author: DAN M. LEE, Justice, ROBERTSON, Justice,

text:
    Robert GROSECLOSE v. STATE of Mississippi.
    No. 53894.
    Supreme Court of Mississippi.
    Oct. 12, 1983.
    Rehearing Denied Nov. 23, 1983.

      Ross R. Barnett, Sr., Barnett, Montgomery, McClintock & Cunningham, E. Hugh Cunningham, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Bill Patterson, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, DAN M. LEE and ROBERTSON, JJ.
   DAN M. LEE, Justice,

for the Court:

I.

On April 4, 1981, Robert Groseclose shot and killed his ex-father-in-law, John Mulh-earn, Sr. He was convicted of murder in the Circuit Court of Jefferson County and sentenced to life imprisonment.

The issue of Groseclose’s sanity on April 4, 1981, predominated at trial. In spite of impressive expert testimony that Groseclose was insane, the jury convicted. Under our familiar and normally laudable rules limiting our power to review jury verdicts in criminal cases, we must affirm.

II.

A.

The facts of this tragic killing of an innocent citizen are not disputed.

By way of background, Robert Groseclose and Ruth Mulhearn were married in 1966. Three children were born of their union. The family lived in Texas. By 1976 it had become evident that Groseclose was seriously mentally ill. Various attempts at treatment, including three hospitalizations, accomplished little — in substantial part because Groseclose refused to cooperate.

All of this led to the divorce of Ruth and Robert Groseclose in November of 1980. Ruth resumed her maiden name, Mulhearn, obtained custody of the three children, and moved to her father’s home outside of Natchez, Mississippi.

Some six months later, on April 4, 1981, Groseclose came to visit. Ruth, her father, John Mulhearn, Sr., and two of the children were at home. Ruth and Robert met outside. After several moments of seemingly normal conversation, Ruth noticed Robert walking toward her pointing a gun directly at her.

Groseclose said, “You’re not going to poison my children’s minds any more. I’m going to blow your head off.” Ruth began pleading for her life and screamed for help. She dropped to the ground as Groseclose began firing. She crawled around the car. Groseclose pursued. When directly in front of the car, he held the gun on the hood and pointed it directly at Ruth’s head saying, “I’m going to kill you. I’m going to blow your head off.” Ruth kept ducking and crawling around the car until she bumped into something, looked down, and saw her father lying there on the ground, his hand nearly blown off and blood everywhere. “Bob, you shot daddy!” she screamed.

Law enforcement authorities were ultimately summoned to the Mulhearn residence. When they arrived, they found Gro-seclose standing in the driveway holding a gun. He pointed out John Mulhearn, Sr. who was lying on the ground, dead.

A deputy sheriff placed Groseclose under arrest, read him his rights, and searched him, finding a knife in the back of his belt. Asked why he had the knife, Groseclose replied, “Sometimes a gun won’t shoot.” Groseclose added, “I’ve done what I come to do.”

B.

The bulk of the trial concerned Grosec-lose’s mental illness. Ms. Mulhearn described her ex-husband as “a mean man”. She stated that three or four years earlier he had been diagnosed as having a chemical imbalance. He had a serious drinking problem, which, in turn, was compounded’ by drug use. Groseclose was admitted to hospitals for mental treatment in Abilene, Texas, Chicago, Illinois, and Kerrville, Texas. He was prescribed medication but often refused to take it.

The defense offered three expert witnesses, Dr. Donald C. Guild and Dr. Robert L. McKinley, Jr., both psychiatrists, and Dr. Charleton S. Stanley, a psychologist. Each had examined and treated Groseclose extensively at the Mississippi State Hospital at Whitfield following his arrest but prior to trial.

The psychiatric and psychological history fills hundreds of pages in the record. No useful purpose would be served in reciting it here. Suffice it to say that Drs. Guild, McKinley and Stanley were unanimous in their opinion that Groseclose was severely mentally ill. The diagnosis assigned was schizophrenia, paranoid type, chronic, severe. Each testified at trial, relying upon a substantial foundation in the record, that at the time of the shooting Groseclose did not know the difference between right and wrong and that he lacked substantial capacity to appreciate the nature and quality of his actions.

Summarizing the cross-examination, the State concentrated on the seemingly normal things that Groseclose did on April 4, 1981. At various times one or more of the experts conceded that Groseclose’s actions on that day could indicate that he knew the nature and quality of his actions.

In rebuttal, the State called eight lay witnesses, each of whom had observed Gro-seclose at various times just prior to or just subsequent to the shooting. Mrs. Frank Walden testified she picked Groseclose up hitchhiking. She said there was nothing unusual about him. Justice Court Judge John Bailey had observed Groseclose for some 30 to 45 minutes on the morning in question and in his opinion Groseclose knew right from wrong. Deputy Sheriff Don Ward was the first law enforcement officer to arrive on the scene. He remained for approximately one hour. He testified that in his opinion Groseclose knew right from wrong and could appreciate the quality of his actions.

Sharon Powell, who lived some 35 miles from Natchez, was called as a witness by the State. She testified that on April 4, 1981, Groseclose came to her door and asked if she. would buy his shotgun. He said he needed gas but had no money. He said he was going to his ex-wife’s home in Natchez. She did not buy his shotgun, but did take him to the store and help him get some gas. She testified that Groseclose appeared normal, that she was not afraid of him.

Tina Thorpe testified that Groseclose came into her store with Mrs. Powell to get gas on the day of the shooting. She said he appeared perfectly rational and normal. Tom Coleman, a highway patrolman, found Groseclose stopped on the side of the road on April 4, 1981, and took him to get gas. Coleman was with Groseclose for approximately ten minutes. He said Groseclose appeared rational and normal. Coleman testified that he later responded to a call for help in transporting a murder suspect back to town. He arrived at the Mulhearn residence and saw Groseclose. Coleman said Groseclose recognized him and thanked him for the help he had given him on the highway earlier that day.

Deputy Sheriff Jimmy Wallace also saw Groseclose for approximately ten minutes on April 4, 1981. He said that Groseclose had the ability to appreciate the nature and quality of his actions.

Ruth Mulhearn and her brother, John Mulhearn, Sr., were hardly disinterested witnesses. Still each testified to having known Groseclose for approximately 15 years. Each saw him for approximately 30 minutes on April 4, 1981. Each offered an opinion that Groseclose was sane at the time of the killing.

C.

At the conclusion of all of the evidence, the jury was fully and adequately' instructed regarding the principal issue in the case, that of the Defendant Groseclose’s sanity at the time of the killing. In due course the jury returned a verdict of guilty of the crime of murder. On October 28, 1981, Groseclose filed a motion for judgment of acquittal notwithstanding the verdict of the jury or, in the alternative, for a new trial. That motion was amended on November 3, 1981, and was in due course overruled. This appeal has followed.

III.

By far the most serious error assigned is that the jury’s verdict is against the overwhelming weight of the evidence and that, accordingly, a new trial should be ordered. We have literally hundreds of decisions considering the circumstances under which we will vacate a jury’s verdict in a criminal case and remand for a new trial. We will not order a new trial unless convinced that the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice. Pearson v. State, 428 So.2d 1361, 1364 (Miss.1983). Any less stringent rule would denigrate the constitutional power and responsibility of the jury in our criminal justice system.

In criminal cases generally, we have repeatedly stated our view of the role and function of the jury. For example, in Gandy v. State, 373 So.2d 1042 (Miss.1979), we wrote:

Jurors are permitted, indeed have the duty, to resolve the conflicts in the testimony they hear. They may believe or disbelieve, accept or reject the utterances of any witness. No formula dictates the manner in which jurors resolve conflicting testimony into finding of fact sufficient to support their verdict. That resolution results from the jurors hearing and observing the witnesses as they testify, augumented by the composite reasoning of twelve individuals sworn to return a true verdict. A reviewing court cannot and need not determine with exactitude which witness or what testimony the jury believed or disbelieved in arriving at its verdict. It is enough that the conflicting evidence presented a factual dispute for jury resolution. Shannon v. State, 321 So.2d 1 (Miss.1975) 373 So.2d at 1045.

