BEFORE HAWKINS, P.J., PRATHER AND ZUCCARO, JJ.
PRATHER, JUSTICE, FOR THE COURT:
This is a criminal appeal taken from the Circuit Court of Hinds County wherein the appellant, William Lamar Hooker, indicted on May 15, 1984, was convicted of embezzlement and sentenced to serve five years in the custody of the Mississippi Department of Corrections, with four years suspended, and one to be served. The trial was held in February, 1986, with the new Mississippi Rules of Evidence in effect. On appeal, Hooker assigns as error, inter alia, the following:
(1) The trial court erred in denying the defendant's motion to dismiss the indictment on the ground that his due process rights under the Mississippi and United States Constitutions had been violated by the unexcused and unreasonable delay in charging him with the crime.
(2) The trial court committed reversible error in excluding the testimony of Jewell Rotenberry Harvey.
(3) The trial court committed reversible error in allowing the State to introduce a letter written by Scottye Hooker two days prior to trial.
(4) The trial court committed reversible error in admitting defendant's response to a request for admission in the civil proceeding.
The Minnie B. Rotenberry trust was established in 1973 with Dr. Clinton Rotenberry and Hooker as co-trustees.
Clinton Rotenberry died in 1974, and Hooker became sole trustee. Mrs. Rotenberry was the settlor and sole beneficiary of the trust with all of the net income from the trust to be paid to her annually. The trust, which was irrevocable, consisted of about 1,050 acres of Delta farm land which Mrs. Rotenberry conveyed to the trust at the time it was created. At that time, Hooker was married to Scottye Rotenberry Hooker, the granddaughter of Mrs. Rotenberry.
The $43,500 which is the subject of this case was income received from the sale of dirt from the trust property. In June, 1977, Hooker, as trustee, signed a contract for the sale of dirt with Boyd Construction Company. On May 25, 1978, Boyd Construction issued a check in the amount of $43,500, payable to" Wm. L. Hooker "as payment for the dirt. There is no indication on the back of the check that Mrs. Rotenberry ever possessed it. On May 30, 1978, Hooker made a deposit of the check to a joint bank account, maintained in his and his wife's name.
In February, 1980, Scottye Hooker left Lamar Hooker, and divorce proceedings began, lasting over a year and a half. As part of the divorce decree, Mr. Hooker received custody of two of their three children.
In the summer of 1980, Mrs. Hooker became conservator for her grandmother, Mrs. Rotenberry. Then Mrs. Hooker, joined by others in the family, petitioned the Chancery Court of Quitman County to have her husband removed as trustee and to have him provide an accounting. On July 25, 1980, B. E. Grantham, Jr., was appointed receiver of the trust pending the outcome of the civil suit. Grantham testified that he contacted Hooker about the records of the trust but that Hooker was unable to provide them. Pursuant to chancery court orders, Hooker submitted two accountings, which were unsatisfactory.
In May, 1981, Grantham engaged an accounting firm. On September 30, 1981, Mrs. Rotenberry died at the age of 94 years. On January 13, 1982, James Shearer, the C.P.A. assigned to the case, completed the accounting. He testified to the necessity of reconstructing the records of the trust. From his research, he discovered the $43,500 check received from Boyd Construction and deposited into Hooker's personal account, in his and his wife's names, but he found no activity on the account and no benefit therefrom by Mrs. Hooker after the date of deposit. There was no documentation that the check was for trust business or for distribution to trust beneficiaries. The funds were later transferred to other Hooker accounts.
The civil lawsuit proceeded, and trial was held in April, 1982. Hooker appealed the adverse ruling of the Chancery Court to the Mississippi Supreme Court, which affirmed the chancellor's decision in late 1983. After the civil matter was disposed of, Grantham brought Hooker's conduct to the attention of the District Attorney's office in Hinds County.
DID THE TRIAL COURT ERR IN DENYING THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT ON THE GROUND THAT HIS DUE PROCESS RIGHTS HAD BEEN VIOLATED BY THE UNEXCUSED AND UNREASONABLE DELAY IN CHARGING HIM WITH THE CRIME?
On July 16, 1985, at the hearing on the motion, the parties stipulated that Minnie Rotenberry was the owner of the property allegedly embezzled on June 2, 1978; that she died on September 30, 1981; that during her lifetime, she filed no complaint or report with any law enforcement agency or prosecutor's office anywhere regarding the matter alleged in the indictment; that the indictment was returned on May 15, 1984; and that no arrest or initiation of prosecution occurred prior to the returning of the indictment.
Grantham testified that in early 1984, he brought information with respect to the trust to the DA's office in the First Judicial District of Hinds County, waiting until then because the civil suit was appealed to the Supreme ...