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JAMES MICHAEL STRINGER, a/k/a JIMMY MICHAEL STRINGER v. STATE OF MISSISSIPPI

AUGUST 07, 1985

JAMES MICHAEL STRINGER, a/k/a JIMMY MICHAEL STRINGER
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, DAN LEE and ROBERTSON

ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:

James Michael Stringer was found guilty in the Circuit Court of the First Judicial District, Hinds County, Mississippi, on a charge of aggravated assault and was sentenced to twenty (20) years with the Mississippi Department of Corrections. He has appealed to this Court and assigns two errors in the trial below.

The evidence reflects that, on October 31, 1981, Larry Westbrook, the victim, and Bill Moak were drinking beer in Harley D's lounge, Jackson, Mississippi; that they caused a disturbance in the lounge and appellant became involved in it; that Westbrook and Moak were asked to leave the lounge and they went to the parking lot where Westbrook's Corvette automobile was parked approximately twenty (20) feet from appellant's Camaro automobile.

 Jerry Benson, a witness for the appellant, testified he was standing in the front doorway of the lounge and that he heard air escaping from an automobile tire; that he saw Westbrook and Moak headed to Westbrook's car from appellant's vehicle; and that he called appellant and told him "I think they just cut your tire." Appellant emerged from the lounge, observed that the left back tire on his automobile had been cut, and was flat, and he went to the Westbrook car where he inquired why Westbrook had cut his tire. Westbrook got out of the car, grabbed appellant in a bear hug and they began to struggle. Benson caught Westbrook by the shoulder and struck him five times in the back, attempting to separate the men. Appellant pulled a handgun and struck Westbrook on the head several times with it. Westbrook turned toward Benson and appellant shot him in the back, the bullet ranging downward through the pelvic bone. Westbrook was helped to his automobile and Moak drove him to a doctor as quickly as possible.

 Dr. Ken Stone first saw Westbrook about 11:30 p.m. on October 31, 1981, in the emergency room of Hinds General Hospital. He observed a large wound in the lower back and X-rays revealed that the pelvis was fractured and bullet

 fragments were in the pelvic bone. An exploratory laparotomy, which opened the abdominal cavity, was performed to determine whether or not there was internal damage. The procedure was considered to be a major operation.

 Westbrook was hospitalized for seven days and in addition to the back injury, fifty stitches were taken in his head. He was under the care of a physician for approximately three months.

 I.

 THE LOWER COURT ERRED IN PERMITTING THE STATE TO ELICIT HIGHLY PREJUDICIAL STATEMENTS IN FRONT OF THE JURY REGARDING APPELLANT'S BAD CHARACTER, PRIOR BAD ACTS AND PREVIOUS TRIALS.

 The appellant contends (1) that the State erred in inquiring of the appellant's witness, Jerry Miley, whether or not he had been a character witness for appellant.

 Miley was called to the stand by appellant, and at the conclusion of his direct examination, he was asked whether or not he had been subpoenaed as a witness by the State. Miley answered in the affirmative. On cross-examination, District Attorney Peters asked the following questions:

 CROSS EXAMINATION BY MR. PETERS:

 Q. Mr. Miley, after you were subpoenaed by the State, did we find out that you had been a character witness for this Defendant before?

 A. If you did, it was unbeknowing to me.

 Q. Have you been a character witness for this Defendant before?

 A. Certainly have.

 BY MR. WILKINS: Your Honor, I object to that. It's improper and I move for a mistrial.

 BY THE COURT: Overruled. Move along.

 The appellant argues that the district attorney's question as to whether or not Miley had been a character witness for appellant and his response in the affirmative informed the jury that Stringer had been tried for other

 crimes, and constituted reversible error. We do not agree. The obvious purpose of the district attorney's questions was to show that Miley was interested in appellant's defense and that he was biased in favor of the appellant. The interest, bias or prejudice of a witness may be shown for the purpose of affecting his credibility. Tate v. State, 317 So. 2d 23 (Miss. 1975). We are of the opinion that the question and answer did not amount to evidence of previous crimes and did not constitute reversible error.

 Appellant contends (2) that the State erred in eliciting from witness Miley information of other crimes regarding the carrying of a concealed weapon.

 The district attorney cross-examined Miley as follows:

 Q. How much bigger is Larry Moak than this Defendant - I mean, Larry - Larry Westbrook than this Defendant?

 A. They're somewhat of the same size.

 Q. Same size. What is it that would be a good equalizer between them?

 A. A .357 Magnum.

 Q. Is that what Jimbo Stringer shot that man with?

 A. I presume so.

 Q. Why do you presume that?

 BY MR. WILKINS: Your Honor, I object to what he presumes. Ask ...


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