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BILLY CUMMINS v. STATE OF MISSISSIPPI

NOVEMBER 04, 1987

BILLY CUMMINS
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, C.J., PRATHER & SULLIVAN, JJ.

SULLIVAN, JUSTICE, FOR THE COURT:

Billy Cummins was a Sunflower County Supervisor. On March 23, 1987, he was convicted of receiving stolen property in violation of Section 97-17-69, Mississippi Code Annotated (1972). Cummins was sentenced to two (2) years imprisonment, which was suspended; placed on unsupervised probation for two (2) years; fined $5,000.00; and removed from office.

Cummins assigns six errors on this appeal:

 I. The indictment was fatally defective and the proof insufficient to convict in failing to allege or prove ownership of the property allegedly stolen and described in the indictment;

 II. The State failed to advise the jury that Ray Thomas, who allegedly sold the chemicals to the defendant, and James Eugene Powell, who allegedly stole the chemicals, had been granted immunity for their testimony;

 III. The admission of hearsay statements made by Bill Cummins, Jr., through Robert Malone on rebuttal, was not in accord with the spirit or the letter of Rule 803(24) or Rule 804(b)(5) of the Mississippi Rules of Evidence and the admission of such evidence denied the defendant his right to confront witnesses against him;

 IV. The admission of the testimony of Officer Robert Malone after the defense rested constituted improper rebuttal testimony and violated the defendant's right to a fair trial;

 V. The State failed to advise the defendant, in response to defendant's exculpatory Brady type motion, that the authorities in Louisiana advised that no chemicals were reported stolen; and

 VI. The court failed to instruct the jury that

 the receiving must be with felonious intent.

 I.

 WAS THE INDICTMENT FATALLY DEFECTIVE AND THE PROOF INSUFFICIENT TO CONVICT IN FAILING TO ALLEGE OR PROVE OWNERSHIP OF THE PROPERTY ALLEGEDLY STOLEN AND DESCRIBED IN THE INDICTMENT?

 On January 23, 1987, an indictment was filed charging Billy Cummins, a Sunflower County Supervisor, with receiving stolen property. The indictment alleged that the property which he had received had been" recently stolen from farms in Concordia Parish, Louisiana. "Cummins was arrested and released on bond. On the day of the trial, before any proof was offered, Cummins moved to quash the indictment on the ground that it failed to allege ownership of the property. At trial, the State offered James Powell, a self proclaimed professional thief, who claimed to have helped police solve 170 cases of stolen property including the case at hand. Powell testified that he stole the chemicals found in Cummins' shop. When asked where the chemicals had been stolen from Powell responded as follows:

 A. Down in Concordia Parish, Louisiana - in the southern part of Louisiana. They were on a farm out in the country.

 Q. Do you know whose farm that was?

 A. I don't know the individual's name. The Louisiana authorities have that information.

 During the hearing on Cummins' motion for a new trial the assistant district attorney revealed to the court that the State did not know to whom the property belonged. She stipulated that she had spoken with the Concordia Parish authorities and was told they had no reports of chemicals being stolen.

 Cummins filed a supplemental motion for a new trial based on the State's failure to reveal this information. The motion was denied.

 Although it is not briefed as such, this assignment is one which falls under Rule 2.05 of the Uniform Criminal Rules of Circuit Court Practice which provides in pertinent part:

 The indictment upon which the defendant is to be tried shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation against him. . . . .

 Further, this Court has held that if a statute fully and clearly defines an offense, an indictment in the language of the statute is sufficient. Johnson v. State, 475 So. 2d 1136 (Miss. 1985), citing Jackson v. State, 420 So.2d 1045 (Miss. 1982). The indictment in question charged Cummins with receiving stolen goods, knowing them to be stolen, and provided a sufficient description of the goods to enable Cummins to prepare his defense.

 Because we find that Cummins' indictment fairly tracks the language of the statute, and is in fact more specific than the statute, we find it also sufficient under Rule 2.05. Accordingly, we find Cummins' first assignment of error without merit.

 DID THE STATE'S FAILURE TO ADVISE THE JURY THAT RAY THOMAS, WHO ALLEGEDLY SOLD THE CHEMICALS TO CUMMINS, AND JAMES EUGENE POWELL, WHO ALLEGEDLY STOLE THE CHEMICALS, HAD BEEN GRANTED IMMUNITY FOR THEIR TESTIMONY CONSTITUTE REVERSIBLE ERROR?

 Cummins never offered any objection or jury instructions on this matter; therefore consideration of this assignment is procedurally barred and we do not reach its merits. Gray v. State, 487 So. 2d 1304 (Miss. 1986); Gray v. State, 472 So. 2d 409 (Miss. 1985); Shelton v. State, 445 So. 2d 844 (Miss. 1984); Rule 42, Miss. Sup.Ct. Rules.

 III.

 WHETHER ADMISSION OF HEARSAY STATEMENTS MADE BY BILL CUMMINS, JR., THROUGH THE WITNESS, ROBERT MALONE, ON REBUTTAL, WAS NOT IN ACCORD WITH RULE 803(24) OR RULE 804(b)(5) OF THE MISSISSIPPI RULES OF EVIDENCE AND THE ADMISSION OF SUCH EVIDENCE ...


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