3) Defendant has been previously convicted of a felony involving the use or threat of violence to the person.

The first was established by the first phase of trial which culminated in a guilty verdict. The second was proved by pictures illustrating the atrociousness of the killing, together with testimony showing the victim to have been old and weak in comparison with appellant. The third was established by the introduction of court records concerning the prior armed robbery conviction.

The defendant introduced no evidence of mitigating circumstances at the sentencing phase. However, there is evidence that the defendant’s age was either seventeen or eighteen years at the time of the crime. Also, a mitigating circumstance mandated by Mississippi Code Annotated section 99-19—101(6)(d), relates to the role of the defendant in the crime. In this regard, there was no testimony indicating that this defendant was the one who struck the blows causing death even though blood was found on his boots. The jury was obviously aware of these circumstances and was instructed to consider any facts concerning the crime or the defendant’s background which would reasonably mitigate against imposition of the death penalty. The jury nevertheless found unanimously from the evidence beyond a reasonable doubt that after weighing the mitigating circumstances and the aggravating circumstances, one against the other, the mitigating circumstances did not outweigh the aggravating circumstances, and the defendant should suffer the penalty of death.

Mississippi Code Annotated section 99-19-105 (Supp.1979), in pertinent part, mandates the following:

(2) The Mississippi Supreme Court shall consider the punishment as well as any errors enumerated by way of appeal.
(3) With regard to the sentence, the court shall determine:
(a) Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor;
(b) Whether the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance as enumerated in section 99-19-101; and
(c) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
(5) The court shall include in its decision a reference to those similar cases which it took into consideration. In addition to its authority regarding correction of errors, the court, with regard to review of death sentences, shall be.authorized to:
(a) Affirm the sentence of death; or
(b) Set the sentence aside and remand the case for modification of the sentence to imprisonment for life.
(6) The sentence review shall be in addition to direct appeal, if taken, and the review and appeal shall be consolidated for consideration. The court shall render its decision on legal errors enumerated, the factual substantiation of the verdict, and the validity of the sentence.

In response to subsection (3)(a), the Court is of the opinion that the sentence of death was not imposed under the influence of passion or prejudice.

In response to subsection (3)(b), the Court is of the opinion that the evidence does support the jury’s finding of the statutory aggravating circumstances as enumerated in section 99-19-101 and recited in the verdict.

In response to subsection (3)(c), the Court is of the opinion that the sentence of death is not excessive and disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

In complying with subsection (5), we have reviewed the following capital cases in which we have rendered dispositive decisions affirming death sentences and setting dates for executions: Culberson v. State, Miss., 379 So.2d 499, No. 50,802, decided November 28, 1979, and not yet reported; Gray v. State, 375 So.2d 994 (Miss.1979); Jordan v. State, 365 So.2d 1198 (Miss.1979); Voyles v. State, 362 So.2d 1236 (Miss.1978); Irving v. State, 361 So.2d 1360 (Miss.1978); Washington v. State, 361 So.2d 63 (Miss.1978); and Bell v. State, 360 So.2d 1206 (Miss.1978).

SYNOPSES OF THE ABOVE CASES

Bell was an armed robbery case where the robbery had been successfully completed and the killing afterward was wanton, useless and utterly unnecessary. Although at trial Bell denied having actually fired the fatal shot, there was competent evidence that showed he was armed and present when the execution-style killing occurred. The jury found as an aggravating circumstance that Bell had committed the murder and the murder had occurred during the commission of armed robbery and kidnapping.

The following circumstances in mitigation were before the jury:

(1) On the night of the murder Bell had been taking marijuana and other drugs;
(2) Bell was either seventeen or eighteen years of age;
(3) According to Bell’s testimony, he was an accomplice only and had asked another not to kill the victim at one' time.

In Voyles, a thirty-year-old defendant killed his girl friend because she refused to put title to her car in his name. He beat her into unconsciousness, ran over her with a car, and threw her body into a creek. •Relying essentially on the testimony of defendant’s nephew, an eyewitness who claimed innocence, the jury found him guilty of capital murder and imposed a death sentence. Aggravating circumstances included the cruelty and atrocity of the killing, that the offense was committed for pecuniary gain, and that it was committed during the course of an attempt to commit robbery. There were no mitigating circumstances submitted to the jury.

In Culberson, the same three aggravating circumstances were present as are present in this case. A mitigating circumstance was that the death sentence rested solely on the testimony of the admitted accomplice, who had plea-bargained for a lesser sentence. In affirming the sentence of death, we implicitly held that the testimony of an admitted accomplice in a capital murder case sufficient to sustain a conviction in the guilt phase of the trial, is sufficient to sustain the death penalty in the sentencing phase.

The proof in this case sufficiently demonstrates that the defendant was an active and willing participant in a robbery in furtherance of which a death resulted. Although there was no direct testimony that Jones struck the fatal blow, the blood on his boots, coupled with the testimony of several witnesses who placed Jones near the scene of the crime, is strong evidence that he was at least present when the fatal beating took place. The doubt concerning Jones’ precise role in the homicide does not upset the jury’s sentence of death under these circumstances.

Compared to the other capital cases in which we have affirmed the death sentence, this killing was equally as wanton, cruel and senseless as the others. The defendant was actively engaged in a robbery during the course of which the victim, a merchant over seventy years of age, was brutally murdered by blows to the head which crushed his skull.

The present case was heard by the full Court, sitting en banc, and carefully reviewed in the manner set forth in Bell, supra, and that prescribed by Mississippi Code Annotated section 99-19-105(3) (Supp. 1978).

We find that: the sentence of death was not imposed in this case under the influence of passion, prejudice or any other arbitrary factor; that the evidence supports the jury’s finding of statutory aggravating circumstances; and, having considered both the crime and the defendant, we find that the sentence of death in this case is not excessive or disproportionate to similar cases in which such sentence has been imposed. The decision in the present case is consistent with conclusions reached in other cases before this Court in which the death penalty has been imposed.

Jones’ conviction of capital murder and the sentence of death imposed upon him will be affirmed.

AFFIRMED AND WEDNESDAY, MARCH 12, 1980 IS SET AS THE DATE OF EXECUTION OF THE DEATH SENTENCE.

All Justices concur in the Guilt-Determining Phase.

' ROBERTSON, P. J., and WALKER, SUGG, LEE and BOWLING, JJ., concur in the Sentence-Determining Phase.

PATTERSON, C. J., SMITH, P. J., and BROOM and COFER, JJ., dissent.

