BEFORE ROY NOBLE LEE, SULLIVAN and ANDERSON
ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:
Herbert Wallace was jointly indicted with Anthony Jackson, Ronald Fitzgerald and Ronnie Ross in the Circuit Court of Adams County for armed robbery. After three (3) mistrials, one of which resulted from prosecutorial misconduct and the other two on account of the jury's being unable to reach a verdict, Wallace was found guilty, but the jury could not agree upon punishment. Thereupon, the trial judge sentenced him to twenty-five (25) years in custody of the Mississippi Department of Corrections. Wallace has appealed from that conviction and sentence and assigns two (2) errors in the trial below.
About 9 p.m. on December 5, 1980, three (3) males entered the Minit Man #9 convenience store in Adams County and robbed it. Felix Brown and Tommy Byrd, employees of the store, were working at the time. According to them, one of the robbers wore a red ski mask and the other two had stockings over their heads and were wearing stocking hats. The man with the red ski mask was holding a gun on Brown, who thought the robber was wearing a blue jump suit. Byrd thought one of the other men wore the blue jump suit. The robbers took approximately twelve hundred dollars ($1,200) in cash, checks, and food stamps. Brown and Byrd were ordered to lie down on the floor.
As the three men left the store, Arthur Byrd, uncle of Tommy Byrd, was walking up to the convenience store. He watched them because they were running. They passed within a few feet of Byrd, jumped down into a ditch and headed toward Highway 61. The men were wearing the same clothes and masks described by the employees of the store. They passed out of view and, in a few seconds, he saw a white Pontiac car with an antenna on the rear, and occupied by four males, heading toward the highway. Byrd suspected something had happened in the store. He entered the store, learned about the robbery, and called and reported it to the sheriff's office.
Phil Marler, a sheriff's deputy, received a description of the white Pontiac and passed a vehicle fitting that description. He stopped the car, which was driven by
Ronald Fitzgerald. Herbert Wallace was on the rider's side in front; Anthony Jackson and Ronnie Ross were on the backseat. The car belonged to Wallace's mother. A stocking was found tied to the waist of Anthony Jackson. Deputy Sheriff Tommy Ferrell was called to the scene, and he searched the automobile. He found fifty-four dollars ($54.00) in an ashtray on the right rear side of the car, where Jackson was sitting. Additional cash, checks, eight (8) ticket stubs marked Minit Man #9, one (1) marked Minit Man #10, and a gun were found stashed in the opening for the sunroof in the car. A red ski mask was found on the front seat. Ownership of the gun could not be traced and no fingerprints were lifted.
Anthony Jackson testified in behalf of Wallace and stated that he and Wallace had been drinking beer on the afternoon and night of December 5 and riding around. According to him, Wallace ran off the road and hit something, causing a flat tire. They changed the flat and were beginning to pull off when Ronald Fitzgerald, Ronnie Ross and a Michael Todd Douglas ran up and asked for a ride. Since they were drunk, Fitzgerald drove the automobile. Douglas ran off toward a blue Nova across the street. Jackson and Wallace knew the other males, but Jackson denied seeing any money or guns in the car. Wallace's testimony was essentially the same as that of Jackson. He also denied going in the store that night and that he saw guns or money.
THE LOWER COURT ERRED IN FAILING TO GRANT APPELLANT'S MOTION TO DISMISS PRIOR TO TRIAL BASED UPON CONSTITUTIONAL GROUNDS.
At the three preceding trials, which ended in mistrials, appellant was tried along with Anthony Jackson. Prior to the trial which resulted in the conviction of appellant, Anthony Jackson entered a plea of guilty to grand larceny. Appellant contends that the fourth prosecution, resulting in his conviction, was barred on double jeopardy grounds. Article 3, 22, Miss. Const. 1890, provides the following:
No person's life or liberty shall be twice placed in jeopardy for the same offense; but there must be an actual acquittal or conviction on the merits to bar another prosecution.
In Mallette v. State, 349 So.2d 546 (Miss. 1977), this Court held that the lower court did not err in refusing to dismiss because of two previous mistrials. Mallette was
convicted of manslaughter and appealed, contending that the conviction after two mistrials as a result of hung juries placed him in double jeopardy. The Court held that ". . . in order for a plea of former jeopardy to avail, it must appear that the defendant was actually acquitted or convicted in a former trial on the merits of the crime for which he is again sought to be convicted." 349 So.2d 548. See also Illinois v. Somerville, 410 U.S. 458, 93 S. Ct. 1066, 35 L.Ed.2d 425 (1973); Bounds v. State, 271 So.2d 435 (Miss. 1973); Smith v. State, 158 Miss. 355, 128 So. 891 (1930); and State v. Moor, 1 Miss. [Walk.] 134 (1823).
The jury's inability to agree is not an acquittal. In Arizona v. Washington, 434 U.S. 497, 98 S. Ct. 824, 54 L.Ed.2d 717 (1978), the Court said:
The argument that a jury's inability to agree establishes reasonable doubt as to the defendant's guilt, and therefore requires acquittal, has been uniformly rejected in this country. Instead, without exception, the courts have held that the trial judge may discharge a genuinely deadlocked jury and require the defendant to submit to a second trial. The rule accords recognition to society's interest in giving the prosecution one complete opportunity to convict those who have violated its law.
434 U.S. at 509, 98 S. Ct. at 832, 54 L.Ed.2d at 730.
In Wade v. Hunter, 336 U.S. 684, 69 S. Ct. 834, 93 L.Ed. 974 (1949), the United States Supreme Court stated:
The double jeopardy provision of the Fifth Amendment, however, does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed. There may be unforeseeable circumstances that arise during a trial making its completion impossible, such as the failure of a jury to agree on a verdict. In such event the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again. . . . What has been said is enough to show that a defendant's valued right to have his trial
completed by a particular tribunal must in some instances be subordinated to the public's interest in fair trials designed to end in just judgments.
336 U.S. at 688-689, 69 S. Ct. at 837, 93 L.Ed. at 978.
We are of the opinion that double jeopardy did not attach as a result of the previous mistrials, and that this assignment is without merit.
THE LOWER COURT ERRED IN OVERRULING APPELLANT'S
OBJECTIONS AND MOTIONS FOR MISTRIAL AS TO THE
DISTRICT ATTORNEY'S QUESTIONING OF A CO-INDICTEE DEFENSE WITNESS AS TO HIS GUILTY PLEA TO A LESSER CHARGE AND REFERENCE TO SAME ON CLOSING ARGUMENT.
As previously stated, appellant and Anthony Jackson had been codefendants at three previous trials and, prior to the fourth trial, Jackson entered a plea of guilty to grand larceny. During ...