In Bond v. State, 249 Miss. 352, 162 So.2d 510 (1964), this Court stated:

It is the function of the jury to pass upon the credibility of the evidence. Scott v. State, 185 Miss. 454, 188 So. 546. Only two witnesses testified for the state as to what happened at the scene of the homicide, while many more testified for the defense. However, the strength or weakness of testimony is not measured by the number of witnesses. Spiers v. State, 231 Miss. 307, 94 So.2d 803. In a criminal prosecution, the jury may accept the testimony of some witnesses and reject that of others, and may accept in part and reject in part the testimony of any witnesses, or may believe part of the evidence on behalf of the state and part of that for the accused, and the credibility of such witnesses is not for the reviewing court, but only for the jury. Ivey v. State, 206 Miss. 734, 40 So.2d 609; Cobb v. State, 235 Miss. 57, 108 So.2d 719; Matthews v. State, 243 Miss. 568, 139 So.2d 386, 249 Miss. at 357, 162 So.2d at 512.

We apply these well settled principles to the case at bar. In doing so, we note that this is not the first time we have confronted the sort of record we have before us — one where at trial the psychiatric testimony overwhelmingly supports the proposition that the accused was insane at the time of his criminal actions, but where lay testimony, particularly that from law enforcement officers is to the contrary. We have carefully reviewed these earlier cases, such as Gambrell v. State, 238 Miss. 892, 120 So.2d 758 (1960); and Holloway v. State, 312 So.2d 700 (Miss.1975) and have compared and contrasted those decisions with Smith v. State, 245 So.2d 583 (Miss.1971); and Lias v. State, 362 So.2d 198 (Miss.1978).

In Gambrell and Holloway we held that, on the facts of those cases, guilty verdicts were against the overwhelming weight of the evidence. In Smith and Lias the facts were such that the jury verdicts were not disturbed. Thoughtful and candid consideration will make clear that these decisions are not wholly consistent one with the other. We take the Lias case, however, as this Court’s most recent attempt to deal with this perplexing problem, as setting forth the principles we ought follow here.

Psychiatric and psychological expert witness testimony, while admissible and indeed quite desirable, is not the last word. Lay testimony has long been recognized as being equally admissible and useful where the insanity defense is tendered. Smith v. State, supra, 245 So.2d at 585; Lias v. State, supra, 362 So.2d at 201. Expert witnesses cannot recreate what occurred in the accused’s mind at the time of the criminal act, nor could they, even if they were there, look inside that mind and ascertain what was there. As in all branches of medicine, they must of necessity rely substantially on history. It is within the actual and judicial knowledge of this Court that mental health professionals routinely place great reliance upon history obtained from lay witnesses. Our law does no less when it accepts the admissibility of lay witness testimony.

Having in mind our limited scope of review, and having well in mind the testimony of the various lay witnesses recited in Section II above, there was indeed before the jury an evidentiary basis upon which a verdict of guilty could be based. Accordingly, Groseclose’s motion for judgment of acquittal notwithstanding the verdict was correctly overruled.

Similarly, the substantial lay testimony in this record is sufficient to require a holding here that the verdict was not so contrary to the overwhelming weight of the evidence as to require a new trial. We say this on the authority of Lias v. State, 362 So.2d 198 (Miss.1978) and out of our recognition that institutional and practical considerations mandate that in insanity defense cases, perhaps more than any other, a jury’s verdict ought be given great respect and deference.

IV.

Groseclose assigns as error the trial judge’s .admission into evidence a single photograph depicting the victim’s body. This photograph showed the positioning of the body at the time the law enforcement officers arrived at the scene. It is not inordinately gruesome. Its receipt into evidence was well within the trial judge’s discretion. Hogan v. State, 366 So.2d 1089 (Miss.1979). Bruce v. State, 349 So.2d 1068, 1071 (Miss.1977); Curry v. State, 328 So.2d 328, 330 (Miss.1976); May v. State, 199 So.2d 635, 640 (Miss.1967). We decline to disturb the trial judge’s ruling.

V.

Groseclose next complains of the trial judge’s refusal to grant defendant’s Instruction D-18, which reads as follows:

The Court instructs the Jury that if you determine from the credible evidence in this case that the Defendant could very possibly have been, or actually was, insane at the time of the shooting on April 4,1981, then it is your sworn duty to find the Defendant not guilty by reason on insanity.

He argues that this instruction was essential to the fair presentation of his insanity defense to the jury.

A review of the record makes it clear that the trial judge granted at the Defendant’s request six instructions covering various features of the insanity defense, those being Instructions D-2, D-5, D-7, D-8, D-9 and D-12. These Instructions, coupled with State’s Instructions S — 1, S-2 and S-7 make it clear that the jury was more than adequately instructed on the insanity issue.

As announced by this Court many times, all instructions should be read together, and if the jury is fully and fairly instructed by other instructions, the refusal of a similar instruction .is not reversible error. Barr v. State, 359 So.2d 334, 338 (Miss.1978).

Cf. Wilson v. State, 390 So.2d 575 (Miss.1980); Jones v. State, 381 So.2d 983, cert. den. 449 U.S. 1003, 101 S.Ct. 543, 66 L.Ed.2d 300 (Miss.1980). This same sentiment was expressed in McWilliams v. State, 338 So.2d 804 (Miss.1976):

The trial court is not required to instruct the jury over and over on a principle of law, even though some variations are used in different instructions. 338 So.2d at 806.

Beyond that, the Instruction D-18 is confusing. It should not have been given as written. Smith v. State, 296 So.2d 678, 682 (Miss.1974); Rush v. State, 278 So.2d 456, 458 (Miss.1973).

Groseclose’s assignment of error here is without merit.

VI.

We have considered the other errors assigned by Groseclose and find none well taken nor warranting discussion. We, therefore, affirm.

AFFIRMED.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, HAWKINS, PRATHER and ROBERTSON, JJ., concur.

BOWLING, J., not participating.

ROBERTSON, Justice,

specially concurring:

A.

Though we affirm this has been a most troublesome case. To be sure, when the heretofore existing positive rules of law stating the insanity defense, coupled with those rules regulating our scope of review, are applied here, affirmance is required, though the question is close. I write further because of the bankruptcy of the insanity defense laid bare in this case.

In this state the insanity defense is judge-made. That insanity is a defense to a criminal indictment is stated in no rule of law emanating from our legislature. Similarly, the familiar (though oft criticized) M’Naghten Rule — the right and wrong test — was first announced by the English House of Lords [M’Naghten’s Case, 10 Clark & F. 200, 8 Eng.Rep. 718 (1843)], and has persisted to this date as the articulate expression of the judicial branch of the sovereign.

All of which is to say that when and if a better way appears, it is this Court’s job to modify — or abolish — the insanity defense.

B.

Under our law insanity is a question of fact. Witnesses are presented pro and con. The jury is instructed, and then asked to determine whether the defendant was legally sane at the time of his actions — as though he either was or was not, there being no in-between. When we do this we proceed on a false premise. There is here nothing but an in-between. No defendant was in fact absolutely sane or absolutely insane. All were somewhere in between. We are thus dealing here with a fact issue fundamentally different from other fact issues submitted to juries.

In all other instances there is the a priori assumption that the underlying fact is an either/or proposition. Such questions generally are centered on an occurrence everyone knows either did or did not happen, a condition that either did or did not exist, no shades of gray. For example, Robert Gro-seclose either did or did not fire a weapon that killed John Mulhearn, Sr. Witnesses may have different memories. They may have observed the occurrence from different vantage points. Sorting out just what happened is often difficult, but no one doubts that the truth ultimately is an either/or — Groseclose did or did not shoot Mulhearn. Shades of gray exist only in the witness’ testimony, not in the underlying occurrence.

