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J. B. RUSHING v. STATE OF MISSISSIPPI

DECEMBER 05, 1984

J. B. RUSHING
v.
STATE OF MISSISSIPPI



BEFORE WALKER, BOWLING AND PRATHER

PRATHER, JUSTICE, FOR THE COURT:

This is an appeal from a criminal conviction in the Circuit Court of Coahoma County, by J. B. Rushing, appellant, who was found guilty of burglary of a dwelling. The court sentenced Rushing, as an habitual offender, to a term of ten years in the custody of the Mississippi Department of Corrections.

Rushing appeals, assigning as error:

 (1) That the State failed to present sufficient evidence to prove guilt beyond a reasonable doubt;

 (2) That the trial court erred in sentencing the appellant as an habitual offender under Miss. Code Ann. 99-19-81.

 I.

 On March 26, 1983, Samuel Brinson's home in Clarksdale, MS was burglarized, and a color television was taken. On April 22, 1983, while executing a search warrant at the home of L. D. Epps, Officer Robert Birdsong of the Clarksdale Police Department, noticed a television fitting the description of the one reported stolen from the Brinson home. The serial number on the television matched that of the stolen television.

 In the Epps' household was living their grandson, Herman Jackson. Jackson testified that he had purchased the television from the appellant two or three months before the trial. Jackson paid the appellant $75.00 for the television and picked it up from the apartment of Shirley Shields.

 According to Shirley Shields, appellant Rushing brought a television to her apartment sometime between two and three

 months before the trial. Mrs. Shields testified that she kept the television for about a week before the appellant and a man, known only to her as" Slim ", came and got it.

 At the conclusion of the State's proof, the defense counsel made a motion for a directed verdict asserting as ground that the state failed to meet its burden of proof. Counsel stated that the state failed to prove that possession of stolen property by the accused was shown to be personal, recent, unexplained and exclusive. After overruling of said motion by the court, the defendant presented no evidence on his behalf.

 II.

 The initial question is whether the evidence was sufficient to support a verdict of guilty beyond a reasonable doubt? No evidence was presented at trial directly linking the appellant to the breaking and entering of Mr. Brinson's home on March 26, 1983. The testimony of witnesses for the State established, however, that appellant Rushing was in possession of Brinson's television approximately one month after the burglary.

 Under Mississippi law, possession of recently stolen property is a circumstance which may be considered by the jury and from which, in the absence of a reasonable explanation, the jury may infer guilt. Harper v. State, 355 So.2d 314 (Miss. 1978); Engbrecht v. State, 268 So.2d 507 (Miss. 1972); Minor v. State, 234 Miss. 140, 106 So.2d 41 (1958). In order to give rise to an inference of guilt from the fact of possession, the State has the burden of proving possession by the accused of ...


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