APPENDIX “A”

LARRY JONES’ PRO SE ARGUMENT TO JURY DURING SENTENCING PHASE OF THE BIFURCATED TRIAL

THE JURY WAS THEREUPON RETURNED TO THE COURTROOM AND THE COURT HAVING FIRST INSTRUCTED THE JURY, MR. THOMAS PRESENTED OPENING ARGUMENT TO THE JURY ON BEHALF OF THE STATE OF MISSISSIPPI, AT THE CONCLUSION OF WHICH, THE DEFENDANT PROCEEDED WITH FINAL ARGUMENT TO THE JURY, DURING THE COURSE OF WHICH THE FOLLOWING OBJECTION WAS MADE:

THE DEFENDANT: Ladies and gentlemen, my name is Larry Jones and since I see that y’all is confused about what happened and you know, none of y’all know the real facts, which I don’t either, and there was more than three peoples involved— there was four involved in the—

BY MR. NECAISE: ■ — -if the Court please, now, we object to that.

BY THE COURT: On what grounds, counsel?

BY MR. NECAISE: On the grounds that he is testifying, if the Court please, and there’s no way wé can cross examine him on that. He’s saying there were four people involved. There’s no testimony to that, Judge, and no way we can cross examine him on that. Now, he can make a plea to the jury but not something that is not in the record.

BY THE COURT: Well, as to that limited statement, I am going to overrule the objection.

THE DEFENDANT CONTINUED WITH FINAL ARGUMENT TO THE JURY WHEN ANOTHER OBJECTION WAS MADE BY MR. NECAISE:

THE DEFENDANT: We got uptown. He knowed about it. I’m the only one didn’t have no idea of what was happening because they had planned way before I ever thought — you know, they planned it when they got short of money—

BY MR. NECAISE: —if the Court please, we are going to object to this.

BY THE COURT: On what grounds?

BY MR. NECAISE: On the same grounds — this is not testimony — this is not in the record.

BY THE COURT: Well, that’s what he’s arguing, counsel. He’s entitled to make argument and draw inferences from the testimony in the record and I—

BY MR. NECAISE: —Judge, it’s not in the record.

BY THE COURT: —don’t know that he’s exceeded that yet.

THE DEFENDANT PROCEEDED WITH FINAL ARGUMENT TO THE JURY AND ANOTHER OBJECTION WAS MADE BY MR. NECAISE:

THE DEFENDANT: Just as I was coming back, I seen Roy coming out with this suitcase and Willie running the opposite way — I don’t know which way it was — I think it was back this way, which is—

BY MR. NECAISE: —if the Court please, now, that is testifying as to what he saw coming out. That’s not drawing any inference. That’s testifying and there’s no way to contradict that and it’s not fair, Judge, if he doesn’t take the stand and let the State cross examine him on this but to stand up here and to be able to do something that the State does not have a right to cross examine him on is not proper and that is certainly outside of the record, Judge. There’s nothing in the record that Roy was the one that came outside and that Roy was the one that had on the boots. There’s no testimony to that. It’s uncontradicted until he got up here to make what he’s calling a final argument and what he’s doing is testifying. The State didn’t have a right to call him, Judge. We couldn’t put him on the stand.

BY THE COURT: The same rule applies, counsel, to the Defendant at this time as far as the statement he makes here is not testimony and is not evidence. It’s merely argument and the jury should consider only the evidence in the course of their deliberation.

BY MR. THOMAS: Judge, we are restricted to arguing based upon the evidence. He’s putting testimony or trying to put it in a backdoor approach before a jury.

BY MR. MORRIS: Your Honor, I am going to take issue to that statement and ask that the jury disregard that remark.

BY THE COURT: Sustained, at least to the last remark about a backdoor approach.

THE DEFENDANT CONTINUED WITH FINAL ARGUMENT TO THE JURY WHEN ANOTHER OBJECTION WAS MADE:

THE DEFENDANT: During that time, when all this was happening, I was around eighteen and I didn’t know where or what they—

BY MR. NECAISE: —if the Court please, now, there is no testimony to that. Now, this is — now, Judge, there is no testimony to that.

BY MR. MORRIS: There is testimony to his age, Your Honor.

BY MR. NECAISE: Judge, there is no—

BY MR. MORRIS: —from J. D. Reddix. I challenge the record on that.

BY THE COURT: What did Reddix testify?

BY MR. MORRIS: J. D. Reddix testified that he was twenty at the time of the crime and he is now twenty-three and that the Catfish — his words exactly: Catfish was eighteen years old.

BY THE COURT: Objection overruled.

FINAL ARGUMENT WAS CONCLUDED BY THE DEFENDANT IN HIS OWN BEHALF AND MR. MORRIS PROCEEDED WITH FINAL ARGUMENT TO THE JURY ON BEHALF OF THE DEFENDANT.

PATTERSON, Chief Justice,

dissenting:

I concur with the majority in the procedure established for pro se arguments on the sentencing phase of a capital case, but would apply it prospectively as was done in Jackson v. State, 337 So.2d 1242 (Miss.1976).

I dissent from the imposition of the death sentence, because the appellant was only seventeen years of age at the time of the homicide and appears to have a borderline mental capacity. While it is true that neither his age or mental capacity was formally introduced into evidence on the sentencing phase, I nevertheless think we are compelled to consider these items on review because such were included with the report prepared by the trial judge as commanded by Mississippi Code Annotated section 99-19-105 (Supp.1979), and both age and mental capacity are specified in section 99-19-101(6) concerning mitigating circumstances.

I have no desire to quibble regarding the . precise reaction of the jury to the prosecutor’s statement, “To come up behind an old man in the twilight years of life and hit him four times, as he told you, with a wrench. We finally found out what it was — with a wrench. That’s what he told you when he got up here.” I think it had the likelihood of leading the jury into the belief that the appellant struck the blows when there is no evidence in this record establishing that fact. Section 99-19-105(2)(a) mandates our consideration of punishment. Subsection (3) directs our attention to determining “[wjhether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor.” I cannot state categorically whether the quoted words did or did not prejudice the jury, but I do think they had that propensity.

I would remand for another jury to determine the punishment, giving consideration to the defendant’s age and mental capacity. This would also afford the opportunity for both the appellant and the state to give application to the new rules concerning pro se argument if this prerogative is again • indulged by the appellant.

SMITH, P. J., and BROOM and COFER, JJ., join in this dissent.

      . Again referred to in the sentencing phase by Jones in his pro se argument.

      . We have discussed the practicality of remanding this case to the trial court for the purpose of determining sentence only, but we are of the opinion that justice demands that the persons convicted and sentenced to death prior to our holding today should have the benefit of all the guidelines outlined herein. (337 So.2d at 1257)


source: Caselaw Access Project

author: COFER, Justice,

license: Public Domain

text:
    Willie N. REDDIX v. STATE of Mississippi.
    No. 50999.
    Supreme Court of Mississippi.
    Feb. 13, 1980.