Here we engage in a qualitatively different factual inquiry. In litigating the sanity of the defendant, we begin with the certain knowledge that we do not deal with an either/or. Groseclose was not either sane or insane. We know with certainty that he was somewhere in-between — with the witnesses’ testimony to be weighed and evaluated to see how much light each sheds toward revealing where on the scale (which is hardly linear) Groseclose may be found.

The problem is compounded. The causal connection between Groseclose’s mental state and his killing of Mr. Mulhearn is likewise not an either/or but another somewhere-in-between. Assuming it could be established that in fact Groseclose was insane at the time of his actions, determining with any precision whether and to what extent his criminal act may have been the product of his insanity is a nevertheless hopeless inquiry. In almost every case where the defendant is suffering from serious mental illness, the answer will be that his actions in part were the product of the mental illness and in part the product of other factors.

We are dealing with a state of mind, an intangible and an emphemeral one at that. The accused’s state of mind is not susceptible of objective testimony. It cannot be photographed. It can be witnessed only indirectly and circumstantially and then only in imprecise and often unintelligible glimpses of symptoms.

As if the jury’s job weren’t tough enough, add another complexity. The illness from which Robert Groseclose suffers is particularly susceptible of misunderstanding by lay persons. Severely ill persons may appear entirely normal and rational to the untrained observer. I have no doubt that the lay witnesses offered by the State were honest and sincere. Yet not one of them uttered a word inconsistent with Grosec-lose’s primary diagnosis: schizophrenia, paranoid type, chronic, severe.

I say all of this before noting the most familiar problem of all — the inadequacies of the M’Naghten Rule: the right and wrong test. Few defend the M’Naghten Rule as stating ai meaningful test for determining whether one criminally accused was or ought be held legally liable for his actions. It once seemed only a matter of time before the rule would vanish from our jurisprudence. This trend away from the M’Naghten Rule has been arrested. I suggest that this is not because of any renewed confidence in the rule, rather a recognition that the proposed new cognitive and volitional tests aren’t working either.

In short, the nature of the task of determining whether one is sane is such that it is beyond the ken of the most conscientious person, be he psychiatrist or juror. The rules of law we have given our jurors to work with render an impossible task a near farce. The insanity defense as it is stated in our law and administered by our juries has reached a state of bankruptcy.

C.

No help will come if all we do is treat the symptoms. Changing the test for insanity is not the answer. The problem is more fundamental. Stated another way, our patient’s illness may well be terminal as well as congenital.

This case demonstrates more than anything else that law simply must remain in touch with moral beliefs prevailing in enlightened society. As is the . case in so many contexts, the jury links the law to widely held societal values. See, e.g., Woodson v. North Carolina, 428 U.S. 280, 295-296, 96 5.Ct. 2978, 2986-2987, 49 L.Ed.2d 944, 955-956 (1976); Coker v. Georgia, 433 U.S. 584, 596, 97 S.Ct. 2861, 2868, 53 L.Ed.2d 982, 992 (1977). History teaches that this link is often maintained through jury nullification, a refusal to accept laws too far “out of touch”. This is what has happened here. The true verdict of the jury, I suspect, is that one should not be acquitted for murder even though he be severely mentally ill.

This act of jury nullification, if in fact this is what has occurred, was not irrational. In most cases where the defendant is in fact severely mentally ill, a not guilty verdict by reason of insanity may nevertheless be wholly contrary to accepted societal ends and human values.

For the security and protection of society, incapacitation of the defendant (via incarceration) may be necessary. An acquittal by reason of insanity may undermine the deterrent effect of the State’s scheme of criminal penalties. The accused may be in need of mental treatment to which he will not voluntarily submit. This is particularly true where he needs drug therapy.

That the individual is mentally ill does not necessarily mean that he will not experience and learn from his punishment. Conversely, that the defendant is mentally ill does not alter the societal imperative that serious criminal actions not be deprecated.

D.

There is a practical point that need be noted. An acquittal by reason of insanity would have resulted in Groseclose being committed most likely to the Mississippi State Hospital at Whitfield. While we cannot be certain of this, he would quite likely have been maintained there for treatment for a substantial period of time. Essentially the same thing will happen anyway. The conviction we affirm here means that Gro-seclose will be held in the custody of the Mississippi Department of Corrections where, I suspect, the same course of treatment for his mental illness will and ought be followed. Beyond that, Groseclose’s parole eligibility suggests the possibility that the timing of Groseclose’s release back into society will not differ substantially from what would have been the case had he been found not guilty by reason of insanity and committed to the Mississippi State Hospital at Whitfield.

E.

All of these considerations point in a single direction: the abolition of the insanity defense.

The course, which at present appears to have much to commend it, is that consideration of any mental illness from which the defendant may have been suffering at the time of his actions be postponed until sentencing. A criminal trial ought be held for the purpose of determining whether the defendant committed the act with which he had been charged. Whether he was insane seems more relevant to sentence or disposition. All of this would suggest a procedure which is already a part of our Uniform Criminal Rules of Circuit Court Practice. See Rule 5.13. At the conclusion of the guilt phase trial, if the defendant wished to raise the issue of insanity, he could then do so at a separate hearing — but with his proof going solely to the question of what sentence or disposition should be made in his case.

There would be a practical benefit to the procedure contemplated here. Our present procedure places the defendant and his lawyer in an impossible tactical dilemma as trial approaches. Does he deny committing the act charged and, in effect, waive the insanity defense? Or does he concede commission of the act but claim that he was insane at the time? Experienced trial lawyers know the futility of appearing before a jury with alternative theories of defense. Because of this dilemma valid considerations often are not effectively presented to or considered by the jury. Moving the insanity issue to the sentencing phase hearing would allow full and complete consideration of the fact question surrounding guilt or innocence unencumbered by testimony on insanity. In the event of a conviction, the insanity issue could then be developed fully at the sentencing hearing.

F.

I stop short of urging that we now abandon or modify our traditional rules regarding the defense of insanity. In the first place, neither the Defendant nor the State has asked us to make a change. Far more important, however, I am aware of what a major step this would be in our criminal jurisprudence. Where most criminal offenses today require that the state prove criminal intent or specific intent, could we abolish the insanity defense without logically undercutting the intent requirement in so many of our statutes defining crimes?

History tells us that the intent requirement was placed in these criminal statutes in another era. Our perception of the criminal mind and indeed of the human mind are quite different now.

Beyond that, candor requires that we acknowledge that we have consciously invented all sorts of fictions to get around the intent requirement. The malice aforethought necessary to support a conviction of murder need not have existed more than a millisecond prior to pulling the trigger. See, e.g., Carter v. State, 199 Miss. 871, 880, 25 So.2d 470, 473 (1946). While maintaining the fiction that we do not recognize diminished capacity, we have long ago incorporated into the law of homicide, in addition to murder and capital murder, offenses such as manslaughter and negligent homicide. The extent to which these offenses differ from murder, of course, turns on the state of mind at the time the criminal act was done.

I will make no attempt to perceive all of the ramifications of abolition of the insanity defense or to answer the questions posed above. It is sufficient unto this day to say that under the law and the facts, Robert Groseclose stands lawfully convicted of the crime of murder. Like it or not this case starkly illustrates the bankruptcy of the insanity defense. I have tried to articulate some of the reasons for this bankruptcy. It is not acceptable to say we have no better way. The question what we should do I submit must be asked — and answered someday soon.

DAN M. LEE, J., joins in this opinion.

      . Chief Justice Patterson has thoughtfully considered this matter in his concurring opinion in Lias v. State, 362 So.2d 198, 202-203 (Miss.1978). I commend to the reader the views expressed there.

