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MIKE WEAVER v. STATE OF MISSISSIPPI

DECEMBER 11, 1985

MIKE WEAVER
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, HAWKINS AND ANDERSON

HAWKINS, JUSTICE, FOR THE COURT:

Mike Weaver appeals from his conviction in the circuit

court of Calhoun County of the crime of burglarizing a store.

 Because of the prejudicial admission of evidence which had no bearing on the guilt of Weaver, we reverse.

 FACTS

 The John M. Hardin Clothing Company, Incorporated, a family corporation located in Derma, and operated by John M. and Betty Hardin, was burglarized on the night of November 10, 1982, by prying open a locked door. Mrs. Hardin estimated $12,000 worth of merchandise had been stolen. Two witnesses saw a blue van parked near the store in the early morning hours of the night of the burglary, one thinking it might have been a Ford.

 The grand jury of Calhoun County on January 10, 1983, indicted three men for this burglary: Ronald Vanderviss, Frank Hemphill and Weaver. The record does not enlighten us as to the whereabouts of Hemphill and Vanderviss, except an investigating officer testified Hemphill was in jail in Illinois, and Vanderviss was rumored to be dead.

 Mrs. Hardin estimated they recovered perhaps a fifth of the stolen merchandise. Most of the recovered merchandise came from Dickerson's Apparel Store in Nettleton, a retail clothing store owned by Johnny and Gloria Jean Dickerson, and operated by Mrs. Dickerson. The Dickersons had purchased this merchandise from one Billy Hughes of Mooreville. Another portion of the merchandise was recovered from an apartment in Columbus, shared by Hemphill and Vanderviss; and Vanderviss was wearing a jacket stolen from the store which was recovered. *fn1

 As to the above items, Mrs. Hardin could positively identify the jacket Vanderviss was wearing as having come from the store because of a small hole she had put in the lining. An irregular polo shirt with a hole underneath the collar, and a striped knit shirt with a spot of ink on it, which were recovered from Dickerson's, were also positively identified as having been taken from their store.

 All of the remaining items were of the same size, brand and stock numbers as those missing from their store, but Mrs. Hardin could not positively state they actually were the stolen merchandise.

 None of the above merchandise, covering numerous items of clothing, were connected to Weaver in any manner, but

 were introduced over his objection at trial in eight separate exhibits.

 Weaver also objected to two of the exhibits being offered into evidence because they had not been revealed to him pursuant to a pretrial discovery order.

 The items missing from Hardin's which were connected to Weaver were introduced in two separate exhibits, Exhibit 1 consisting of a McGregor brand "irregular" sweater, some Levi brand jeans, and polo socks. These were recovered in a search of Weaver's trailer. Mrs. Hardin testified these were of the same brand and type of merchandise which came ...


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