      Hawkins & Henry, Joe Ben Hawkins, W. Eugene Henry, Biloxi, J. W. Miller, Rolling Fork, for appellant.
    A. F. Summer, Atty. Gen. by Marvin L. White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   COFER, Justice,

for the Court.

Appellant Willie N. Reddix, Larry Jones (Jones), and John Durango Reddix, Reddix’ brother (J. D.) were indicted at the February 1975 term of Circuit Court of the Second Judicial District of Harrison County, of the capital murder of Arthur Wein-berger, on December 2, 1974, then the owner and operator of “Art’s Levis” (Art’s) on Howard Avenue in Biloxi. The indictment charged that the crime was that denounced in Mississippi Code Annotated, Section 97-3-19(2)(e), (Supp.1979), which defines capital murder in this case in the following language:

(2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:
(e) When done with or without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, kidnapping, arson or robbery, or in any attempt to commit such felonies.

Appellant was tried on this indictment in 1975, and was convicted and sentenced to suffer the death penalty. He was eighteen years old at the occurrence. Heeding the shadows on the validity of our statutes on capital punishment as cast in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), this Court rendered its opinion in Jackson v. State, 337 So.2d 1242 (Miss.1976), holding all persons under death sentence prior to the Jackson decision must be retried, and setting out guidelines therefor, including' the holding of bifurcated trials, one on guilt of the indictee, and, if found guilty, another on the sentence to be imposed.

Under the Jackson case, the 1975 conviction of Reddix was reversed, by an unpublished opinion on March 2, 1977, and remanded for new trial. 342 So.2d 1306 (Miss.1977).

The cause went to trial again in December 1977 being tried in the two phases, resulting in conviction of capital murder and death sentence, and the case is now again before us.

The proof in the case is largely undisputed, but will be noticed here in appropriate detail.

During the later morning of December 2, 1974, Ovell McGee was engaged in a landscaping tractor-driving operation beside a mall on Magnolia Street, near a parking lot, to the south of Howard Street in Biloxi. He testified that a white Cadillac automobile occupied by three black males was driven into the parking lot. Two of the three occupants emerged from the vehicle, and went north along Magnolia Street to Howard Avenue, almost a block away. The third occupant, the driver, stayed in the car which remained parked there until the two others returned about twenty-five to thirty minutes later, one approaching from one way, carrying a footlocker, and wearing ragged-topped combat boots; the other one had a leather jacket coat on his shoulder when he returned. The bearer of the footlocker put it in the car, the two of them got in the car, and they drove away.

Raumond Real was employed in a jewelry store a few doors from Art’s on Howard Avenue, and was returning from lunch, when he observed a black man carrying a footlocker, handling it as if it were heavy; the man turned left (southeast) off Howard on to Reynoir; Real drove around to park his automobile, and came across the man in an alley still with the footlocker.

Preston Sullivan had testified in the first trial, reversed and remanded, as above shown, but had become deceased since. His earlier testimony was read into the record [Mississippi Code Annotated, section 13-1-111 (1972)], wherein he said he had been in Art’s before December 2, 1974, and went in it about 11:30 a. m. on that date, and as he was approaching the store, he observed ón the street a black man, wearing a watchcap, and having a navy peacoat slung over his shoulder, and wearing army fatigue trousers. He entered the store and saw Arthur Weinberger lying in a doorway to an office; he was lying on his back; and there was blood in a puddle around his head. The witness went to another place of business and caused the police to be called; then, thinking of the man dressed as above coming out of the store, he went back across the street and all he could see “was that little green cap just for a second and then it disappeared.”

Dr. Bazzone, a neurological surgeon, testified to the victim’s condition when he had been brought to a hospital emergency room, a bruise over his eye, about four cross-shaped wounds on the left side of the back of his head, some bone fracture, and appeared to be alive but unconscious. The hospital record showed the victim was seventy-seven years old. It was the physician’s medical opinion that the victim had died from head injuries which caused damage to his brain resulting in his decease. The victim died at 4:36 p. m. that day.

Having obtained a search warrant therefor, Robert Payne, in charge of the criminal investigation division of the Biloxi Police Department, searched the home of Annie Lee Reddix, appellant’s mother, where appellant and J. D. also resided, and found a locked footlocker with merchandise in it, and also a pair of combat boots with ragged or fringed tops on them. On these boots were stains that appeared to be blood spots. Mrs. Lerline Blanq, on, and for three or more years preceding, December 2, 1974, was manager of Art’s Levis Store, and possessing a very high degree of familiarity with the store’s merchandise, returned to the store on that day, after her lunch break, about twelve noon, found the store and merchandise in a state of disarray, and the victim beaten and bleeding. She examined the footlocker and merchandise in it, when it had been taken on the search warrant, and identified them as having been taken from Art’s; she testified to money on hand, in process of being prepared for deposit when she left for lunch, and its not being there when she returned.

Lula Bell, aunt of appellant, had testified for the state in the earlier reversed trial, as well as several other times in hearings on this case and its companion case or cases. When called as a witness, she undertook to invoke the protection of the Fifth Amendment to the United States Constitution. Out of the presence of the jury, the state went over her former testimony and was met with denials or failure of memory as to her earlier proof. She was held -by the court to be a hostile witness, whereupon her testimony was largely a confrontation with her answers in the earlier record. She had known appellant all his life; knew J. D.; had seen Larry Jones, the third co-indictee, about three times; she did not know where Art’s Levis was located except that it was on Howard Avenue; and she had known the victim for a number of years and had traded with him. She was in the area of the store the morning of December 2, 1974, but did not remember saying it was between nine-thirty and ten a. m., nor that her first stop was Betty Gary’s, a store across the street near Art’s; nor that she entered that store by the side entrance. She did not remember how long she was in Penney’s; but she came out on Howard Avenue; she did not remember having testified that she saw appellant when she came out of Penney’s or that he was running east pretty fast on Howard Avenue, on the side where Art’s was located, or that he had a dark coat on his shoulder. She did not remember her earlier testimony that there was no doubt in her mind about it being appellant whom she saw.