      . For a valuable history of the insanity defense, see Harvey v. State, 207 So.2d 108, 110-115 (Miss.1968), together with the many sources and authorities cited therein. There are a few states which have legislatively overruled the M’Naghten Rule, principally by enacting language taken from the Model Penal Code. See Hill v. State, 339 So.2d 1382, 1389 (Miss.1976) (S. Robertson, J., specially concurring). In Mississippi the legislature has not enacted on this subject, although it certainly has the power to do so should it so choose. See Miss.Code Ann. §§ 99-13-1, et seq. (1972).

      . Judicially created rule of law, no matter how long they may have been in existence, are not without our power to change. Pruett v. City of Rosedale, 421 So.2d 1046 (Miss.1982); Tideway Oil Programs, Inc. v. Serio, 431 So.2d 454, 459-467 (Miss.1983); Keyes v. Guy Bailey Homes, Inc., 439 So.2d 670, 672 (Miss.1983). That within constitutional parameters the legislature has the power via enactment to alter what we do is never an acceptable excuse for our abdication.

      . For a comprehensive survey of the present status of the M’Naghten Rule in the several states, see Annotation, Modem Status of Test of Criminal Responsibility — State Cases, 9 A.L.R. 4th 526 (1981). According to the survey contained in the annotation, 18 states (including Mississippi) cling to the unsullied M’Naghten Rule. The other 32 have modified it in one way or another as have all of the United States Courts of Appeal. See Annotation, Modern Status of Test of Criminal Responsibility — Federal Cases, 56 A.L.R.Fed. 326 (1982).

      . See, e.g., Justice Stokes Robertson’s concurring opinion in Hill v. State, 339 So.2d 1382, 1386-1389 (Miss.1976), as well as the doubts expressed by Justice Rodgers in Harvey v. State, 207 So.2d 108, 110-115 (Miss.1968), by Justice Inzer in Jones v. State, 288 So.2d 833, 834-835 (Miss.1974) and by Justice Broom in Edmond v. State, 312 So.2d 702, 704 (Miss.1975).

      . I have discussed the subject of jury nullification in a different yet not altogether unrelated context in my dissenting opinion in Leatherwood v. State, 435 So.2d 645, 660-663 (Miss.1983).

      . The point in common parlance is that no jury is going to acquit a dangerous killer, no matter what. As Chief Justice Patterson put it in Lias v. State, supra,

        ... [I]t is very unlikely that a jury by its verdict would return a multiple killer to the streets even though criminal intention to commit the act was absent. 362 So.2d at 202.

      . The Hinckley case undergirds what I say here. First, the not guilty by reason of insanity verdict there returned was an aberration. Lawyers in the pits know that generally and across the country insanity defenses fail, no matter what the proof. See Stone, The Insanity Defense on Trial, 33 Harv.L.Sch.Bull. 15, 17 (1982). Experienced criminal defense attorneys employ the insanity defense sparingly, only (1) where the proof of insanity (by any standard) is overwhelming or (2) where no other defense is feasible (and where a guilty plea is infeasible).
      More telling in my view is the massively negative public reaction to the Hinckley verdict. The proof in Hinckley’s case (which I have cursorily reviewed) strongly supports the jury’s verdict. The public’s verdict, however, is that anyone who tries to assassinate the President ought be held criminally responsible, no matter what the law is and no matter how strong the evidence of insanity may be.

      . See Miss.Code Ann. § 47-7-3 (Supp.1982).

      . Thoughtful and by no means convergent views on this question may be found in Gold-stein and Katz, Abolish The “Insanity Defense” —Why Not? 72 Yale L.J. 853 (1963); Morris, Psychiatry and the Dangerous Criminal, 41 So.Cal.L.Rev. 514 (1968); Dershowitz, Abolishing The Insanity Defense: The Most Significant Feature Of the Administration’s Proposed Criminal Code — An Essay, 9 Crim.L.Bull. 434 (1973); Pasewark & Craig, Changing Insanity Plea Statutes, 11 U.C.L.A. — Alaska L.Rev. 173 (1982); Robitscher & Haynes, In Defense Of The Insanity Defense, 31 Emory L.J. 9 (1982); Stone, The Insanity Defense On Trial, 33 Harv.L.Sch.Bull. 15 (1982).

      . Compare our capital murder statute wherein emotional disturbance and other mental illnesses have been designated mitigating circumstances to be considered at sentencing. Miss. Code Ann. § 99-19-101(6)(b) and (f) (Supp.1982).


source: Caselaw Access Project

license: Public Domain

text:
    Wayne BAILEY and Otis Bailey v. Catherine Tramel WATSON, as Conservator of William Bryant Tramel.
    No. 53956.
    Supreme Court of Mississippi.
    Oct. 19, 1983.
    Rehearing Denied Nov. 16, 1983.
    Ben M. Caldwell, Caldwell & Easterling, Marks, for appellants.
    R.M.P. Short, Sardis, for appellee.
    Before BROOM, P.J., and DAN M. LEE and PRATHER, JJ.
   Appeal from Chancery Court, Quitman County; Harvey T. Ross, Chancellor.

AFFIRMED.


author:
ROY NOBLE LEE, Justice,
      HAWKINS, Justice,

text:
    Tommy Lee JACKSON v. STATE of Mississippi.
    No. 53905.
    Supreme Court of Mississippi.
    Oct. 19, 1983.
    Rehearing Denied Nov. 16, 1983.
    Don H. Evans, Jackson, for appellant.
    Bill Allain, Atty. Gen., by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, ROY NOBLE LEE and HAWKINS, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

Tommy Lee Jackson was indicted, tried and convicted in the Circuit Court of the First Judicial District of Hinds County, for armed robbery, and was sentenced to serve fifteen (15) years in custody of the Mississippi Department of Corrections. He has appealed here and assigns the following errors in the trial below:

(1) The court erred in denying appellant’s motion to suppress and in allowing a money clip to be introduced into evidence over objection of the appellant.
(2) The court erred in refusing to direct a verdict in favor of appellant at the close of the trial and in refusing to grant appellant’s request for a peremptory instruction.
(3) The court erred in denying appellant’s motion for a new trial on the grounds that the verdict of the jury was against the overwhelming weight of the evidence and evinced bias and prejudice on the part of the jury against appellant and showed that the jury had a willful disregard for their duty as jurors.
(4) The court erred in declining to grant a mistrial on three occasions during closing argument when the district attorney commented on appellant’s failure to testify.

I.

On March 19, 1981, Marvin W. Landis exited a bus at the Greyhound Bus Station in Jackson, Mississippi, and went to the men’s washroom. He noticed a black male at the rear, who was drying his hands. Shortly, he was grabbed around the chest from the back and fell to the floor, resulting in a fracture of his right arm (Landis was 80 years of age). He was severely beaten, and, the assailant removed Landis’ wallet and credit card packet from his pockets, then demanded. Landis’ money upon threat of killing him with a knife. Landis reached in his pants pocket and handed the man a money clip with $200.00. The robber fled, aid arrived for Landis, and the robbery was reported to the police. Landis described the black man as about thirty years old, 5 feet 10 inches tall, weighing 130-135 lbs. with a pronounced limp in his left leg, probably due to a deformity.

Mississippi State Highway Patrolman Lewis Younger was outside the bus station at the time of the robbery. He saw Tommy Lee Jackson run from the station and drive away in a white-over-blue Chevrolet automobile, probably a 1971 or 1972 model. Patrolman Younger also had seen Jackson earlier that day walking in front of the bus station occasionally looking inside. However, no arrest was made.

