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ROBERT RIGBY v. STATE OF MISSISSIPPI

MARCH 12, 1986

ROBERT RIGBY
v.
STATE OF MISSISSIPPI



BEFORE PATTERSON, HAWKINS AND PRATHER

HAWKINS, JUSTICE, FOR THE COURT:

Robert Rigby appeals from his conviction in the circuit court of Attala County of grand larceny and sentence to five years imprisonment, without parole as a recidivist under Miss. Code Ann. 99-19-81 (1972).

The only issue we address on this appeal is whether this case should be reversed and remanded because the circuit judge overruled Rigby's motion for a severance. Because the circuit judge subsequently directed a verdict in favor of the co-defendants, we find Rigby was not prejudiced by this pre-trial denial of a severance and affirm.

 FACTS

 Wayne and Charlotte Weaver owned a residence in Attala County. On November 13, 1983, while they were on a trip to Kentucky, their house burned.

 The examination of the charred remains failed to show signs of numerous appliances and furniture which had been in the house prior to their departure to Kentucky.

 Their appliances and furniture were found in the possession of J.D. Mangrum, who had purchased them from Rigby, Sammy Tavares and Ricky Tavares, paying them $200.00.

 On February 28, 1984, Rigby and the Tavareses were indicted for grand larceny. The Tavareses were represented by one attorney and Ribgy by another. On March 13, 1984, the Tavareses made a motion for a severance, and on March 16, Ribgy likewise made a motion for a severance. The reason each sought a severance was their respective defenses were in conflict and adverse to the other. The Tavareses' defense was exculpatory of themselves at the expense of Rigby. His was precisely reverse.

 On September 10, 1984, the circuit judge by order denied the severance. Trial proceedings began the next day against all three defendants.

 Following presentation of the state's case-in-chief, all three defendants made motions for a directed verdict. The circuit judge sustained the motion of the Tavareses and overruled Rigby's motion.

 Rigby then testified in his own behalf, and in rebuttal the Tavareses testified as witnesses for the state.

 LAW

 Several errors are assigned on appeal. We find only one meriting discussion, the refusal of the circuit judge to grant a motion for severance which was timely made.

 Sustaining a motion for a severance, even though timely made, is ordinarily discretionary with the circuit judge in all criminal trials, except death penalty cases. Miss. Code ann. 99-15-47 (1972); 4.04 Rules of Criminal Practice; Cardwell v. State, 461 ...


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