Appellant’s confession signed by him, subject of one of the assignments of error, was admitted into evidence, as follows:

I, Willie Reddix, was at my home on the 2nd of December, 1974, and Larry Jones was at my home. Larry is also known as Catfish. J. D. Reddix was not there at this time. He did not know anything about the plan that Larry and I had in mind. When J. D. came home, we asked him to give us a ride uptown. He took us uptown and parked in the lot behind the place that used to be Bradley’s Cleaners. Larry Jones and I got out of the car, but my brother, J. D. Reddix, did not get out of the car. This was about 10:45 a. m. Larry and I walked uptown for about five or ten minutes. Then I, Willie Reddix, went into Art’s Levi Store, and I began to question the man about a coat. He showed me a couple.of coats, and he had his back turned to the door. About this time, Larry Jones, came in the store. I kept talking to the man to keep him from seeing Larry. For about the next three seconds, Larry hit the man about three times with a Stilson wrench. Then I ran to the door to keep a watch-out. I had no idea that the man was dead. Larry drug the man into the office. We gathered all the goodies. Larry took shirts and pants and hats and put them in a footloeker. I was at the door watching all the time. Larry said, “I can’t get the cash register open.” So I opened it for him. At this time I went in the office to see was Mr. Art dead, but he was still breathing, so I put his coat under his head, and then we left the scene. Larry carried the footloeker out of the store. Larry went to the left, on Croesus Street, and I went east on Howard Avenue. I was carrying a black jacket in my hand which I had took from the store. We met back at the car. J. D. was still in the car. Larry put the footloeker in the backseat of the car and he sat in the back seat. I got in the front seat. I gave the jacket to J. D. and told him, “Here is a jacket.” J. D. did not ask us where we had been or where we got the things from. The only thing he said was “What you all got?” and I told him to just drive. We went home and parked the car in front of my house, and Larry took the footloeker into my house. When I opened the cash register, we both took the money out. I got about fifty dollars, and I got one silver dollar. After we got home, we laid low for the rest of the day. All J. D. got was the coat I gave him. We did not tell him what we had done. The gun was not used in the holdup that Larry had, just the Stilson wrench.

We now reach the assignments of error. They are:

I.
THE PROCEEDINGS UNDER WHICH THE APPELLANT WAS TRIED CONSTITUTE A VIOLATION OF THE UNITED STATES CONSTITUTION.
II.
THE TRIAL COURT ERRED BY FAILING TO SUSTAIN THE APPELLANT’S MOTION TO SUPPRESS HIS CONFESSION.
III.
THE TRIAL COURT ERRED BY FAILING TO SUSTAIN THE APPELLANT’S MOTION FOR A MISTRIAL FOR REFERENCES MADE BY THE PROSECUTING ATTORNEY TO A PREVIOUS TRIAL OF THE DEFENDANT.
IV.
THE COURT ERRED BY ALLOWING INTO EVIDENCE TESTIMONY OF A WRENCH RECOVERED BY OFFICER ' TICHELL.
V.
THE STATE SHOULD NOT HAVE BEEN ALLOWED TO PRESENT EVIDENCE OF CONVICTIONS THAT OCCURRED SUBSEQUENT TO THE OFFENSE FOR WHICH THE APPELLANT WAS ON TRIAL.
VI.
STATE’S INSTRUCTION NO. ■ 3 SHOULD NOT HAVE BEEN SUBMITTED TO THE JURY.
VII.
THE DEATH PENALTY WAS IMPOSED UNDER THE INFLUENCE OF PASSION, PREJUDICE OR OTHER ARBITRARY FACTORS.
VIII.
THE SENTENCE OF DEATH IS EXCESSIVE AND DISPROPORTIONATE TO THE PENALTY IMPOSED IN SIMILAR CASES, CONSIDERING BOTH THE CRIME AND THE APPELLANT.

Appellant maintains that “the proceedings under which the appellant was tried constitute a violation of the United States Constitution.”

This argument has been made in multiple cases and found to be without merit. Irving v. State, 361 So.2d 1360 (Miss.1978); Washington v. State, 361 So.2d 61 (Miss.1978); Bell v. State, 360 So.2d 1206 (Miss.1978).

The assignment brings into review the entire trial procedure and we are to notice the sentencing phase, also, in disposing of the assignment.

What appellant perceives to be an apparent conflict between, the Jackson decision, supra, and Mississippi Code Annotated, Sections 99-19-101 and 99-19-103 (Supp.1978), is used as basis for confusion as to rights of defendants to prove mitigating circumstances. The Jackson decision says, in part:

At this hearing, [the sentencing phase] the defendant may prove his lack of a prior criminal record as a mitigating circumstance and may also adduce proof of any other circumstance or combination of circumstances surrounding his life and character or the commission of the offense with which he is charged that would be reasonably relevant to the question of whether he should suffer death or be sentenced to life in prison.
(337 So.2d at 1256).

On April 13,1977, Sections 99-19-101 and 99-19-103 took effect. Section 99-19-101 provides, as to the sentencing phase:

In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence, and shall include matters relating to any of the aggravating or mitigating circumstances.
[and]
(6) Mitigating circumstances shall be the following:
(a) The defendant has no significant history of prior criminal activity.
(b) The offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.
(c) The victim was a participant in the defendant’s conduct or consented to the act.
(d) The defendant was an accomplice in the capital offense committed by another person and his participation was relatively minor.
(e) The defendant acted under extreme duress or under the substantial domination of another person.
(f) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements'of law was substantially impaired.
(g) The age of the defendant at the time of the crime.

Appellant points further to the fact that . after the Jackson decision and the effective date of Sections 99-19-101 and 99-19-103, (April 13, 1977), and just before he was put to trial again after reversal, the decision in Gray v. State, 351 So.2d 1342 (Miss.1977), was rendered wherein note was taken of the new statutes, and the Court said that “[j]uries shall be instructed in accordance with the statute in all trials after April 13, 1977, the effective date of the statute.” (351 So.2d at 1349).

He says that “the last sentence gave the new statute retroactive effect forcing the trial court not only to apply the vague directions of Jackson, but also the provisions of the new statute. The effect of this was to remove from consideration of the jury and to disallow the court to instruct the jury regarding several mitigating factors which might have been permissible under the Jackson decision.”

In the Washington case above, 361 So.2d 61, 68 (Miss.1978), this Court declared itself to be “committed to the ‘individualized consideration of mitigating factors’ in each case, and that the only limitation placed on the introduction of evidence of mitigating circumstances is that' it must be reasonably relevant." (Emphasis already there.)

Even if the Jackson decision were vague and unclear, and even if the statutes and the Gray decision above tend further to make for vagueness and lack of clarity, neither of which we find to be true, we are of the view that appellant may not complain, for he was given instructions liberally extending to him the benefit of these factors as mitigating circumstances in the state’s own sentencing instruction:

(1) The. age of the defendant at the time of the crime.
(2) Any mitigating circumstances or combination of mitigating circumstances surrounding his life and character.
(3) Any mitigating circumstances or combination of mitigating circumstances surrounding the commission of the offense with which he is charged.

What circumstances appellant would have had the jury consider do not appear. As argued by the state, under the mitigating principles in the instruction granted, appellant could have presented evidence of lack of murder intention on his part.