On March 26, 1981, during the early morning hours, a robbery, following the same pattern as that of March 19, 1981, again occurred in the men’s washroom of the Greyhound Bus Station. Officer J.C. Guy answered the call and obtained a description of the robber, viz, that he had a polio affliction, walked with a limp, wore a brown pullover monogram sweater and was driving a 1973 white-over-blue Chevrolet automobile. Tommy Lee Jackson answered the description, including wearing a brown pullover monogram sweater and driving a 1973 white and blue Chevrolet automobile, and he was arrested for the crime. Officer Guy searched the automobile during the early morning hours after the robbery. He found and removed a packet of wallet photos and a tire tool from it. There was considerable litter and debris in the vehicle, and he did not detect other articles. An inventory sheet was filled out, and the articles removed were noted.

Approximately nine hours later, Officer C.M. Crisco, accompanied by another officer, went to the storage lot where the white and blue Chevrolet was locked and stored in order to photograph it. The day was bright, the sun was shining, and the conditions were excellent for taking clear pictures.

Officer Crisco had participated in the investigation of the March 19 robbery and was familiar with the similarity of the mo-dus operandi in the two crimes. He also knew the description of the silver money clip which was taken from Marvin W. Lan-dis during the March 19 robbery and which had never been recovered. As he prepared to take the photographs, he looked inside the Chevrolet and saw a money clip sparkling in the sunlight on the floorboard behind. the driver’s seat. It fit the description of the missing Landis money clip and Officer Crisco reasoned that the object was valuable and vital evidence in the March 19 robbery. He returned to the police station, obtained the automobile keys, and went back to the vehicle and, without obtaining a search warrant, opened the automobile and removed the silver money clip. On the clip were the letters “P-O-P”. (The money clip had been made by Marvin W. Landis’ son in the 1940s and he had engraved the letters “P-O-P” on it.) Jackson was indicted for the March 19 robbery and his attorney filed a motion to suppress the evidence of the silver money clip, contending that it was obtained from the Jackson automobile on the morning of March 26, pursuant to an unlawful search without a warrant.

Jackson does not claim here that the officers lacked probable cause to arrest him on the morning of March 26, or to search his automobile initially. He argues that the second search approximately nine hours after his arrest, while in jail, violated his constitutional rights.

In addition to having probable cause for search of the automobile initially, the officers had the right to, and did, make an inventory of the contents. Later that morning, Officer Crisco, upon seeing an object of value in the rear of the Jackson automobile, had a right to continue that inventory and retrieve the object, even though he did not note the object on the inventory sheet. Florence v. State, 397 So.2d 1105 (Miss.1981), citing South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

In Henderson v. State, 402 So.2d 325 (Miss.1981), a partial search of an automobile was conducted upon probable cause. The automobile was removed to the police department and was impounded in a garage. The next morning, Henderson, the owner, was arrested. Two officers went to the garage and resumed search of the automobile, which had been made the night before. They found incriminating evidence on the second search and motion was made to suppress the evidence on the ground that the search was in violation of the defendant’s constitutional rights. This Court held that the search was lawful and that the lower court correctly overruled the motion to suppress the evidence, citing Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) and Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975), which stated:

“In Chambers v. Maroney we held that police officers with probable cause to search an automobile at the scene where it was stopped could constitutionally do so later at the station house without first obtaining a warrant. There, as here ‘[t]he probable-cause factor’ that developed at the scene ‘still obtained at the station house.’ 399 U.S., at 52, 90 S.Ct., at 1981. The Court of Criminal Appeals erroneously excluded the evidence seized from the search at the station house in light of the trial judge’s finding, undisturbed by the appellate court, that there was probable cause to search respondent’s car.” 423 U.S. at 68, 96 S.Ct. at 305, 46 L.Ed.2d at 211-12. [402 So.2d at 327].

In Michigan v. Thomas, 458 U.S. 259, 102 S.Ct. 3079, 73 L.Ed.2d 750 (1982), the defendant was convicted of possessing a concealed weapon. The conviction was reversed by the Michigan Court of Appeals, holding that the warrantless search of respondent’s automobile violated the Fourth Amendment. On certiorari to the United States Supreme Court, that Court reversed and said, in a per curiam opinion:

We reverse. In Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), we held that when police officers have probable cause to believe there is contraband inside an automobile that has been stopped on the road, the officers may conduct a warrantless search of the vehicle, even after it has been impounded and is in police custody. We firmly reiterated this holding in Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975). See also United States v. Ross, 456 U.S. 798, 807, n. 9 [102 S.Ct. 2157, 2163, n. 9] 72 L.Ed.2d 572 (1982). It is thus clear that the justification to conduct such a warrantless search does not vanish once the car has been immobilized; nor does it depend upon a reviewing court’s assessment of the likelihood in each particular case that the car would have been driven away, or that its contents would have been tampered with, during the period required for the police to obtain a warrant.... [458 U.S. at 261, 102 S.Ct. at 3081, 73 L.Ed.2d at 753].

Officer Crisco went to the Jackson automobile for the purpose of photographing same. He saw the silver money clip on the rear floorboard of the vehicle and, being familiar with the facts of the March 19 robbery and having a full description of the clip, reasonably believed it to be a valuable and vital piece of evidence in that crime. He had the authority and duty to take possession of that evidence as surely as if it had been contraband, and probable cause attached for a warrantless search from the March 19 robbery. Therefore, for the reasons stated, we hold that the lower court properly overruled the motion to suppress that evidence.

II.—III.

Jackson contends (2) that the court erred in declining to direct a verdict of not guilty and in refusing to grant a peremptory instruction of not guilty, and (3) in overruling motion for a new trial on the ground that the verdict of the jury was against the overwhelming weight of the evidence. We will consider those two assignments together.

The evidence for the State was sufficient to present a guilt question to the jury. Marvin W. Landis testified to the facts of the robbery and in the courtroom, he positively identified Jackson as his assailant and the robber. He identified the silver money clip with the letters “P-O-P” on it as that presented to him years ago by his son and as taken from him by Jackson on the night of March 19. As stated herein-before, the money clip was found in the Jackson automobile. Jackson explained to officers that he found the money clip in the Greyhound Bus Station. A person answering Jackson’s description was seen limping and running from the Greyhound Bus Station on the night of March 19, shortly after commission of the robbery, and getting into an automobile the same description as the Jackson automobile, which left the area.

In considering the question of whether or not a directed verdict or a peremptory instruction should have been granted for the appellant, the reviewing court must consider as true all the evidence introduced, which is favorable to the State, together with all reasonable inferences to be drawn therefrom, and, if they present an issue for determination by the jury, then the case must be submitted to the jury and will not be disturbed, if that evidence and those inferences support the guilty verdict. Gray v. State, 387 So.2d 101 (Miss.1980); Warn v. State, 349 So.2d 1055 (Miss.1977); Carroll v. State, 196 So.2d 878 (Miss.1967). We are of the opinion that the lower court did not err in refusing to direct a verdict of not guilty and in declining to grant the peremptory instruction, and that the evidence supports the verdict.

IV.

Jackson last contends that the court erred in declining to sustain his objection and grant a mistrial for remarks made on three occasions during closing argument when the district attorney commented upon his failure to testify.

The record reflects that Jackson’s attorney had him stand up, walk and limp before the jury, and took considerable time in displaying him to the jury. While the district attorney’s remarks may be considered as insinuating that Jackson did not testify, there was no direct comment upon his failure to testify, and we do not think that the remarks constituted reversible error. We also note that the court granted the following instruction at the request of Jackson:

Instruction No. 2
The Court instructs the Jury that the Jury must not consider the fact that the Defendant did not testify in this case as evidence against him nor does this fact arouse even a suspicion that he is guilty, but the State must prove him guilty beyond every reasonable doubt; and if the State has not done this, then the Jury must find the defendant “Not Guilty.”

This instruction probably brought to the attention of the jurors, and impressed them, the fact that Jackson did not testify, more than the argument of the district attorney.

