BEFORE WALKER, HAWKINS AND ROBERTSON
HAWKINS, JUSTICE, FOR THE COURT:
Troy Watson appeals from his conviction of aggravated assault in the Circuit Court of Hancock County and sentence to twenty years.
The issues we address on this appeal are the sufficiency of the evidence to convict, and the refusal of the circuit judge to grant a mistrial because two witnesses not under subpoena by either the state or defense left Mississippi shortly prior to trial to keep from testifying. Finding no error, we affirm.
Watson, unemployed and 47 years of age, lived in a house trailer in Bay St. Louis. Around noon on a Wednesday, January 5, 1983, David Brewer, a 22-year-old acquaintance of Watson's, came to Watson's trailer. With Brewer were his wife's brother, Johnny Lyarly, and Johnny's cousin or nephew, David Lyarly. Johnny was 20, David 17 years of age. Also in the trailer that afternoon was Steve Rutherford, a friend of Watson's who Brewer met that day. The group sat around the trailer that day drinking. Around 3:30 or 4:00 o'clock that afternoon, Brewer and the Lyarlys left to work on some woman's car at a local service station. They returned and the drinking continued. Beer and Jack Daniels whiskey were consumed.
According to Brewer, Rutherford accused him of stealing Quaalude pills belonging to Watson, which Brewer denied. The two of them got into a fight, Rutherford hitting Brewer with a chair. When the fight started, the Lyarlys left. The fight subsided, but apparently the argument did not. Another scuffle with Rutherford started, Brewer wound up on the floor. According to Brewer, when he got up off the floor, Watson rammed a shotgun in his fact and shot him.
According to Thomas E. Jennings, a deputy sheriff, the missile entered the side of Brewer's mouth and came out behind his ear.
Watson testified that after Brewer and the Lyarlys arrived, Brewer knocked two ash trays on his table and he asked Brewer to respect his home. Nothing eventful transpired, however, until Rutherford, who was asleep in the trailer when the young men were first there, woke when they came back. Rutherford and Brewer got into an argument, and according to Watson, Brewer tried to hit Rutherford with a chair, and Rutherford grabbed
Brewer and held him on the floor.
Watson said he asked Brewer and the Lyarlys to please leave three or four times. He said they went to the door and he thought they had left. Further, that he was preparing supper for himself and Rutherford, and while he was sitting there drinking a cup of coffee, he looked up and saw Brewer standing by the bar in the trailer.
Then, Watson said he heard a shot and saw Brewer fall forward, knock a cupboard door closed, and heard him shout that he had been shot.
Watson and Rutherford tried to minister to Brewer.
When Deputy Sheriff Jennings arrived shortly after 6:00 p.m., he saw Brewer on the floor and Watson and Rutherford wiping him with a towel. Johnny Lyarly was in a car out front, which had two 30-30 rifles, one in the back and one in the front, as well as a .32 caliber revolver in it. Johnny Lyarly told the officer he wanted to get a gun and go back in the trailer to kill Mr. Watson.
Alvin Ladner, another deputy sheriff, arrived at the trailer around 7:00 p.m. He asked Brewer who had shot him, and Brewer replied, "Troy."
Prior to the shooting, the men had been seated around the kitchen table. On the table were two .410 shotgun shells. There were pellets embedded in the trailer. Outside the trailer the officers found a .410 shotgun with one spent shell inside the chamber, and another shotgun. These weapons were about 75 feet from the trailer and 25 feet apart.
The trailer had a front and a back door. Ladner said Watson told him he was sitting at the kitchen table in a chair at the end of the hallway, and that an unidentified person walked down the hallway into the kitchen area and shot Brewer, and left. Watson furnished the officer no description of any kind of the assailant.
On the morning of the trial, both sides announced ready. After the jury was selected, in chambers defense counsel made a motion for the rule to be envoked. The mother of Brewer was in chambers with Brewer and the
Neither Rutherford nor either of the Lyarlys were under subpoena for either the state or the defense. None of these witnesses were listed as state witnesses on the indictment. On March 4, 1983, defense counsel made a discovery motion, asking inter alia for the names of all state witnesses. The discovery motion was sustained by court order on April 6. Trial began April 15, 1983. In the colloquy in chambers, defense counsel acknowledged he had been given the names of the Lyarlys, which the day before he had decided were essential to his case. He then stated on the evening before trial he had listened to some tapes furnished him by the Sheriff's Office.
No subpoena is in the record. The only information as to any subpoena, served or not, is what counsel stated to the court. Mrs. Balco, the mother of Brewer, informed the court that Brewer's father-in-law had the day previous taken both the boys to Florida.
The trial record reveals the following:
And, therefore, I'm going to have to move for a mistrial; not because I want to, because there is [sic] witnesses which I feel are essential, and I'll be glad to take it up with the Court in detail, if necessary. We have the tapes and stuff. And they were not subpoenaed in advance, particularly by the State, and the State couldn't get them, and that's when I found out they are not going to be here. And I'm sorry to bring it up at this time, but we didn't know who was going to show up this morning.
That's all right. Are you telling me that the father of one of those boys who were witnesses took them to Florida so they couldn't testify?