We will examine the mitigating circumstances to which testimony was given hereinafter.

Appellant cites and urges the weight of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), but we distinguished it in Washington v. State, supra.

In addition to what we have said, effort has been made in several of our decisions under the statute here controlling to procure review by the United States Supreme Court, only to have certiorari denied by that Court.

Appellant’s second assignment of error attacks the trial court’s failure to sustain his motion to suppress his confession.

The crime of which appellant was accused took place on December 2,1974. About the tenth of December 1974, appellant was in the Jackson County Jail on other charges, and had given a fictitious name. How it was discovered is not clear from the record, but, about that date, Captain Florian Tic-hell of the Biloxi Police Department, investigating the Art’s crime, accompanied by Sergeant Chester of the Biloxi Police Department, went to the Jackson County Jail at Pascagoula, and talked to appellant about the Art’s case, asking him if he was involved in the crime, telling him that J. D. was involved in it, and asking him if he knew anything about it, which he denied. After about a half-hour conversation, the officers left.

On December 14, 1974, Tichell and Officers Chester and Hamilton brought appellant from the Jackson County Jail to the Biloxi Jail. Tichell booked him. During this contact and journey, Art’s case was not discussed with appellant. On December 15, 1974, Tichell asked him for a statement and he told Tichell that, if he had anything to tell him, he would do so the next morning.

On the morning of December 16, 1974, the appellant executed a written waiver of his Miranda rights:

CONSENT TO SPEAK AND WAIVER OF RIGHTS
I, Willie Reddix, Age 18, Date of Birth 7/30/74 [sic] residing at 467 East Davison St. in the City of Biloxi state of Miss, have read this statement of my rights/have had my rights read to me by Capt. Tichell who has identified himself to me as a member of the Biloxi Police Department. I understand what my rights are and I am willing to make a statement and answer questions. I do not want a lawyer at this time, I understand and I know what I am doing. No threats or promises have been made to me, and no pressure or coercion of any kind has been used against me. SIGNATURE: /a/ Willie Reddix Date: 7/16/74 Time: 11:32 A.M. Place: Biloxi Police Department

He, thereupon, gave and signed the confession quoted at length hereinabove at the beginning of which appears the following:

Willie N. Reddix, of the age of 18, residing at 467 East Davison St., City of Biloxi, County of Harrison, State of Miss., have been advised of my rights by Capt. Tichell, of the Biloxi Police Department as follows: Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You, have the right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning. You have this right to the advice and presence of a lawyer. If you cannot afford a lawyer, one will be appointed for you at no expense to you. If you wish to answer questions now, without a lawyer present, you have the right to stop answering questions at any time. You also have the right to stop answering at any time until you talk to a lawyer. I have further been warned and advised that I do not have to make a statement of any kind or character whatsoever, nor do I have to incriminate myself in any way. Further, I have been advised that in the event I do make a statement that the same may be used against me in any court.
After being so advised and cautioned, I do hereby expressly waive my rights to counsel and his advice, and do hereby make the following voluntary statement, freely, without any fear or threat having been made to me, and without any promises of reward of any kind and with the knowledge that this statement that I now make, may be used against me on any trial or trials for the offense or offenses concerning the matter which the follow-' ing voluntary statement is made; that as stated, this statement is made of my own free will without any promise of reward, without any fear or threat of any kind having been made to me, and without any coercion, and without any leniency or offer of leniency being made to me by any person whomsoever.
I further state that I have read this entire statement, initialed all corrections, and signed this statement in the presence of the below listed witnesses, and that it is correct and true as written.
/s/ Florian Tichell /s/ Wiliie Reddix_
(Signature) (Signature)
Capt. Biloxi Police 467 East Division St.
(Title and/or Address) (Address)
/s/ Charles Kriss_
(Signature)
Major B. P. D._
(Title and/or Address)

Following the preliminaries next above, Reddix made the statement hereinabove quoted, to Tichell alone. Appellant would not make any statement if a third person were present, and others, were excluded from the conversation. The record is replete with evidence that he was given his Miranda rights on more than one occasion including this meeting wherein and just before the confession was made.

Appellant says the primary objection to the confession was that it was not free and voluntary because of fears and promises made to him. In the motion to suppress, he said there were no threats, promises, or duress, and Tichell testified to the same. Appellant said Tichell “just told me that he would see what he could do for me,” but he did not promise anything. He further testified that the only reason he gave the statement was to free J. D. from “a lie that they had put on him. He wasn’t involved in it.”

He testified that the officers told him J. D. was charged with capital murder, and they would put him in the gas chamber if found guilty. This testimony is contradicted. Tichell, in rebuttal, also gave evidence that he made no promises to appellant concerning appellant or J. D.

It seems apparent from the record that appellant was concerned about J. D. and what might happen to him, as well he should have been.. The record will not support a conclusion that this earnest concern was used by the officers to overreach him and lead him to an involuntary confession, or that it had that result.

The decision in Agee v. State, 185 So.2d 671 (Miss.1966), collates certain rules relative to'confessions and the taking and use of them.

The State has the burden of proving the voluntariness of a confession. This burden is met by the testimony of an officer, or other person having knowledge of the facts, that the confession was voluntarily made without any threats, coercion, or offer of reward. This makes out a prima facie case for the State on the question of voluntariness. Lee v. State, 236 Miss. 716, 112 So.2d 254 (1959). When objection is made to the introduction of the confession, the accused is entitled to a preliminary hearing on the question of the admissibility of the confession. This hearing is conducted in the absence of the jury. Lee v. State, supra, is also authority for the proposition that when, after the state has made out a prima facie case as to the voluntariness of the confession, the accused offers testimony that violence, threats of violence, or offers of reward induced the confession, then the State must offer all the officers who were present when the accused was questioned and when the confession was signed, or give an adequate reason for the absence of any such witness.
See also Holmes v. State, 211 Miss. 436, 51 So.2d 755 (1951).
(185 So.2d at 673).

In Clemons v. State, 316 So.2d 252 (Miss.1975), the rulé was also stated:

This conflicting evidence presented a question of fact to be determined by the trial judge who was in the best position to observe the witnesses as they testified. We have consistently held that where evidence is conflicting on the question of whether a confession was voluntarily made, that the issue is to be determined by the trial court, and upon review, this Court will not disturb the trial court’s finding unless it appears to be contrary to the evidence. Ivey v. State, 246 Miss. 117, 149 So.2d 520 (1963).
(316 So.2d at 253).

The rules from the Agee decision supra, were all met in the advance inquiry into the validity of the confession, and the trial judge resolved all conflicts in favor of the voluntariness and admissibility of it. We are of the view that his decision is supported by, and not contrary to, the evidence, and the assignment of error that the motion to suppress should have been sustained is not well taken.

