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JACK E. SMITH v. STATE OF MISSISSIPPI

FEBRUARY 13, 1985

JACK E. SMITH
v.
STATE OF MISSISSIPPI



BEFORE WALKER, HAWKINS AND ROBERTSON

WALKER, PRESIDING JUSTICE, FOR THE COURT:

This is an appeal from the First Judicial District of Hinds County, Mississippi wherein the appellant, Jack Smith, was indicted and tried as a recidivist for the crime of murder. Upon conviction he was sentenced to serve a term of life without benefit of parole or probation in the custody of the Mississippi Department of Corrections. Aggrieved with the

lower court's holding, he has perfected an appeal to this Court assigning the following as error:

 (1) The conviction of the appellant was against the overwhelming weight of the evidence.

 It is undisputed that on April 24, 1983, the appellant and Arthur Gene Crump, the victim, argued outside the home of James Scott, Jr. During the argument Crump pulled a knife on appellant. Scott intervened and Crump remained at Scott's home while Smith went to his home nearby. Not long afterwards the appellant returned with a shotgun. He testified he saw Crump make a "pistol play" (reach for a gun in his pants leg) and he fired hitting Crump in the upper leg. He then reloaded his gun and shot Crump in the head.

 Testimony offered by the State's witnesses differed from that of the appellant. According to that testimony Crump was approaching a cab his girlfriend had summoned when he was confronted by the appellant who shot him in the leg. Crump pleaded with appellant not to shoot again when appellant then shot Crump in the head. Crump was not reaching for a gun and his knife was in his back pocket at the time he was shot. No gun was found on or near his body following the incident.

 These facts present a classic jury issue. We have often stated that where the testimony is in conflict, the jury is the sole judge of the weight and worth to be given that testimony. They may believe or disbelieve, accept or reject the utterance of any witness. Groseclose v. State, 440 So.2d 297 (Miss. 1983); Gathright v. State, 380 So.2d 1276 (Miss. 1980).

 The jury was properly instructed on the State's charge against the appellant and his assertion of self-defense, and they resolved those conflicts in behalf of the State.

 (2) The lower court erred in failing to sustain the objection of appellant to certain prejudicial remarks and conduct of the prosecution.

 During cross-examination, the district attorney questioned appellant at length concerning his acquisition of a gun permit in this State. Defense counsel objected to the district attorney's conduct, at which point the district attorney said, "By george, I know he's lying now."

 With regard to the district attorney's general conduct in cross-examination, trial courts are allowed considerable discretion to determine whether or not such conduct during a

 trial is so prejudicial that an objection should be sustained. Edmond v. State, 312 So.2d 702 (Miss 1975). After carefully reading the colloquy between the appellant and the district attorney, we are of the opinion that the circuit judge did not abuse his discretion in overruling appellant's objection.

 (3) The lower court erred in failing to grant a continuance or mistrial due to the absence of three defense witnesses.

 The day of trial both sides announced ready to proceed. The second day of trial the appellant announced that the subpoena docket showed three of his witnesses had been personally served; however, he learned they were unavailable to testify; two were on vacation. These witnesses were law enforcement personnel and subpoenas had been handed to a female employee ...


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