There being no reversible errors in the trial below, the judgment of the lower court is affirmed.

AFFIRMED.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and BOWLING, PRATHER and ROBERTSON, JJ., concur.

HAWKINS and DAN M. LEE, JJ., specially concur.

HAWKINS, Justice,

specially concurring:

The defendant in this case is crippled, paralyzed in one arm and leg.

My concern with this case is the majority’s holding relative to comments by the prosecution on the failure of the defendant to testify.

I agree with the majority’s conclusion that the district attorney’s remarks could be “considered as insinuating that Jackson did not testify.”

I do not agree with the majority’s statement, “The record reflects that Jackson’s attorney had him stand up, walk and limp before the jury, and took considerable time in displaying him to the jury.”

The record is a follows:

BY MR. EVANS (defense counsel, during oral argument): ... I’d like to get Tommy Lee Jackson to stand up and come right over here where all of the jurors can see him.

Objection was made and overruled.

I — I’d like for him to just stand up here, to pull up your — his sleeve—

Objection was made and overruled.

BY MR. EVANS: You can go sit down now. Now, you just saw this Defendant right here. [Record 154-155]

There is no showing how long the defendant was before the jury, or precisely what was shown.

I do question the propriety of exhibiting the defendant to the jury in oral argument, unless previously during the trial he had been presented to some witness, or some record made of his physical characteristics.

The majority seems to conclude that (1) because there was no direct, open statement to the jury that the defendant had not testified, and (2) because of instruction granted the defense on the defendant’s right not to testify, that there was no reversible error.

I would have dissented to both these propositions, except the recent case of Carl E. Lee and Travis Howard Lee v. State, 435 So.2d 674 (Miss.1983), removes what little problem I formerly had when prosecuting attorneys alluded to a defendant’s failure to testify.

The defendant in this case requested and was granted the following instruction:

The Court instructs the Jury that the Jury must not consider the fact that the Defendant did not testify in this case as evidence against him nor does this fact arouse even a suspicion that he is guilty, but the State must prove him guilty beyond every reasonable doubt, and if the State has not done this, then the Jury must find the defendant “Not Guilty.”

As I said in Lee and Lee v. State, supra, it is a mystery to me that defense counsel would ask for such an instruction, yet when the Court does give such an instruction, any subsequent statement or insinuation by the state about the defendant not testifying makes the comment more serious, not less serious. After the Court has specifically told the jury that the defendant’s failure to testify does not “arouse even a suspicion that he is guilty,” to permit the state to make some insinuation about his failure to testify aggravates the precaution the Court has attempted to instill in the jury.

Having had my say in Lee and Lee, however, and eight of the Justices viewing the matter otherwise, I see no necessity in repeating the dissent. With misgivings over what I must in deference conclude is a grave erosion of rights long vouch-safed to defendants in criminal trials, I concur.

DAN M. LEE, J., joins this opinion.

      . In oral argument the state conceded the remarks would have been improper, but argued they were invited by defense counsel.


text:
    Lessie R. JAMES v. JASPER COUNTY BOARD OF SUPERVISORS.
    No. 54008.
    Supreme Court of Mississippi.
    Nov. 9, 1983.
    Tom Tullos, Bay Springs, for appellant.
    John M. Sims, Heidelberg, for appellee.
    Before WALKER, P.J., and BOWLING and PRATHER, JJ.
   Appeal from Circuit Court, Jasper County; L.D. Pittman, Judge.

AFFIRMED.


text:
    Dan Terry GRIFFIN and Larry Hammett v. STATE of Mississippi.
    No. 53958.
    Supreme Court of Mississippi.
    Nov. 9, 1983.
    Thomas J. Lowe, Jr., Jackson, Tim D. Blalock, L.H. Rosenthal, Natchez, for appellants.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Bill Allain, Atty. Gen. by Catherine Walker Underwood, Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and HAWKINS and ROBERTSON, JJ.
   Appeal from Circuit Court, Adams County; Edwin E. Benoist, Jr., Judge.

AFFIRMED.


text:
    John C. UNDERWOOD, Jr., Substituted Trustee, and Kimbrough Investment Company v. L.M. WALKER, Jr. and Belva D. Walker.
    No. 53897.
    Supreme Court of Mississippi.
    Nov. 9, 1983.
    Charles W. Witt, Michael Knapp, John B. Clark, Daniel, Coker, Horton & Bell, Jackson, for appellants.
    Jerry 0. Terry, Greaves, Terry & Sheely, Gulfport, for appellees.
    Before WALKER, P.J., and ROY NOBLE LEE and HAWKINS, JJ.
   Appeal from Chancery Court, Harrison County; William L. Stewart, Chancellor.

AFFIRMED.


author: DAN M. LEE, Justice,

text:
    Willie B. WILLIAMS v. STATE of Mississippi.
    No. 53946.
    Supreme Court of Mississippi.
    Nov. 9, 1983.

      John H. Anderson, Hattiesburg, for appellant.
    Bill Allain, Atty. Gen. by Bill Patterson and Anita Mathews Stamps, Sp. Asst. At-tys. Gen., Jackson, for appellee.
    Before BROOM, P.J., and DAN M. LEE and PRATHER, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Jefferson Davis County wherein the appellant, Willie B. Williams, was found guilty of manslaughter, a violation of Mississippi Code Annotated § 97-3-47 (1972).

On December 1,1980, Teresa Coulter and her friend, Kathy Pace, were returning to their homes in Prentiss from a day of Christmas shopping in Hattiesburg. Ahead of them, in another car, were Teresa’s parents who had accompanied them shopping. Teresa testified that about 8:30 p.m. they were traveling on Highway 42 and had just left a four-way stop at the intersection of Highway 35 when a car driven by Willie B. Williams approached from the other direction and crossed over into their lane. The cars collided head-on and Kathy Pace was killed. Teresa could not estimate Williams’ speed, but did testify that he was “traveling fast.” She first testified that there were no other cars on the road at the time of the accident, but she later admitted that she hadn’t really noticed.

Teresa’s father, Wiley Coulter, testified that Williams’ car passed him at a high rate of speed and was at that time veering to the center of the road. Watching in his rearview mirror Wiley Coulter saw his daughter’s headlights go out and knew there had been an accident. He and his wife turned around and went back a few hundred yards to where the cars had collided. Coulter testified that there were no other vehicles on the road at the time of the accident.

Officer Pat Cronin of the Mississippi Highway Patrol testified that he was called to the scene of the accident and there spoke with Williams. Officer Cronin testified that at that time he smelled alcohol on Williams’ breath and that Williams’ speech was slurred. Officer Cronin took Williams to the Jefferson Davis County Sheriff’s Department where Officer Ronald Jones administered a photoelectric intoximeter test which revealed that Williams’ blood alcohol content was .177. Officer Jones also testified that Williams’ speech was slurred and that he had alcohol on his breath.

Willie B. Williams took the stand in his own defense. He testified that as he approached the intersection of Highways 35 and 42, there was an 18-wheel truck moving very slowly, or not at all, ahead of him in his lane. Williams said he hit his brakes and that his wheels froze, causing him to skid into the other lane and the path of Teresa Coulter’s oncoming car. Williams further testified that he had been deer hunting and had split three or four ounces of rum with someone whose name he could not recall approximately one hour to an hour and one-half before the accident. He denied driving over 50 mph.

Linda Buckley, a waitress in a restaurant on the corner of Highways 35 and 42, testified that she was at work on the night of the accident. She testified that she heard a noise and looked out the window two minutes later and saw a big truck driving by. She could not describe the truck other than to say it was moving slowly. Williams’ wife, Margaret, testified that he called her to the scene of the accident and when she arrived he was not drunk.

The jury returned a verdict of guilty and Williams was sentenced to fifteen (15) years in custody of the Mississippi Department of Corrections.

