Bennett v. State

374 So. 2d 803, 1979 Miss. LEXIS 2361
CourtMississippi Supreme Court
DecidedAugust 29, 1979
DocketNo. 51387
StatusPublished
Cited by4 cases

This text of 374 So. 2d 803 (Bennett v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bennett v. State, 374 So. 2d 803, 1979 Miss. LEXIS 2361 (Mich. 1979).

Opinion

PATTERSON, Chief Justice,

for the Court:

Clarence Bennett, Jr. was convicted in the Circuit Court of the Second Judicial District of Jones County for the murder of Kenneth M. Marshall. He was sentenced to life imprisonment and presently appeals, assigning as error that (1) the evidence does not support the jury’s verdict, (2) the court erred in admitting testimony implying he had committed a separate offense and (3) the court erred in submitting the case to the jury without any of the state’s instructions.

On August 8, 1978, at about 2:00 a. m., Eugene Brown and Rosita Townsend were awaiting a cab in a well-lighted area at the corner of Hickory and Pine Streets in the city of Laurel when Bennett, the appellant, came into view walking in a westerly direction on Hickory Street toward an apartment complex in which it was later determined that Marshall resided. Brown recognized Bennett, an acquaintance, and identified him at trial. He testified Bennett was carrying a single barrel shotgun as he continued. to walk westward. Brown’s companion, Rosita Townsend, although not acquainted with Bennett, testified she saw the man walking westerly on Hickory Street with something in his hand. Ten or fifteen minutes after Bennett had passed, both Brown and Townsend heard a shotgun fire in the vicinity of the apartment and shortly thereafter again observed Bennett coming from the direction of the apartment and walking hastily north on Pine Street. Both testified he was carrying a shotgun as he hurried northward along the street. Brown also testified that he observed no other person in the vicinity at the times he saw Bennett.

Later in the morning, about 8:30, Helen McGill, Marshall’s landlady, discovered Marshall’s body in the apartment. She notified the police, and investigating officers found that Marshall had been shot. They also discovered a considerable amount of marijuana in Marshall’s room. An autopsy was performed which revealed the cause of death to have been a shotgun wound in the neck. A firearms expert testified he could not positively link the shotgun pellets and wadding removed from the deceased to the shotgun belonging to the appellant although he did express the opinion they were compatible with the appellant’s gun.

The appellant was taken into custody by Officer Hare of the Laurel Police Department. Through the use of an informant, police learned of a shotgun hidden under an abandoned automobile near the northeast [805]*805side of Pine Street four to five blocks north of the intersection of Hickory and Pine Streets. On August 21, 1978, Police Detective Shanks, using the information gleaned from the informant, discovered a 16-gauge single barrel shotgun containing one spent shell under the abandoned automobile. The gun was identified as belonging to Bennett, as will be hereinafter related.

While in jail, Bennett conversed with his mother in the presence of Jerry Campbell, a cellmate. Campbell testified that Bennett told his mother to “put it [the gun] behind the front seat of the truck or put it up under the mattress of his bed and wrap it up the way he had it before in a blanket.” The state offered no physical evidence such as fingerprints to place Bennett at or near Marshall’s apartment on the morning of August 8, but it did adduce circumstantial evidence strongly suggesting appellant’s guilt. The state offered witnesses who testified the appellant and Marshall had a verbal altercation concerning marijuana which Marshall was unwilling to sell to Bennett on credit. Officer Shanks testified that Bennett admitted arguing with Marshall about marijuana at a local nightspot around midnight preceding the early morning homicide. Clarence McLelland testified that he lived in an apartment behind the deceased and heard Marshall arguing with someone about 2:00 or 2:15 a. m. although he did not hear gunfire. John L. Walker testified, without objection, that the police came to his house on August 8 and asked him whether he had taken the appellant home on the night of the homicide as Bennett had related to them. Walker testified that Bennett’s statement was not true, because he had not carried him home.

At the conclusion of the evidence the court denied appellant’s motion for a peremptory instruction, and counsel for the state and the defendant discussed various instructions with the court. The state eventually withdrew the two instructions which had been proffered, because they were cumulative with the instructions requested by the defendant. In this circumstance, the court instructed the jury on the burden of proof, the essential elements of the offense and the need for a unanimous verdict.

Bennett first argues the evidence does not support the jury’s verdict inasmuch as it is circumstantial. The state agrees the verdict rests upon circumstantial evidence, but contends it is sufficiently strong to sustain the verdict. We agree with the state’s contention, because its evidence establishes an argument between Bennett and Marshall over the sale of marijuana shortly (within two hours) before the shot was fired, which we believe sufficient to establish motive when consideration is given to the other circumstances. They are that Bennett was seen walking in the direction of Marshall’s apartment with gun in hand shortly (ten or fifteen minutes) before Brown and Townsend heard a shot. Immediately afterward these same witnesses saw Bennett come from the direction of the apartments and walk hurriedly northward along Pine Street with a gun in hand. The gun was later found under an abandoned automobile alongside Pine Street and was later identified as belonging to Bennett. Additionally, Bennett requested his mother to retrieve the gun and conceal it.

Of course, no precise rule can be formulated to simplify the question of what constitutes believable circumstantial evidence sufficient to support a verdict. Of necessity it must be approached from the factual circumstances of each case. We are of the opinion this record reveals circumstantial evidence sufficient to support the jury verdict; in fact, we think it quite strong. We have stated many times that a conviction on circumstantial evidence is sufficient to support a verdict so long as the evidence can be said to prove guilt beyond a reasonable doubt to the exclusion of every other reasonable hypothesis. Fortenberry v. State, 216 Miss. 243, 62 So.2d 325 (1953). It is equally well established that a fanciful, whimsical, or otherwise unreasonable hypothesis of innocence does not require reversal. Baker v. State, 317 So.2d 901 (Miss.1975). Numerous cases illustrate the tendency of this Court to leave factual issues in [806]*806a “circumstantial evidence case” for the jury’s resolution. Bonnett v. State, 317 So.2d 907 (Miss.1975), Carter v. State, 310 So.2d 271 (Miss.1975), and Burge v. State, 282 So.2d 223 (Miss.1973).

The appellant contends that Shore v. State, 287 So.2d 766 (Miss.1974), supports his view of evidential insufficiency. Shore, supra, was reversed under circumstantial facts entirely different from the present, thus distinguishing it. As mentioned, the affirmance or reversal of a jury verdict depends upon the facts presented to that jury. The facts must be reviewed on an ad hoc basis and although comparison is made to other cases, eventually the Court must look to the precise facts presented to the particular jury for its determination. We have done so in this case and are of the opinion the evidence, albeit circumstantial, was sufficient to support the jury’s verdict.1

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Bluebook (online)
374 So. 2d 803, 1979 Miss. LEXIS 2361, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bennett-v-state-miss-1979.