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JERRY LYNN YOUNG v. STATE OF MISSISSIPPI

MAY 09, 1984

JERRY LYNN YOUNG
v.
STATE OF MISSISSIPPI



BEFORE PATTERSON, PRATHER AND ROBERTSON

PRATHER, JUSTICE, FOR THE COURT

On petition for rehearing the former opinion is withdrawn and this opinion is substituted.

Jerry Lynn Young was found guilty of one count of attempted armed robbery and two counts of aggravated assault and sentenced to a total of fifty (50) years in the Mississippi Department of Corrections. From this conviction in the Circuit Court of Pontotoc County, Young appeals, assigning numerous errors. We reverse on the failure to instruct the jury on the law of the defendant's alibi defense as requested, as a denial of the defendant's right of due process of law under the Mississippi Constitution.

 I.

 Since this case is being reversed for retrial, we only address two assignments of error:

 (1) That it was reversible error for the trial court to refuse an instruction advising the jury as to the standard to apply in weighing the alibi evidence, and

 (2) That it was reversible error to permit the state to use self-serving hearsay to bolster the victim's testimony.

 Likewise, we elect not to comment in detail on the facts of the first trial. It is sufficient to state that Jerry Lynn Young was indicted of the attempted robbery of the home of Wendell Luther in Pontotoc on February 22, 1980. *fn1 Additionally, Young was indicted for the alleged aggravated assault of Luther and Luther's sixteen year old daughter, Patsy, growing out of the same occurrence. Young's total defense was alibi, and he offered himself and other witnesses in support of his assertion that he was not present at the Luther home at the time of the crime, but was at another location.

 II.

 At the trial's conclusion, the defendant submitted seventeen written instructions for the judge's approval. The trial judge directed the defense counsel to select six from the total number in accord with Mississippi Uniform Criminal Rules of Circuit Court Practice, No. 5.03. Time was permitted for this consideration, and defense counsel selected the following instructions covering the stated subject matter:

 (1) D-1 - Weight to be given to state's witness receiving alleged immunity (Refused by the Court).

 (2) D-2 - Weight to be given testimony of an alleged accomplice (Granted by the court).

 (3) D-8 - Definition of reasonable doubt, moral certainty, and presumption of innocence (Refused by the court as duplicate to court's instruction).

 (4) D-10 - State's burden to prove guilt beyond reasonable doubt (Refused by the court as duplicate to court's instruction).

 (5) D-13 - Impeachment of witness by prior inconsistent statement to be considered as to weight and believability and not as to guilt or innocence (Granted by the court).

 (6) D-16 - Competency of defendant to testify and weight to be given to his testimony (Refused by the court for reason that this was not a circumstantial evidence case).

 A seventh instruction, a peremptory instruction to the jury to find the defendant not guilty, was already ruled upon and denied. No appeal is taken regarding the refusal of

 any of the four above instructions. After the trial court's action on the first six submitted ...


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