Williams first assigned as error the admission into evidence of a hospital record prepared by Dr. H.C. Ethridge in lieu of his personal testimony thereby denying Williams his right to confront and cross-examine all the witnesses offered against him. Prior to trial the State made an oral motion to introduce the hospital records of Kathy Pace. The attorney for the State argued he had attempted to get the physician who had examined Kathy Pace to testify, but that he was out of the state, perhaps in Texas, and that he had no more precise information concerning his whereabouts than that. The State also argued that the attending nurse was unable to be present because she was in the hospital at the time of the trial. Williams’ attorney objected to the admission of the records as violating Williams’ right to confrontation; however, the judge admitted the records.

In its brief, the State admits that the admission of the hospital records was error. This is clearly the law in Mississippi, for this Court has held on a number of occasions that the maker of a report or record must be present for cross-examination if that report or record is to be introduced as evidence. White v. State, 306 So.2d 299 (Miss.1975); Gilleylen v. State, 255 So.2d 661 (Miss.1971); Flowers v. State, 243 So.2d 564 (Miss.1971). In Flowers, this Court said:

On the second issue, however, we disagree with the contention of the State that hospital records may be introduced in a criminal case. It is true that hospital records have been accepted as primary evidence in certain civil cases. It is not true, however, that statements made in hospital records by persons not summoned as witnesses may be introduced as primary evidence in criminal cases. Section 26, Mississippi Constitution (1890), provides, among other things, that:
In all criminal prosecutions the accused shall have a right * * * to be contronted by the witnesses against him, ⅜ * *
This right of confrontation and the right to cross-examine witnesses lie at the heart of due process. We specifically held in the case of Spears v. State, 241 So.2d 148 (Miss.1970), that hospital records as primary evidence were inadmissible. See also the cases set out by the United States Supreme Court in Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). [243 So.2d at 565],

The Flowers Court went on to hold that under the facts of that case the introduction of the hospital record was not reversible error as the information obtained in those reports had been thoroughly established by other witnesses.

The instant case is analogous to the Flowers decision in that the admission of the records was error, but the facts contained in those records had been proved through other testimony and evidence, and, therefore, the error does not mandate reversal. Although Williams argues that the only proof as to Kathy Pace’s cause of death was contained in the hospital records, there was ample other evidence that the collision was the cause of her death. At the trial, Larry B. Terrell, an ambulance driver and emergency medical technician, testified that when he arrived at the scene of the accident, Kathy Pace had no vital signs. ' Teresa Coulter testified that before the accident, Kathy Pace was alive. Officer Pat Cronin of the Highway Patrol identified Kathy Pace as “the girl that was killed in the automobile accident.” Therefore, there was evidence beyond the hospital records to establish that Kathy Pace’s death was the result of the automobile collision with Willie B. Williams’ car.

Williams’ second assignment of error is that the State failed to prove culpable negligence. The jury was faced with two opposing theories regarding the cause of the accident. The State’s theory is that Williams was drunk and lost control of the vehicle. Williams argues that he was not drunk, but was trying to avoid a truck in his lane. The evidence overwhelmingly supports the State’s theory. Officers Cronin and Jones both testified that Williams had alcohol on his breath and his speech was slurred. Williams’ blood alcohol content was .177, a significant amount of alcohol. Both Teresa Coulter and her father Wiley Coulter denied there was any other traffic on the road at the time of the accident. Neither of them saw the truck that Williams claimed to be trying to avoid. In fact, the only evidence supporting Williams’ story about the truck was the testimony of Linda Buckley. Miss Buckley’s testimony provides little corroboration, as she admitted that she did not look out the restaurant window until a full two or three minutes after hearing the accident. Given that time lapse, there is little reason to believe that the truck she saw was the one Williams claimed to be trying to avoid.

This Court has held that when the evidence is conflicting, the jury will be the sole judge of the credibility of the witnesses and the weight and worth of their testimony. Gathright v. State, 380 So.2d 1276 (Miss.1980). Because the jury was free to accept or reject any part- of the witnesses’ stories, we must conclude that they simply believed the State’s witnesses more than they believed Willie B. Williams. Finding no additional error during the trial, we affirm.

AFFIRMED.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, PRATHER and ROBERTSON, JJ., concur.


author: BOWLING, Justice,

text:
    Willie Madison MADLOCK v. STATE of Mississippi.
    No. 53978.
    Supreme Court of Mississippi.
    Nov. 9, 1983.
    Cliff Finch, Stephen L. Henning, Cliff Finch & Associates, Batesville, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.

      Before WALKER, P.J., and BOWLING and PRATHER, JJ.
   BOWLING, Justice,

for the Court:

Appellant was indicted and tried in the Circuit Court of the First Judicial District of Panola County for the crime of murder. The jury returned a verdict of manslaughter and the trial judge sentenced appellant to serve a term of nine years in the custody of the Mississippi Department of Corrections.

On appeal appellant alleges a number of assignments of error. There is need only to discuss one of these assignments as it requires a reversal of the case. There is no merit to any of the other assignments.

Appellant, Willie Madison Madlock, was indicted for shooting and killing one Willie Petty. Appellant was at the time of the incident married to Petty’s sister and they had three children. Also at the time of Petty’s death, appellant and his wife were separated. Petty had as a common-law wife Rosemary Petty. They, too, were separated at the time Petty met his unfortunate death.

The incidents surrounding the night of the occurrence are disputed in some detail, but not to any great extent. As is so familiar in these type of matters, the shooting occurred on Saturday night (or 2 a.m. on Sunday, September 14, 1980). During the middle portion of Saturday night, appellant was in contact with some friends at his home. Appellant testified that on one occasion, Willie Petty, the deceased, and Rosemary Petty came to appellant’s home and at that time Petty threatened - appellant’s life. Appellant testified that later Petty came back to Madloek’s residence and rang the doorbell, but he did not answer it. From the evidence, it seems that during all of the separation of the parties, appellant and Rosemary Petty had been seen together on occasions. Appellant testified that around midnight he became concerned about Petty’s threats and went to the police department and signed an affidavit alleging that Petty had made threats against his life. We disgress here to point out that the city judge verified this by testifying that around midnight, he was called by the police department dispatcher and he went to the station and found appellant there requesting that something be done because of threats made as shown by the affidavit he had signed. It developed the threats took place outside the city limits and the city judge testified that he therefore would have to wait until the next morning to turn the matter over to a justice of the peace.

After attempting to bring charges against Petty for threats on his life, appellant returned to his home. Between 1 and 2 a.m., a group, including Rosemary Petty, came to his house and this culminated in all going to an all-night service station where food was served to get something to eat. It developed that Willie Petty was near the scene and as appellant stopped his car in front of the place of business, Petty ran his car into the right front fender of appellant’s car. Appellant then ran into the service station and requested that the police be called. The participant who appeared to show the most composure, Rosemary Petty, stayed in Madlock’s ear with the windows raised and the doors locked. When Madlock returned to his car, he was accosted by Petty and according to all of the witnesses, Petty chased Madlock around the car at least three times.,, The acquaintances of both of them deterred Petty but in some way he broke loose or was released. He again chased appellant around the car. At this point, there appears the biggest inconsistency in the testimony. Appellant testified that because of Petty’s threats earlier that night, he felt sure that Petty was armed and that when Petty put his hand in his pocket, appellant fired one shot from a .22 caliber revolver which struck Petty in the abdomen. He later died from this one bullet wound. Some witnesses testified that the shot was fired while both of Petty’s hand were visible. (Rosemary wisely remained in the locked car.)

