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SAM GEARLSON (a/k/a GERALDSON) v. STATE OF MISSISSIPPI

JANUARY 29, 1986

SAM GEARLSON (a/k/a GERALDSON)
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, DAN LEE and PRATHER

ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:

Sam Gearlson (a/k/a Geraldson) was indicted, tried and convicted in the Circuit Court of Hancock County on a charge of aggravated assault and sentenced to twenty (20) years in custody of the Mississippi Department of Corrections. He has appealed from the judgment and sentence and assigns seven (7) errors in the trial below.

On the night of December 26, 1982, Phillip Ladner and John Shaw were drinking beer in Mayberry's Bar in Northern Hancock County. Around ten o'clock the appellant entered the bar. He had been deer hunting all day and before he could order a drink, a fight broke out between two other customers. The bartender asked appellant, who was 6'5 "tall and weighed 280 lbs., to break up the fight. Apparently, that was done with dispatch.

 Ladner admitted that he was tipsy, but denied being drunk. While he and appellant had known each other for more than a year, they had never engaged in an argument. Nor was there any animosity between them.

 According to Ladner, he went outside the bar room to get cigarettes, which were in his car, and, as he left the building, he was met by appellant, who had a shotgun in his

 right hand, and a pistol in his left hand. Appellant poked him in the chest with the shotgun. Ladner fell against a truck and appellant fired the shotgun, wounding Ladner in the leg. Ladner denied possessing any kind of weapon or that he threatened appellant in any manner or said any harsh words to him.

 Appellant testified that, as he was breaking up the fight in the bar, Ladner told him" he'd fight in there anytime he got ready, said that he had something for me. "Further, that Ladner then grasped a pistol in his back pocket; that appellant walked out of the bar and when Ladner came out shortly thereafter, Ladner reached in his back pocket and pulled out the pistol; that appellant reached into his car and got a pistol and shotgun; that Ladner raised his pistol, causing appellant to poke him in the chest with the shotgun; that Ladner gave a pistol to Shaw and told him to get rid of it. As anyone might guess, Ladner denied that testimony of appellant.

 I. - III.

 Appellant contends (1) that the evidence is insufficient and lacking in weight to support the guilty verdict; (2) the lower court erred in permitting Officer Seay to testify that the appellant did not answer his question as to whether or not Ladner had threatened him, and (3) the lower court erred in restricting the appellant's cross-examination of the State's witness Phillip Ladner.

 The first assignment is resolved by the rule established for many years that appellate courts are required to consider the evidence in a light most favorable to the State and accept as true the evidence supporting, or tending to support the verdict, with all favorable inferences that reasonably may be drawn therefrom. Evans v. State, 460 So. 2d 824 (Miss. 1984); Winters v. State, 449 So. 2d 766, 771 (Miss. 1984); Groseclose v. State, 442 So. 2d 297 (Miss. 1983); Sadler v. State, 407 So. 2d 95, 97 (Miss. 1981); Warn v. State, 349 So. 2d 1055 (Miss. 1977). The evidence presented a guilt issue for the jury to determine and amply supports the verdict.

 We have carefully examined Assigmments II and III and find no merit in them.

 IV. - V.

 Appellant complains (4) that the lower court erred in giving Instruction C-17, which is a" form of the verdict "

 instruction. He argues the vice of the instruction to be that the court did not provide a lesser-included offense, viz, simple assault. There is no merit in the assignment because appellant stated that he had no objection to it. Booker v. State, 449 So. 2d 209, 220 (Miss. 1984); Edwards v. Thigpen, 433 So. 2d 906 (Miss. 1983); Colburn ...


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