Appellant’s third asserted error is in the trial court’s failure to sustain his motion for a mistrial for references made by the prosecuting attorney to a previous trial of the defendant. Lula Mae Bell, whose testimony has been hereinabove summarized, had testified in the earlier trial of appellant on this charge, reversal of which case has also been set out hereinabove. The witness, appellant’s aunt, could not remember earlier testimony, after she had been found to be hostile to the state. Using the record of her testimony in the first jury trial, the district attorney was cross examining her, in the course of which there was this exchange:

Q. Do you remember, Mrs. Bell, my asking you if you saw Willie Reddix in the court room, and you said, “Yes, I do, back on the date you testified here in March of 1975.”
A. I remember that.

Later there was this question or statement by the district attorney:

Q. That’s all I’m asking you. I know it’s hard on you testifying against your nephew but you’ve done it before, and I’m just telling you to tell the truth.

At the first of these exchanges, appellant made a motion for mistrial, and at the last one, the motion was renewed, and when the motion was overruled each time it was made, there was no request that the jury be instructed to disregard the testimony and therefore no error. Clanton v. State, 279 So.2d 599 (Miss.1973).

Appellant relies upon Strong v. State, 199 Miss. 17, 23 So.2d 750 (1945). In that case the defendant had gone into testimony as to another case described as being that of a similar nature to the one on trial, and, as the district attorney was making his argument to the jury, the defendant objected, and the court, noting the defendant had opened the door to the argument, overruled the objection and instructed the jury to consider the present case on its own facts. Assigned as error on appeal, this Court said:

As a general rule it is incompetent and improper to either prove the result of a former trial, or comment thereon, before the jury on a subsequent trial, and that for several obvious reasons (citing authorities). But the question is whether it was reversible error, or error at all, under the peculiar circumstances, of this case. We do not think it was reversible error for these reasons: The question had been opened up and gone into by appellants. The exact status of that litigation was left up in the air before the jurors. It was before them that a former trial had been had on the same charge and the jurors, or some of them, might well have been confused as to how it affected their duties and powers.
(199 Miss. 27, 23 So.2d at 752).

Miller Transporters, Ltd. v. Espey, 187 So.2d 876 (Miss.1966), was a second trial after reversal in this Court. The mandate on that reversal was introduced in evidence. There was objection thereto and its introduction was assigned as error, on the ground that appellant’s rights were prejudiced thereby. This Court disagreed because appellant had “opened the door.” We further observed, however:

The general rule is that opinions and mandates of appellate courts are not proper evidence in the retrial of a cause of action. This is so because the opinion or mandate may advise the jury or comment upon the evidence. Strong v. State, 199 Miss. 17, 27, 23 So.2d 750 (1945); 88 C.J.S. Trial, § 179 at p. 349 (1955). However, in the instant case, the mandate does not review or comment on the evidence in the former trial, and under these circumstances, we cannot say that permitting the mandate to be shown to the jury requires a reversal in this case. Strong v. State, supra.
(187 So.2d at 877).

We fail to find error in this assignment. Having done so, the further observation is made that, although we know Harrison County is densely populated, highly progressive, and with many matters and activities occupying the minds of its people, we are unable to attribute to the jury in this case a degree of naivete that would cause on its part an unawareness of the earlier trial, conviction, and reversal, but would know of it arising, if not earlier, from the voir dire testing of their qualifications to sit as jurors, and the fact that Lula Mae Bell had testified before in a case apparently with facts similar to these (although she was the state’s first witness.)

The fourth assignment of error arises from the court’s allowing into evidence of testimony of a wrench recovered by Officer Tichell.

Appellant’s confession, held hereinabove properly admitted in evidence, had shown Jones wielded a Stilson wrench in the murder of the victim. Tichell, who took the confession, was on cross examination, when these questions were asked and answered:

Q. And you would also agree that Willie told you that Larry hit the man three times with a Stilson wrench?
A. Yes, sir.
Q. That was what Willie told you on that date?
A. Yes, sir.
Q. Willie also told you about a Stilson wrench, did he not?
A. Yes.
Q. Did you ask him any further questions about that Stilson wrench?
A. Not that day, no.
Q. Did you ask him on another occasion about the Stilson wrench?
A. Yes, after I recovered the wrench, I asked him about it.
Q. After you recovered the wrench?
A. Yes.
Q. Where did you recover the wrench?
A. I recovered the wrench from a Mr. Harris on Nixon Street.
Q. When did you recover that?
A. Oh, about maybe one day, maybe two days later.
Q. What did you ask Willie about the wrench?
A. When I recovered the wrench, I asked Willie was that the wrench. He identified that as being the wrench that was used.
BY MR. HENRY: We would ask that the jury be excused at this time.

The jury was excused, and there was further questioning, and discussion between counsel as to a stipulation earlier made which might keep the wrench (and the testimony about it) from being in this record. The jury returned to the courtroom, and the state, on redirect, asked Tichell the question:

Q. What did the defendant tell you about the wrench?

A general objection was made by the appellant, which was sustained as to the form of the question.. The wrench was made an exhibit for identification, and later an objection was sustained to the state’s offer of it and some other exhibits already in the record for identification. Hence, it was never admitted into evidence.

From what we have just quoted and delineated from the record it is seen that the matter of the location of the wrench and its identification as being that used in the robbery were matters first injected into the record by appellant on cross examination, and whatever damage there was to appellant’s defense was done, or largely done, by appellant. Without further citation of authority the Strong and Miller Transporter decisions supra are’ a complete answer to this self-made error and the state did not cause it at all.

Appellee’s brief quotes from State v. Apple, 121 N.C. 584, 28 S.E. 469, 470 (1897): “If the defendant goes fishing in the state’s waters, he must take such fish as he catches.”

We conclude that appellant may not assert this as error.

Appellant assigns as his fifth error that the state should not have been allowed to present evidence of convictions, that occurred subsequent to the offense for which the appellant was on trial.

The offense, the basis for the indictment herein, took place on December 2, 1974. In March 1975 appellant was convicted and sentenced in this case. An appeal was taken to this Court. On November 20, 1975, he entered pleas of guilty to two charges of armed robbery and two charges of kidnapping in the Circuit Court of Jackson County. On March 2, 1977, this Court reversed the conviction and sentence in this cause, and remanded the cause for new trial. The new trial took place in December, 1977, and in that trial proof of his conviction on guilty pleas of armed robbery and kidnapping was introduced in evidence during the sentencing phase. Appellant objected to this proof “on the grounds that these are offered under an ex post facto statute.”

