The opinion of the court was delivered by: Diaz, J.
DATE OF JUDGMENT: 11/12/97
TRIAL JUDGE: HON. JOHN M. MONTGOMERY
COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: EMBEZZLEMENT: SENTENCED TO SERVE A TERM OF 6 YRS IN THE MDOC, PAY RESTITUTION OF $251, & PAY A FINE OF $1,000; SENTENCE IS SUSPENDED FOR 6 YRS & IS PLACED ON PROBATION FOR 5 YRS;
DISPOSITION: REVERSED AND REMANDED -04/06/99
¶1. Lonnie Little appeals the decision of the Lowndes County Circuit Court convicting him of embezzlement. Little raises the following issues on appeal: (1) whether the trial court erred in accepting a guilty verdict from the jury when exculpatory evidence was withheld from the defense, (2) whether the trial court erred in overruling the amended motion for a new trial, or in the alternative, a judgment of acquittal which specifically addressed newly discovered evidence, and (3) whether the trial court erred in overruling the amended motion for new trial, which questioned the State's failure to exercise due diligence in complying with Uniform Circuit and County Court Rule 9.04 (A). Finding these assignments of error meritorious, we reverse and remand for a new trial consistent with this opinion.
¶2. Lonnie Little was indicted for embezzlement by the Lowndes County grand jury. After a trial in May of 1997, he was convicted and sentenced to serve six years in the Mississippi Department of Corrections, and to pay restitution in the amount of $251, and pay a fine of $1000. However, that sentence was suspended, and Little was placed on probation under the supervision of the Mississippi Department of Corrections for a period of five years.
¶3. Newell Paper Company is a wholesale paper and janitorial supply company located in Lowndes County, Mississippi. It has twenty employees. At trial, the State alleged that Little embezzled $96,000 in cash from Newell before October 30, 1995. James Thompson was the president of Newell when Little was the operations manager. Little's duties included checking the tickets and the cash coming in from the delivery people. Most of the sales to Newell's customers were cash on delivery (COD) sales. The money collected by the drivers was turned over to Little, often on a daily basis.
¶4. Nine witnesses, including Thompson testified for the State during its case-in-chief. Thompson testified that a physical inventory conducted in November of 1994, revealed a shortage of greater that $100,000. An internal investigation and an audit were conducted. Thompson testified that this audit was only conducted on cash money and that no checks were involved. Newell is a branch of the Jackson Paper Company. Robert Gathings, chief financial officer of Jackson Paper, testified that the company had not suffered an inventory shortage, but a cash shortage. Gathings testified that $97,000 was missing which was the total of all the missing invoice tickets.
¶5. Becky Honeycutt, the bookkeeper for Newell, testified that Little, to the exclusion of all others, handled the COD money. Honeycutt testified that at the time of the investigation she did not know how to delete tickets from the computer.
¶6. Mark Jones, the customer service representative at Newell, was supervised by Little. He stated that Little handled all of the COD money. Furthermore, Jones testified that ...