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DANIEL CUMMINGS, JR. v. STATE OF MISSISSIPPI

JANUARY 09, 1985

DANIEL CUMMINGS, JR.
v.
STATE OF MISSISSIPPI



EN BANC

PATTERSON, CHIEF JUSTICE, FOR THE COURT:

Daniel Cummings, Jr., was convicted of burglary and

sentenced as an habitual criminal [Mississippi Code Annotated, 99-19-83 (Supp. 1982)] to life imprisonment by the Circuit Court of Leflore County.

 From his conviction and sentence he appeals, assigning as error that the trial court (1) overruled appellant's demurrer to the indictment; (2) sentenced the appellant to life imprisonment without benefit of probation or parole; (3) refused to allow the jury to hear evidence proffered by him on the issue of intoxication to overcome the required intent to commit burglary and refused defendant's instructions D-5 and D-5A; (4) permitted the state to question Officer Barr in rebuttal relating to oral statements allegedly made by the defendant to the officer following arrest; (5) failed to grant a mistrial because the state failed to prove by extrinsic evidence the prior criminal convictions of the appellant; and (6) granted State's Instructions S-1 and S-2 to the effect the jury could find the defendant guilty if he acted alone or in concert with others.

 At about 11:40 p.m. on the evening of May 4, 1982, a citizen stopped a policeman in the City of Greenwood and told him three people were burglarizing the Stone Street Package Store in that city. Upon investigation the officer found a broken window in the liquor store and someone inside the building. While awaiting assistance from other officers, the officer heard noises emanating from some adjacent shrubbery or bushes. The officer did not leave his position to investigate the noises but merely turned his light to the area while awaiting the arrival of" back up units. "

 A second patrol car arrived and the individual within the building was advised to stay on the floor where he could be observed pending the arrival of the store owner to unlock the building.

 Upon entry of the police into the store they saw Cummings, the appellant, lying on the floor and observed that several shelves had been emptied of liquor. An investigation revealed that the plate glass window in the front of the store was broken above a metal screen and two bricks were found inside the building. Undoubtedly entry into the store was via the broken area as the testimony reveals the door was locked prior to the entry and remained locked until the owner was called to open the door for the officers' entry.

 Further investivation disclosed a bag containing several bottles of liquor in the shrubbery several feet from the building. From the record it is apparent there were others involved in the burglary who were not apprehended, leaving

 only Cummings who was indicted and tried as stated.

 Cummings first contends for reversal that the indictment does not charge him with having actually served a term of one year for each of his two prior felony convictions and that the indictment did not give him notice that he was being indicted as an habitual criminal. We first observe that the indictment is sufficient under Dalgo v. State, 435 So. 2d 628 (Miss. 1983), on petition for rehearing. We there stated,

 The indictment sets forth the substantive crime and the habitual criminal requirements in clear and unambiguous language. [See Appendix] The habitual criminal portion of the indictment charges Dalgo with four previous convictions; that he served at least one year of each conviction in the Mississippi State Penitentiary at Parchman, Mississippi; and that one such conviction, assault with intent to rape, involved a crime of violence. The indictment sets forth with certainty that the habitual criminal statute violated is Mississippi Code Annotated 99-19-83 (Supp. 1981), which follows:

 Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation. [Emphasis added)

 435 So. 2d at 629.

 We are of the opinion the first assignment of error is without merit inasmuch as the indictment in the present case is nearly verbatim with that in Dalgo.

 It is next urged there was error in sentencing the appellant as an habitual offender because the state's evidence did not establish beyond a reasonable doubt that Cummings had in fact served one year or more in the custody of the

 State Department of Corrections on the two prior felony convictions. We first observe that the defendant made no objection to the introduction of the certificates of the felonies from the Director of Records at Parchman. Moreover, the defense made no cross-examination of these state's witnesses and the trial court granted the appellant time to consider the evidence presented, thereby affording defendant ample opportunity to make argument or to produce any witnesses he might have had to contradict the testimony of the state. However, no such witnesses were produced nor was any argument made to the trial judge pointing out any mistakes in the court's ruling. We therefore think the contemporaneous objection rule applies and that this point cannot be raised for the first time on appeal. Tucker v. State, 403 So. 2d 1271 (Miss. 1981), Tubbs v. State, 402 So. 2d 830 (Miss. 1981). It follows that this assignment is without merit.

 The primary argument for reversal is that appellant was refused instructions D-5 and D-5A. In this contention he frankly acknowledges the two instructions essentially follow the prior rule stated in Edwards v. State, 178 Miss. 696, 174 So. 57 (1937). Edwards and its kind hold that if a defendant was in such a state of intoxication due to the use of alcohol, drugs, or a combination of both, to the extent of being incapable of forming the necessary intent to commit the crime charged and incapable of knowing right from wrong that a jury must return a verdict of not guilty. Unfortunate to this argument and leaving it without merit is that Edwards, supra, and its kindred cases were explicitly overruled in McDaniel v. State, 356 So. 2d 1151 (Miss. 1978). The author of this opinion joined Justice Stokes Robertson and Justice L. A. Smith in their dissents because it was my opinion that the cases overruled expressed better reasoning than the majority opinion overruling them. However, I must acknowledge the obvious, i.e., the dissenting justices did not prevail in McDaniel. Therefore, the majority opinion expressed through Presiding Justice Walker and Justice Sugg became the controlling case law of our state. It is presently well established as precedent for other cases. In Harris v. State, 386 So. 2d 393 (Miss. 1980), it was held,

 The trial court's refusal to give the appellant's proffered instruction on voluntary intoxication is supported by our holding in McDaniel v. State, 356 So. 2d 1151 (Miss. 1978), wherein this Court said:

 " If a defendant, when sober, is capable of distinguishing between right and wrong, and the defendant voluntarily ...


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