BEFORE ROY NOBLE LEE, ROBERTSON AND SULLIVAN
SULLIVAN, JUSTICE, FOR THE COURT:
John T. Henderson was convicted of possession of cocaine in violation of Mississippi Code Annotated 41-29-139 (1972), in the Circuit Court of the First Judicial District of Harrison County. He was sentenced to a term of three years in the Department of Corrections and fined Twenty Thousand Dollars. The fine was suspended conditioned upon Henderson serving the entire three year term.
Henderson appealed and assigned as error:
1. That the trial court erroneously refused jury instructions on the burden of proof in the circumstantial evidence case; and
2. That the verdict was against the overwhelming weight of the evidence.
We reverse and remand for a new trial because the case against Henderson was based on wholly circumstantial evidence and therefore the requested instruction should have been granted.
On the evening of November 27, 1981, Mrs. Lynn Wakefield arrived at her home in Gulfport and there found her son, Roger Garon, and his girl friend, Wendy Jackson, in Garon's upstairs bedroom. Shortly before 9:00 p.m., two young men came to the house to see Garon. One of these men was Henderson. When she found her son's door shut, Mrs. Wakefield called the Gulfport police. One of the young men came downstairs before the police arrived. Mrs. Wakefield never saw Henderson leave her house that
Officer Steve Gorenflo was one of the policemen responding to Mrs. Wakefield's call for assistance. She gave him permission to enter the house and accompanied him to the second floor, but did not enter her son's room.
When Officer Gorenflo entered the room, Garon and Jackson were seated at the left side of the room and Henderson was standing next to a chest of drawers on the right side of the room with his back to the officer.
When Henderson turned to face Gorenflo, the officer saw four hypodermic syringes and glasses of water on top of the chest. Henderson made two efforts to push past Gorenflo; failing in this, Henderson dove headlong out the second floor window and thus exited the room. Gorenflo seized the four syringes, three of which contained cocaine, and also a spoon containing cocaine.
At the conclusion of the state's case, Henderson moved for a directed verdict on the ground that the state had failed to prove its case. When the motion was over-ruled, the appellant proceeded to put on his proof. Garon, testifying for Henderson, substantially contradicted the testimony of his mother and of Officer Gorenflo. According to Garon, Henderson did not do drugs, and had only been in the room briefly when the police arrived. Garon also testified that Henderson did not know there was cocaine in the room, and that the cocaine was not visible on the chest of drawers when Officer Gorenflo entered the room. Garon did not offer any explanation for Henderson's method of departure.
When Henderson proceeded to put on his proof, he waived his assignment of error that the trial court should not have overruled his motion for a directed verdict. This is in keeping with well-settled Mississippi law. Field v. State, 293 So. 2d 430, 432 (Miss. 1974).
After all the evidence was in the appellant offered two jury instructions which were ...