Section 99-19-101(5)(b) (1979 Supp.) lists as one of the limited number of aggravating circumstances which may be proven in the sentencing phase of a capital murder case,

(b) The defendant was previously convicted of another capital offense or of a felony involving the use or threat of violence to the person.

• This'question arose in the companion case of Jones v. State, 381 So.2d 983 (Miss.1980), and it was there said:

Another problem which deserves comment arose in the sentencing phase. The lower court admitted evidence of an armed robbery conviction of the appellant entered after the December 2, 1974, murder of Weinburger. This conviction was affirmed on appeal in a per curiam opinion. Jones v. State, 340 So.2d 17 (Miss.1976).
Among the aggravating circumstances available for consideration in capital cases under Mississippi Code Annotated section 99-19-101 (Supp.1979), subsection (5)(b) is that: “The defendant was previously convicted of another capital offense or of a felony involving the use or threat of violence to the person.” (Emphasis added). In employing the word “previously”, the statute designates no time frame. The question arises as to whether the legislature meant previous to the commission of the capital offense or previous to the trial for it.
We conclude the legislature intended to relate the word “previously” to the time of trial, so that a conviction between the time the capital .offense was committed and the time of trial for it may be admitted into evidence as an aggravating circumstance. We think this, because a wide leeway is permitted the appellant to offer mitigating circumstances in avoidance of the death sentence, while an extremely limited type of behavior may be offered by the state in seeking capital punishment. In our opinion, the legislature undoubtedly intended a weighing of both at the time of sentencing so the past behavioral patterns likely to affect the defendant’s future behavior might be evaluated by the jury in deciding whether the defendant will live or die. We think there is no more justification for terminating consideration of the defendant’s criminal behavior at the time of the offense than there is for terminating consideration of favorable behavior at that time. All go to the question of whether the most severe punishment will serve a legitimate social purpose untainted by vindictiveness.

Thus, we have committed ourselves to a position contrary to appellant’s present assertion of error.

In the sixth place, appellant says state’s instruction No. 3 (on the sentencing phase) should not have been submitted to the jury.

In the sentencing phase of the case, the state showed as aggravating circumstances two pleas of guilty and sentences on indictments charging appellant with kidnapping and two pleas of guilty and sentences on indictments charging appellant with armed robbery, all in the Circuit Court of Jackson County. (These, as shown hereinabove, were crimes committed after the fatal assault on the victim in this case.)

Following the proof by the state next above, appellant produced James Wren, the Harrison County Sheriff’s jailer for the Second District of that county, who testified that he had known appellant in the jail, and knew his general reputation for peace or violence and it was good. On cross examination, he said all he knew was what he had learned in six months of acquaintance with appellant from people in the jail, and that what he was saying was that appellant had not given him any trouble.

Appellant brought his mother to the stand, and she, Annie Lee Reddix, testified that he had gone to the eighth grade in school.

As his final witness in the sentencing phase, appellant brought Richard Spencer, Harrison County Deputy Sheriff, assigned to the Second District Jail at Biloxi, who testified that, as to appellant’s reputation for peace or violence, some say one thing and others say another, but that they had no trouble, with him at the jail.

On mitigating circumstances, two instructions were given, the appellant requesting none.

The burden of appellant’s argument here is that the court should have given more precisely, and in more detail, mitigating circumstances and that there are degrees or various weights of circumstances, and that one circumstance may be sufficient to outweigh all opposing circumstances in the record. As we treated this instruction early in this opinion, the jury was much more favorably instructed than required under section 99-19-101. The jury was instructed that “any mitigating circumstances or combination of mitigating circumstances surrounding his life and character” and “any mitigating circumstances or combination of mitigating circumstances surrounding the commission of the offense with which he is charged,” were for its consideration.

Appellant maintains that there should have been spelled out as mitigating circumstances, for instance, that appellant had no specific intent to cause the death of the victim, but nobody said he did not, and the record shows he purposely diverted the victim’s attention until his accomplice could deliver the fatal blows. He further argues that appellant was an accomplice whose participation was relatively minor, but this, too, is contrary to the proof which showed him on an equal footing with Jones in the crime.

In addition to the absence of a record supporting these asserted mitigating circumstances, appellant could have requested an instruction embodying them, and then, if refused, assigned the refusal as error.

Under Newell v. State, 308 So.2d 71 (Miss.1975), for failure to instruct without specific request therefor, the Court may not be put in error as here undertaken. Voyles v. State, 362 So.2d 1236 (Miss.1978), certiorari denied, 441 U.S. 956, 99 S.Ct. 2184, 60 L.Ed.2d 1059 (1979); Washington v. State, 361 So.2d 61 (Miss.1978); certiorari denied, 441 U.S. 916, 99 S.Ct. 2016, 60 L.Ed.2d 388 (1979); Irving v. State, 361 So.2d 1360 (Miss.1978); certiorari denied, 441 U.S. 913, 99 S.Ct. 2014, 60 L.Ed.2d 386 (1979); Jordan v. State, 365 So.2d 1198 (Miss.1979); certiorari denied, - U.S. ——, 100 S.Ct. 175, 62 L.Ed.2d 114 (1979).

In the Lockett decision supra, appellant quotes in support of his thesis the following:

We conclude that the Eighth and Fourteenth Amendments require that the sen-tencer, in all but the rarest kind of capital case, not be precluded from considering as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.
(Emphasis not by us).
(438 U.S. at 604, 98 S.Ct. at 2965, 57 L.Ed.2d at 990).

We are of the view that the trial, including the instruction attacked, complied well with this requirement.

The seventh assignment of error is that the death penalty was imposed under the influence of passion, prejudice or other arbitrary factors.

Basis for this assignment is threefold: (1) the gruesome pictures admitted in evidence; (2) Dr. Bazzone’s description of the victim’s wounds; and (3) the Stilson wrench testimony noticed in assignment of error No. 4 above.

Appellant cites no authority, but we notice his arguments nevertheless. In addition to citing no authority it is evident in the record that there was no objection to the pictures or to the physician’s rather detailed description of the wounds, emergency treatment of them, and' their being the cause of his death. Appellant also complains that Dr. Bazzone’s testimony established the cause-of-death element of the corpus delicti.

We recognize that pictures can be gruesome and repelling. There comes to mind no picture portraying wounds such as here present that might be pleasantly attractive. We have consistently held that the competency, relevancy, and materiality of photographs are within the sound discretion of the trial judge, who will also determine whether such pictures have legitimate evi-dentiary. purpose or value. Thi.s holding extended to the death penalty cases of Voyles v. State, supra, and Irving v. State, supra.

We have sufficiently dealt with, and disposed of, the Stilson wrench testimony, now here again argued.

