BEFORE ROY NOBLE LEE, DAN LEE and ROBERTSON
ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:
Larry S. Hentz was indicted, tried and convicted in the Circuit Court of Panola County for receiving stolen property and was sentenced to five (5) years as an habitual offender in the custody of the Mississippi Department of Corrections.
Hentz has appealed here, assigning the following errors in the trial below:
I. That the trial court erred in failing to exclude the testimony of David Peterson which was timely objected to by the appellant's attorney.
II. That the trial court erred in refusing the following jury instructions requested by appellant: (a) D-2 and (b) D-11.
III. That the trial court erred in failing to require the State to produce all tape recordings of the appellant for inspection by the appellant's attorney, said tapes, etc., being previously requested by a pretrial discovery motion.
There is no merit to Assignments I and II. Under I, David Peterson, a Memphis Police Department detective, wired confidential informant Elliott for sound and he listened to portions of the conversation between appellant and Elliott. Appellant objected to the introduction of the tapes in evidence and the State called Peterson to the stand. He was permitted to testify about the conversation over the objection of appellant.
Instruction D-2 was a comment upon the weight of the evidence. Similar instructions have been condemned. Goss v. State, 413 So. 2d 1033 (Miss. 1982); Bell v. State, 411 So. 2d
763 (Miss. 1982). Instruction D-11 was repetitious of other instructions given by the court and further involved the principle of jury nullification. Wilson v. State, 451 So. 2d 718 (Miss. 1984); Irving v. State, 441 So. 2d 846 (Miss. 1983); Leatherwood v. State, 435 So. 2d 645 (Miss. 1983); Hill v. State, 432 So. 2d 427 (Miss. 1983).
Appellant Larry S. Hentz was indicted for the crime of receiving and concealing one (1) 1970 model 403 International Combine, property of J. C. McCathren. The offense report introduced in evidence by the witness Sheriff David Bryant, Panola County, Mississippi, reflected a complaint made by J. C. McCathren, for grand larceny of his International Combine. Michael Rudd, a witness for the State, testified that he had worked for the appellant, and that in September, 1982, he and appellant left appellant's home and went to Como, where they got the combine; that they rode in appellant's pickup truck and found that the combine had a flat tire; that they got air tanks and aired up the tire and Rudd drove it down the highway; after Rudd cranked it and started driving away, appellant left in the pickup truck; that Rudd parked the combine in a gravel pit near Will Lee's house in the vicinity of Pope; that he next saw it at Shelton Hentz' place in the woods; that appellant Larry Hentz sent Rudd and Michael Johnson to the combine with instructions to cut it up (with a blow torch).
Michael Johnson testified for the State that Larry Hentz sent Michael Rudd and him to the Shelton Hentz property (father of appellant) to cut up the combine with a cutting torch; that appellant told him he wanted to cut up the combine for scrap iron so it could be moved away from the Shelton Hentz place; and that the combine was" hot ", meaning that it was stolen.
Thus, the evidence for the State made out a strong case of grand larceny against both appellant Larry S. Hentz and Michael Rudd, not ...