BEFORE WALKER, PRATHER AND ANDERSON
WALKER, PRESIDING JUSTICE, FOR THE COURT:
This case comes as an appeal from the Circuit Court of Pontotoc County, Mississippi. Roger Hussey was tried and convicted of the crime of arson. The trial court sentenced appellant to serve a term of ten years in the custody of the Mississippi Department of Corrections.
On November 9, 1980 the Western Auto Store in Pontotoc, Mississippi was burned. Larry Hester was stopped by a city policeman patrolling the area as he was leaving the store late that night. Hester told the policeman he was waiting for Roger Hussey. Hussey was the owner of the store. About this time it became obvious that the building was on fire,
Hussey was called and when he arrived he went to the patrol car where Hester was being held and asked him" What in the hell do you mean, burning my business. "
Hester did not indicate Hussey was involved in the fire until after he had plead guilty and been sentenced to ten years in the custody of the Mississippi Department of Corrections. Hester testified that almost every day after being sentenced several people, including the sheriff, came and talked to him about implicating Hussey. He further testified that after he implicated Hussey and testified before the grand jury that" They carried me back to jail, and didn't say anything, until they said the ten year sentence had been set aside, and that if I would make bond, I could go, until-until the time that they felt like they would resentence me. "He is still out on bail and has not been resentenced.
Hussey was an officer in the Mississippi Army National Guard and had been accepted for helicopter flight school. He had always wanted to go to helicopter school. In order to go to flight school Hussey had to make arrangements to keep the store operating during his absence. An attempt to sell the
store had been unsuccessful.
Hussey's bookkeepers and his accountant all testified that the store was in sound financial condition. His banker supported this testimony and said that Hussey was a good bank customer with a $75,000 to $100,000 line of credit.
Hussey's insurance agent, Joe Maxey, testified as to the amount of insurance on the contents and inventory of the Western Auto Store. Maxey testified that Hussey's insurance claim was investigated, found to be just, and paid. He testified that Hussey was paid $124,780.02 for his losses. Hussey's accountant testified that this money had been used to pay bank notes, floor-plan obligations and other business debts. Hussey took a loss on his accounts receivable of approximately $40,000.
There was testimony from W. D. Rowland and Branty Gentry that Hussey had made arrangements with them to operate his business while he was away at flight school. A representative of Western Auto also testified that Hussey had discussed the operation of the store during his absence and requested that the representative make extra visits during this time. Hussey had also recently had another Western Auto employee to come in and analyze and recondition his store.
Hussey testified that he had known Larry Hester for 14 or 15 years. He often took his personal vehicles to Hester to work on. Hester was a frequent visitor to the store and had access to it. Hester had access to store keys which were on Hussey's keyrings to his vehicles.
THE TRIAL COURT ERRED IN FAILING TO GRANT REQUESTED DEFENSE INSTRUCTION D-8.
The refused instruction reads ...