BEFORE HAWKINS, P.J., SULLIVAN AND BLASS, JJ.
SULLIVAN, JUSTICE, FOR THE COURT:
Shelly Myles, a Belzoni, Mississippi, businessman had approximately $17,000.00 in his truck on the night of March 28-29, 1986, in Belzoni, Mississippi. It was his practice to store money in his truck at night as he thought the truck would not be suspected as a depository. On this occasion the" hide in plain sight "theory failed to work.
At approximately 4:00 a.m. on the morning of March 29, 1986, Myles went outside and found that his truck had been burglarized. The vent window was broken out on the driver's side and all of the money was gone with the exception of some loose change. Myles called the Belzoni Police Department and Officer Hughes arrived on the scene at approximately 4:30 a.m.
There were no eyewitnesses nor was there any direct evidence linking anyone to the burglary of the truck.
At Sampson Smith's trial, Mitchell Collins testified that at approximately 1:00 a.m. on the morning of the robbery he saw Smith running from an alley and that Smith had a bag" tucked "under his arm. Collins further testified that Myles lived in the neighborhood where he saw Smith. According to Collins, he told
Belzoni Police about Smith at 1:30 a.m. (before the robbery was discovered) and he further said that he also told the Belzoni Police at 4:15 a.m., he saw one S.H. Brown and another guy, later identified as Jack Rabbit, coming out of the same alley.
Jacqueline Sanders testified that she and her brother were driving Smith around and Smith told her that he had saved over Sixteen Thousand Dollars ($16,000.00). She claims that the defendant also told her that if she would put her brother out of the car, he would show her the money, which she did. She dropped her brother off and then drove to Ladybird Street and put Smith out. Smith met her five (5) minutes later on Church Street and he was carrying a brown bag containing money. According to Jacqueline Sanders, the couple then drove to the Indianola Greyhound Bus station to use the phone. While there Sanders claims to have counted up to $10,000.00 in denominations of one, five, ten and twenty dollar bills.
Sanders admitted that when she found out that her brother was a suspect in the burglary of Myles' truck, she approached Myles and told him that she thought that Smith had burglarized his truck. She told this same story to Officer Lewis of the Belzoni Police Department and agreed to assist in Smith's arrest by getting Smith to ride with her to Jackson. While on this trip to Jackson, Sanders testified that she and Smith stopped at a laundromat and Smith got some money from his brothers. Later they were pulled over and Smith was arrested.
Officer Cardell Hughes testified that when he stopped Sanders' vehicle, there was a brown paper bag containing money found in the car. Chief Jones testified that the bag contained $240.00. and that an additional $206.00 was discovered in Smith's billfold. Since Smith lived with his mother, Officer Hughes testified that they secured her permission to search her house, and there found a footlocker which contained $2600.00.
Belzoni Police Chief Jones was allowed to testify over objection that Smith had $240.00 dollars on the floor of the car when he was arrested and $206.00 in his billfold. Chief Jones further testified that the money in the footlocker totaled $2,615.00.
Smith moved for a directed verdict and that motion was overruled.
In his defense Smith produced two alibi witnesses. Henry Lee Waller testified that Smith was shooting dice at Waller's club from 9:00 p.m. until 4:00 a.m. on the night of the robbery. Albert Smith testified that on the night of the robbery, he saw Sampson Smith around 11:30 p.m. at Waller's club and that they
shot dice until around 3:30 a.m. and that Smith was the winner that night. Albert testified that he and Sampson Smith went to Red's Cafe and stayed there until around 4:30 a.m. Albert is Sampson's cousin.
The defendant testified in his own defense that his brother gave him $225.00 to buy some marijuana in Jackson. He further stated that the $200.00 found in his wallet were his winnings from shooting dice and that the $2,600.00 found in his footlocker were savings to buy a car. He claimed that the money came from work and his gambling winnings. The defendant denied breaking into Shelly Myles' truck.
The jury found Smith guilty and he was sentenced by the trial court to serve five (5) years in the custody of the Mississippi Department of Correction.
DID THE TRIAL COURT ERR IN FAILING TO GRANT A DIRECTED VERDICT TO THE DEFENDANT OR A PEREMPTORY INSTRUCTION ON THE ...