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Benish v. State

January 26, 1999

GERALD BENISH APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE



The opinion of the court was delivered by: Bridges, C.j.

DATE OF JUDGMENT: 05/14/97

TRIAL JUDGE: HON. C.E. MORGAN III

COURT FROM WHICH APPEALED: CARROLL COUNTY CIRCUIT COURT

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: JUDGMENT AND SENTENCE: CRIME OF BUILDING BURGLARY: SENTENCED TO SERVE A TERM OF 7 YRS WITH THE MDOC WITHOUT THE POSSIBILITY OF PAROLE OR PROBATION; PAY FINE OF $1,500.00 TOGETHER WITH ALL COSTS, FEES AND ASSESSMENTS WITHIN 2 YRS OF RELEASE

AFFIRMED

EN BANC

¶1. Gerald Benish was convicted on the charge of burglary of a building as a habitual offender in the Circuit Court of Carroll County, Mississippi, Second Judicial District. He has appealed to this Court and presents three issues for our consideration which he claims warrant a reversal of his conviction. We disagree and affirm.

THE FACTS

¶2. On Sunday, September 15, 1996, Gerald Benish and Barry and David Nix were at the Pepper Inn, a bar in Carroll County. At approximately 6:00 p.m., Mildred McKee, owner of the Pepper Inn, informed the men that she was closing the establishment at that time. According to the prosecution, Benish resisted leaving the establishment and continued playing a poker machine. McKee's assistant, Philip Ross, then unplugged Benish's poker machine. Benish replugged the machine and continued playing until McKee gave him $20 dollars.

¶3. After closing the Pepper Inn, McKee and Ross left with Benish and Barry and David Nix standing outside the establishment. According to Barry and David, after McKee and Ross left, Benish opened the glass door and kicked in the wooden door to the Pepper Inn. Benish then talked about a money bag inside the Pepper Inn. At approximately 6:45 p.m., Barry and David left the Pepper Inn, indicating that they did not want to take part in Benish's activities. Benish's mother testified that later that evening she picked him up alone on Highway 51.

¶4. McKee and Ross returned to the Pepper Inn at 1:30 a.m. the next morning, and discovered the door standing open. McKee discovered that the business had been vandalized and reported missing $30-$40 dollars, 72 cans of beer, and her .380 caliber pistol. Deputy Robert Anderson of the Carroll County Sheriff Department inspected the Pepper Inn and completed a report.

¶5. On September 20, 1996, Benish was arrested for burglary of a building, after Barry and David Nix gave statements to the Carroll County Sheriff Department regarding the incident at the Pepper Inn.

ΒΆ6. On May 12, 1997, the day before trial, Benish moved for a motion for mental examination. The court refused to grant the motion for mental examination. At trial, on May 13, 1997, after the State rested its case, Benish moved for a directed verdict, which motion was denied by the court. The jury, after deliberation, returned a guilty verdict and the court sentenced Benish to seven years ...


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