BEFORE HAWKINS, P.J., SULLIVAN and ZUCCARO, JJ.
ZUCCARO, JUSTICE, FOR THE COURT:
Appellants herein, Joe Wright and Johnny Wright were indicted by a grand jury in the First Judicial District of Bolivar County, Mississippi, for the burglary of an inhabited dwelling. They were tried and convicted in the Circuit Court of Bolivar County. Joe Wright was sentenced to two twelve (12) year concurrent terms and Johnny Wright was sentenced to one twelve (12) year term. From these convictions and sentences the Wrights have perfected this appeal, and assign as error:
1. THE VERDICT OF THE JURY WAS CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE.
2. THE TRIAL COURT ERRED IN REFUSING TO GRANT THE APPELLANTS' MOTION FOR A MISTRIAL WHEN THE STATE'S WITNESS, JERRY CLEVELAND, TESTIFIED THAT HE HAD BEEN "THREATENED."
3. COUNT II OF THE INDICTMENT CONSTITUTES DOUBLE JEOPARDY AS TO THE APPELLANT JOE WRIGHT.
During the early morning hours of August 28, 1986, the home of Ethel Mae Washington at 508 Brown Street in Rosedale, Mississippi, was burglarized. Mrs. Washington testified that perhaps through the Savior's help she awoke in the early hours of that morning and saw a light shining in her kitchen. Being under no misapprehension that the light indicated a supernatural visitation, her feet hit the floor and she said, "God damn you, let me get my pistol. I'll get you out of my kitchen with a flashlight." She was unable to make good her threat, however, since, without her walker, she was unable to move swiftly. The intruders fled through the kitchen and back door, taking care to close the kitchen door as they left.
Approximately 4:31 a.m., Mrs. Washington contacted the local police reporting to dispatcher, Floyd Moorhead, a/k/a "Frog," what happened. Frog called patrolman Freddie Williams and informed him of the break-in. Officer Williams proceeded to Mrs. Washington's residence to investigate. Mrs. Washington told him she had discovered someone in her house and gave him a list of items she discovered were missing, among which was her television, a clock, two electric fans, an antique clock, and her purse and wallet. Additionally, the intruders took four pistols, coins stored in a Dristan bottle, a watch and dinner ring, cash including a bank book containing a $2 bill, and part of a roll of Scott paper towels with a specific design on it.
It was apparently a restless night in Rosedale. In the early morning hours of August 28th, Tollie Sterling, who lives in close proximity to Washington's house, had been unable to sleep, so at 3:00 a.m. he went to a "Mr. Quick" convenience store for a cup of coffee. After finishing a second cup, he saw three black males break and run from the direction of Washington's house. One of these men had something in his hands and was wearing a straw hat. Sterling reported to Officer Williams that he had seen the one with the straw hat earlier that night at "Mr. Quick." Officer Williams at that point remembered that he also had seen Jerry Cleveland earlier that morning at the same Mr. Quick store, wearing a straw hat. Officer Williams recalled seeing the appellants standing behind an ice box in the parking lot at the same time.
Officer Williams immediately began searching for Jerry Cleveland. Cleveland was found at appellant Johnny Wright's residence at about 5:00 a.m. Appellant Joe Wright was also there. Cleveland admitted to Officer Williams that he and his half brothers, the Wrights, had burglarized Mrs. Washington's house and told them where her property had been hidden. The antique clock was found near a railroad track some 200 yards from Mrs. Washington's house. Three pistol were found at Cleveland's girlfriend's house in a paper sack. At this point Cleveland, one Willie Beatie, and appellants were arrested. They were delivered to Deputy Moorhead, who took their personal effects for safekeeping. A $2 bill was taken from appellant Johnny Wright at that time.
Officer Spencer Arbuckle of the Rosedale Police Department was present when Cleveland, Beatie and appellants were processed. He testified that five $1 bills and some white paper towels with a design were found on appellant Joe Wright. These paper towels were later identified as of the same type as those taken from the Washington house. Mrs. Washington later identified the $2 bill as hers.
One witness identified the appellant Joe Wright and Jerry Cleveland as having been seen by him running from the direction of Mrs. Washington's house as he was leaving his girlfriend's house about 1:30 a.m. Cleveland's girlfriend testified that he had come by her house early the morning of August 28th. He left and came back with appellant Joe Wright with him. She testified at the time Cleveland was wearing a straw hat.
Jerry Cleveland, who testified for the State, said he and his accomplices thought Mrs. Washington's house was
vacant. At approximately 10:30 p.m. they entered the house and found Mrs. Washington asleep. They took a TV and two fans. Later, between 11:30 p.m. and 12:00 a.m., Cleveland and appellant Joe Wright went back to Washington's house and this time took the pistols. They went to Cleveland's girlfriend's house where Cleveland hid the pistol unbeknownst to his girlfriend. Having successfully entered and left Washington's house two times, Cleveland, accompanied by both appellants, Joe and Johnny Wright, went back to Mrs. Washington's house a third time at approximately 1:30 a.m. This time they found ...