It is argued, also, that the use of the same jury in both the guilt phase and the sentencing hearing was prejudicial to appellant, this jury, at the guilt stage, having heard Dr. Bazzone’s testimony and the Stil-son wrench evidence, and having seen the photographs of the victim. Section 99-19-, 101(1) provides for use of the same jury for both hearings, although it does not necessarily so mandate. There was no objection to this procedure nor was there request that another jury hear the sentencing case.

We find this assignment to be without merit.

Appellant’s eighth and final assignment is that the sentence of death is disproportionate to the penalty imposed in similar cases, considering both the crime and the appellant.

It was not necessary that appellant have any design to effect the victim’s death, while appellant was engaged to the commission of the crime of robbery. He and Jones, his accomplice, had a plan for and in what they were about. It is argued that the record does not show what the plan was. The poet said that the best study of mankind is man, and Holy Writ says, “By their fruits ye shall know them.” There is no showing in this record that anything unanticipated occurred, to throw them off balance or to change their course. Holding the victim’s attention from Jones was as much a part of Jones’ bludgeoning the victim as if appellant had physically restrained him while his head was being crushed.

In Culberson v. State, 379 So.2d 499 (Miss.1979), this Court unanimous in its decision of guilt, said:

Presently, we can say without doubt the appellant schemed and participated in the unlawful undertaking which resulted in death. The subjunctive nature of the intention to kill makes it no less deliberate and no less deserving of capital punishment than if it had been expressed, in our opinion. The felon who causes death in furthering his crime manifests a callous disregard for human life, because ,he subordinates the life of the innocent to his desire for gain, thereby inviting the outrage of a society understandably bent upon protecting itself from physical violence.

Price v. State, 362 So.2d 204 (Miss.1978), while it involved a party found guilty and sentenced to life imprisonment in a bifurcated hearing in a capital murder case, states again the law in this way:

It is also familiar law that when two or more persons act in concert, with a common design, in committing a crime of violence upon others, and a homicide committed by one of them is incident to the execution of the common design, both are criminally liable for the homicide. McNeer v. State, 228 Miss. 308, 87 So.2d 568 (1956). The fact that the accused did not fire the fatal shot does not relieve him from criminal responsibility for the death of Mrs. Green who was slain by the accused’s confederate in carrying out the common design to rob. Carrol v. State, 183 Miss. 1, 183 So. 703 (1938).
(362 So.2d at 205).

The Lockett case, supra, involved the conviction of a party to a murder in connection with a robbery. The convicted person was not in the shop when the shop owner was killed. The conviction was reversed, not because there was shown no intent on her part, but rather because, in the opinion of the United States Supreme Court, the Ohio statute under which she was convicted improperly limited the permissible mitigating factors, not including defendant’s minor role among the partners in the crime.

By mandate of the statute we have reviewed the following capital murder cases: Jones v. State, 381 So.2d 983 (Miss.1980); (companion case to this one); Culberson v. State, 379 So.2d 499 (Miss.1979); Gray v. State, 375 So.2d 994 (Miss.1979); Jordan v. State, 365 So.2d 1198 (Miss.1979); Voyles v. State, 362 So.2d 1236 (Miss.1978); Price v. State, 362 So.2d 205 (Miss.1978); Irving v. State, 361 So.2d 1360 (Miss.1978); Washington v. State, 361 So.2d 61 (Miss.1978); Bell v. State, 360 So.2d 1206 (Miss.1978); Nealy v. State, 354 So.2d 78 (Miss.1978); and Hill V. State, 339 So.2d 1382 (Miss.1976). In these cases there is no death sentence of one not physically acting or assisting in the killing, as is the situation here. Neither is it true that there was one planned and. executed in more deliberate fashion than the one now before us.

In the companion case, Jones v. State, 381 So.2d 983 (Miss.1980), the majority of this Court affirmed the death sentence and mandated its execution. An examination of the appeal record in that case reveals these differences between that case and this one:

(1) The district attorney’s argument before the jury wherein he made a comment that probably bore upon appellant Jones’ failure to testify.

(2) The Jones jury, after 214 hours of deliberation, reported to the Court that it could not reach a unanimous verdict. “What shall we do?” Thereupon, the Court was recessed until the next morning.

(3) Jones- was a borderline to mentally retarded man.

(4) There was no confession in that case.

(5) No eye witness testified in that case.

(6) J. D. (the co-indictee with this appellant and Jones), took a sentence for a lesser crime and for a shorter incarceration and was one of the main witnesses for the state.

These infirmities in the Jones trial are not present here, and we consider that guilt here present is much more strongly established here than in Jones’ case.

Considering the crime and the appellant, we do not conclude that the death sentence is excessive and disproportionate to that imposed in similar cases.

Hence, we fail to find merit in any of the asserted errors.

Under Mississippi Code Annotated, section 99-19-105 (Supp.1978), automatic appellate review of this case is necessary on our part, and we have reviewed the record on the errors assigned and in search of errors not-assigned.

In doing so, we have considered the punishment prescribed by the sentencing phase jury, and have next above recorded our view and conclusions relative thereto. We find the death sentence not to have been imposed under the influence of passion, prejudice, or any other arbitrary factors; that the evidence supports the jury’s finding that the aggravating circumstances are not outweighed by the mitigating circumstances, and that the death sentence is not excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

The jury’s verdict signed by the foreman thereof is as follows:

We the jury unanimously find from the evidence and beyond reasonable doubt that the capital murder in this case was committed while the defendant was engaged in the commission of the crime of robbery; that the capital offense was especially heinous, atrocious and cruel; and that the defendant has been previously convicted of a felony involving the use or threat of violence to the person. We further find unanimously from the evidence and beyond a reasonable doubt that after weighing mitigating circumstances and the aggravating circumstances, one against the other, that the mitigating circumstances do not outweigh the aggravating circumstances and • that the defendant should suffer the penalty of death.

We affirm the conviction and sentence and set the 19th day of March, 1980 as the date for execution of the sentence.

AFFIRMED.

PATTERSON, C. J., SMITH, and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.


text:
    DEPOSITORS SAVINGS ASSOCIATION, a Mississippi Corporation, v. MOORE AND McCALEB, INC., a Mississippi Corporation.
    No. 51639.
    Supreme Court of Mississippi.
    Feb. 20, 1980.
    Rehearing Denied April 16, 1980.
    Mitchell, Eskridge, Voge, Clayton & Beasley, Jeremy J. Eskridge, Tupelo, for appellant.
    Parker, Averill & Butts, David O. Butts, Tupelo, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   Appeal from Chancery Court, Lee County; Fred P. Wright, Chancellor.

AFFIRMED ON DIRECT AND CROSS-APPEALS.

PATTERSON, C. J., SMITH, P. J., and SUGG, BROOM, BOWLING and COFER, JJ., concur.