BEFORE ROY NOBLE LEE, DAN LEE, and ROBERTSON
ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:
Eddie Presley was indicted in the Circuit Court of Lowndes County at the February 1982 Term, for armed robbery and as an habitual offender. He was tried on May 26, 1982, and found guilty, but the jury declined to impose life imprisonment. Thereupon, the court, Honorable Joe O. Sams, Sr., presiding, heard evidence relating to the previous convictions of Presley, and, at the conclusion of that hearing, found Presley to be an habitual criminal and sentenced him to serve a term of forty (40) years with the Mississippi Department of Corrections. The sentence was the maximum term of imprisonment prescribed by such felony and less than the defendant's reasonable life expectancy, the sentence not to be reduced or suspended, nor would Presley be eligible for parole or probation. Presley has appealed here and assigns two errors in the trial below.
THE LOWER COURT ERRED IN REFUSING TO INSTRUCT THE JURY THAT EDDIE PRESLEY COULD NOT BE GUILTY OF SHOPLIFTING; HIS CONVICTION OF ARMED ROBBERY
IS NOT SUPPORTED BY THE EVIDENCE, AND HIS SENTENCE OF FORTY YEARS AS AN HABITUAL OFFENDER IS IMPROPER.
The instruction referred to in the first assignment of error is, for all purposes, the request for a peremptory instruction of not guilty. We will address the assignment on that question.
On January 30, 1982, appellant was seen by employees of the Kroger Store in Columbus, Mississippi, attempting to place two packages of ribeye steaks in his trousers and under his shirt. He was able to conceal only one package of the steaks under his clothes and put the second package on a nearby shelf and began to walk quickly toward the entrance of the store. A Kroger employee called Charles Allen McCollum, manager of the Kroger store, over the intercom system and reported that a man in the cereal aisle was stuffing meat under his clothes. McCollum stepped out of his office, and Tom Lynn, head meat cutter, went with him to stop appellant, who was approaching the front doors. McCollum hollered at appellant and tried to get him to halt, whereupon, appellant reached in his pocket and pulled out a pocketknife, opened the blade, and put the knife in his palm. McCollum pursued appellant at a safe distance, but was afraid of the knife, which appellant exhibited, and remained a safe distance from him for fear of getting cut. McCollum called upon appellant several times to drop the merchandise. Finally appellant pulled the steaks out of his trousers and threw them on the ground.
The police department had been notified of the incident and officers arrived in the area where McCollum and Lynn had followed appellant. McCollum pointed out the direction in which appellant had gone, and shortly thereafter, the police apprehended him.
Appellant testified in his own behalf. He stated that on the morning of January 30, he and a companion had been inside the Kroger store and had stolen three packages of meat, concealing them in their trousers. That afternoon, they returned to the Kroger store and appellant went directly to the meat box, picked up two packages of meat, walked up the aisle, got close to the shelf, and turned sideways to look in both directions so no one could notice what he did; that he was unable to put both packages inside his pants but was able to conceal one such package inside his pants and under his shirt; he opened the pocketknife in order to cut the Kroger label off the package of meat and not with the intention of threatening or harming McCollum; and that he put his knife
down when the police arrested him.
There is no dispute in the facts except as to whether or not appellant took the knife out of his pocket and opened the blade for the purpose of threatening McCollum and Lynn in detaining and apprehending him, or whether he had the knife for the purpose of cutting the Kroger label from the package of meat. Appellant simply contends that, as a matter of law and fact, the evidence supports only a conviction for shoplifting, not armed robbery.
Excerpts from the testimony of the Kroger manager Charles McCollum follow:
Q Well, what happened then?
A Well, he told me that, "Here he comes; kind of motioned for him - just made a motion and said," That's him right there ". When the guy came across the front, he come through Aisle No. 5 and just kept going on out the front of the store, and I yelled to him, I said," Hey, hey, you ", you know, tried to get him to stop, and he reached in his pocket and pulled out a knife and opened his knife up and put it in his palm. He just kind of palmed it, and I seen the knife, and I said," Hey, he's got a knife. "
Q All right, you've got a pen in your pocket I see. If you would, take your pen and show the jury what he did exactly.
A Well, once he opened the knife up, he just kind of put it in his hand like this (indicating); kind of palmed it, and then he went on out of the store, and Tom Linn was following me - I don't know how close - but he was following behind me, and I was saying," He's got a knife ", several more times. I don't know how many times I said it. And I got out of the store, and he kind of turns and shows me the knife. He don't pull it at me, but he just kind of turns and shows it to me.
Q Would you show the Jury how he showed you the knife the second time, Mr. McCollum?
A Well, he stood - he just kind of turns and shows me his hand; shows me the knife; let's me know he has one.
Q At that time, how was the knife, as far as to whether the knife was open or closed?
Q How far away from him were you?
A I don't know; about five or ten feet. I never did get no closer than five feet from him, and that was inside the store.
Q Why didn't you grab him and hold him for the police?
A I seen the knife. In all my time at Kroger's, that's the first time someone has pulled a weapon on me. I didn't attempt to stop him.
Q Why did you decide that you wanted to go back to the store, Mr. McCollum?
A I told Tom, I said," Let's go back to the store and wait for the police because he has the knife. "And then we turned around; went back to the store. By that time, the police officer had arrived, so we motioned for him to follow us, and then we made a couple of blocks in the vicinity where he was last seen at, and then I finally got out of Tom's pickup truck and gets in the police car with the officer.
A Well I said several times that he had a knife, he had a knife, and-
Q You were talking to Tom?
A Well, I was just wanting everybody to know that he had a knife. I wanted somebody to see it. I said several times he had a knife, and then when I got out of the store, he turned and showed it to me again, and then I never said nothing else to him again until he started running, and I said," You better drop it. The police is on the way. Drop it. The police is on the way. "
Q Did you - did he stop when he turned around or did he continue on out of the store?
A He slowed down to show me the knife. He didn't come to a complete stop.
Q In other words, Charles, what you're saying is, as he walked out of the store, he turned ...