The assignment of error requiring a reversal of the cause is the allegation that the assistant district attorney in his final argument to the jury, made statements prejudicial to appellant and unwarranted statements that require a reversal. For clarity, we quote this portion of the prosecutor’s testimony as it appears in the record:

I don’t think there’s any question. Now, let’s get to the threats, these so-called threats. Who, other than this Defendant, has told you that Nipper threatened Mad-lock? Who? Madlock. Nipper can’t talk. He’s six feet under. Who was the only other person who was a supposed eye witness to these threats? Guess who. The woman that this thing is all about. Rosemary Petty. Now, where is Rosemary Petty? Don’t you know, ladies and gentlemen of the jury, that if Rosemary Petty would come forth and sit on that witness chair and tell you that Nipper had threatened Madlock, Governor Finch would have had her under 15 subpoenas.
COUNSEL FOR THE DEFENDANT (Mr. Finch): Now, your Honor, we know that the burden of proof is on him and that it is his responsibility to call witnesses. Your Honor has already instructed that he didn’t have to call one witness. And Mr. Williams knows what Rosemary Petty was said all along, and it was his burden of his proof in this case to bring her and everybody else. Not one thing was Willie Madlock, and we object to any argument and inference that it was his responsibility, that is my responsibility to represent him, to bring anybody, including the Defendant.
ASSISTANT DISTRICT ATTORNEY (Mr. Williams): My burden, Your Honor, is to prove the elements of the crime, not to prove threats.
THE COURT: I overrule the objection. I don’t think the argument is proper. I think the Court understands the rule on , the availability of witnesses and (unintelligible word) to be argued.
ASSISTANT DISTRICT ATTORNEY (Mr. Williams): I don’t blame him, I’d squirm too.
COUNSEL FOR THE DEFENDANT (Mr. Finch): Your Honor, we object to that form of argument and note an exception to those forms of arguments.

As we already have seen, the primary person in the scenario, other than appellant and the deceased, was Rosemary Petty. Appellant had testified that she was with Petty when they came to Madlock’s house and threatened to kill him. It is undisputed that whether or not this did in fact occur, appellant went to the police station and complained of his life being threatened by Petty and signed an affidavit, as hereinbe-fore stated. The city judge came at midnight to the police station to assist in what could have been a potentially dangerous situation. He talked with appellant and explained to him why he could not handle the case since, the threats occurred outside the city limits. We may therefore infer that appellant was in a satisfactory physical condition at around midnight when he talked with the police officer and the city judge.

It is clear that the prosecuting attorney’s argument regarding the failure of appellant’s attorney to offer Rosemary Petty as a witness to confirm the threats of the deceased was error. This erroneous and prejudicial argument resulted in an objection by the appellant’s attorney. The trial court overruled the objection. The prosecuting attorney then showed the tone of his entire argument by making the above state-' ment, “I don’t blame him, I would squirm too.”

This Court in a number of cases has cautioned prosecuting attorneys not to get carried away with their exuberance and commit errors prejudicial to the accused. We hasten to say that the vast majority of prosecuting attorneys adhere to this duty, but unfortunately there still are those who try to go an extra mile. The citizens on the jury naturally look up to their elected officials, particularly those in law enforcement. Vigorous prosecution of criminals is commendable, but this Court is committed to the principle that those accused of crime are tried fairly. There was no excuse whatever for the prosecuting attorney in this case to make the above quoted statements regarding the failure of appellant to place on the witness stand the person who would be presumed to know about the threats made by the deceased. Howell v. State, 411 So.2d 772 (Miss.1982); Clemons v. State, 320 So.2d 368 (Miss.1975); and Craft v. State, 271 So.2d 735 (Miss.1973).

Rosemary Petty was equally accessible to be subpoenaed as a witness by both the state and the appellant. In fact, as she was the deceased’s common law wife and bore his name this would tend to make her more accessible to the prosecution. Regardless of this, there is no proof in the record as to her accessibility or inaccessibility. We have held that particularly in criminal cases, the failure to call a witness equally accessible to both the defendant and the state is not a proper subject for comment by either party. Smith v. State, 187 Miss. 96, 192 So. 436 (Miss.1939); Wells v. State, 162 Miss. 617, 139 So. 859 (1932); and Archer v. State, 140 Miss. 597, 105 So. 747 (1925).

Because of the prejudicial and erroneously vigorous statements of the prosecuting attorney in his final arguments and the lower court’s overruling appellant’s objection thereto, we are forced to reverse the cause and remand for another trial.

REVERSED AND REMANDED.

PATTERSON, C.J., WALKER and BROOM, P. JJ., and ROY NOBLE LEE, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.


text:
    Sanford MASON v. STATE of Mississippi.
    No. 54485.
    Supreme Court of Mississippi.
    Nov. 9, 1983.

      William Dean Stark, John Paul Moore, Starkville, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and BOWLING and ROBERTSON, JJ.
   BOWLING, Justice,

for the Court:

Appellant was indicted, tried and convicted in the Circuit Court of Oktibbeha County of the crime of rape. The jury returned a verdict of guilty and by its verdict found that he should serve a life sentence with Department of Corrections. Appellant’s indictment also included charges under Mississippi Code Annotated, Section 99-19-81 (Supp.1983), alleging two prior felony convictions as a result of which he received at least a term of one year for each. Upon the jury’s conviction in the present case, the circuit court sentenced appellant, under the provisions of said section, to serve a life term without parole.

On appeal, appellant presents only one assignment of error, to-wit:

I. DID THE COURT ERR IN DENYING THE DEFENDANT’S MOTION FOR JNOV AND/OR A NEW TRIAL WHERE THE STATE EXERCISED ITS PEREMPTORY CHALLENGES TO ALLEGEDLY SYSTEMATICALLY EXCLUDE ALL BLACKS FROM THE JURY IN VIOLATION OF THE DEFENDANT’S CONSTITUTIONAL RIGHTS?

At the outset, we note that the alleged error is not before the Court properly. There is nothing in the record other than the statement in appellant’s motion for JNOV and/or new trial that the jury in this case was all white. Nowhere in the record are the names and race of the persons composing the jury set out. Neither does the record show the names and race of those peremptorily challenged from the special venire panel. There is nothing in the record to show any reason on the part of the state or the appellant for peremptorily challenging any juror.

We have on many occasions held that we must decide each case by the facts shown in the record, not assertions in the brief, however sincere counsel may be in those assertions. Facts asserted to exist must and ought to be definitely proved and placed before us by a record, certified by law; otherwise, we cannot know them. Phillips v. State, 421 So.2d 476 (Miss.1982); Branch v. State, 347 So.2d 957 (Miss.1977); Robinson v. State, 345 So.2d 1044 (Miss.1977); Shelton v. Kindred, 279 So.2d 642 (Miss.1973); and Alexander v. Hancock, 174 Miss. 482, 164 So. 772 (1935).

Furthermore, nowhere in the record other than the allegations of the post-trial motion is there shown any objection to the state’s use of its peremptory challenges.

Assuming, but not agreeing, that the assignment of error as shown in the record only in the motion for JNOV/or new trial is sufficient for us to consider the assignment of error submitted to this Court, we find that the assignment is wholly without merit for the following reasons: The leading ease with regard to the constitutionality of using peremptory challenges to exclude from the jury people belonging to a particular race or class is Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). There the defendant, a black man, was convicted by an all-white jury. He contended his constitutional rights were violated by the state’s use of peremptory challenges. The United States Supreme Court in rejecting this contention said:

The presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the Court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes.

This Court in a number of cases has followed the dictates in Swain, supra. See Irving v. State, 228 So.2d 266 (Miss.1969); Coleman v. State, 378 So.2d 640 (Miss.1979); Gilliard v. State, 428 So.2d 576 (Miss.1983).

There is no need of prolonging this opinion by discussing all of the applicable cases in detail. They do not support appellant’s position and we, therefore, are required to affirm the verdict of the jury and the sentence of the circuit court.

AFFIRMED.

PATTERSON, C.J., WALKER and BROOM, P. JJ., and ROY NOBLE LEE, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.