Ledbetter v. State

233 So. 2d 782, 1970 Miss. LEXIS 1670
CourtMississippi Supreme Court
DecidedMarch 23, 1970
DocketNo. 45772
StatusPublished
Cited by3 cases

This text of 233 So. 2d 782 (Ledbetter 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
Ledbetter v. State, 233 So. 2d 782, 1970 Miss. LEXIS 1670 (Mich. 1970).

Opinion

BRADY, Justice:

This is an appeal from the Circuit Court of Harrison County, Mississippi, wherein the appellant was convicted of burglary and larceny of the B. & M. Wine Cellar in Gulfport, Mississippi, and was sentenced to serve a term of three years in the Mississippi State Penitentiary. From this judgment this appeal is taken.

The appellant, Sam Ledbetter, was indicted along with three accomplices for the burglary of thirty-one cases of assorted whiskies and wines from the B. & M. Wine Cellar on the morning of September 22, 1968, having a value of between $900 and $1500.

The record discloses, along with the testimony of two accomplices, Thomas Strangi, Jr., and Walter John Brois, that they with one Larry Maricich went to the liquor store known as Sam’s Package Store, owned by the appellant, about 10:00 P.M. on September 21, 1968; that they rode with the appellant in his Volkswagen bus from the appellant’s liquor store to the B. & M. Wine Cellar and after driving around the wine cellar they drove to the home of the appellant. Thomas Strangi, Jr. and Walter John Brois testified that the three of them then took the appellant’s Volkswagen and drove back to the B. & M. Wine Cellar. Brois and Maricich got out and Thomas Strangi, Jr. then drove the bus around the neighborhood watching, while the other two broke into the B. & M. Wine Cellar by means of prying open the back door. They then removed thirty-one cases of assorted wines and whiskies, stacking it behind the B. & M. Wine Cellar.

The record further discloses that Strangi stopped when signaled to do so and then all three loaded the wine and whiskey into the appellant’s Volkswagen bus and carried it to the appellant’s house. The three men unloaded the wine and whiskey from the bus and placed it in the appellant’s home, where it was hidden in a washing machine, a cedar chest and a closet. Fearing that his fingerprints might be detected on the broken back door, it appears Maricich returned to the B. & M. Wine Cellar and set fire to the door seeking to burn it down.

Detective John Barrett, Captain of Detectives with the Gulfport Police Department, investigated the burglary of the B. & M. Wine Cellar. He testified that a “permission to search” had been signed by the appellant and under this authorization the appellant’s residence was searched. During this search it was discovered that loose bottles of whiskey and wine were hidden in the tub of a washing machine and covered with clothes, in a cedar chest and also covered with clothes, and stored in a closet in unmarked cases; however, none of the [784]*784whiskey was confiscated at the time of this search. A second “permission to search” was subsequently obtained from the appellant and before the appellant signed the second “permission to search” Detective Barrett thoroughly advised him of all of his constitutional rights, including' the right not to have his premises searched. As a result of the second search two hundred and forty-four assorted bottles of half-pints, pints, fifths and gallons of wine and liquor were seized.

Detective Lester Thompson of the Biloxi Police Department testified that the appellant was asked to come down to the police station as a result of the written statement taken from Walter Brois and that when the appellant came to the police station he was told of the charges against him and was informed fully of his constitutional rights by reading to him the requisite rights as set out in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966). The appellant was then asked if he understood everything and he replied, “Yes, sir.” He was asked to sign a “permission to search” which he first refused to do, but after being told of the procedure for getting a search warrant and that one would be obtained, he then agreed to and did sign the first “permission to search.” The record clearly shows that the appellant was present at his home at all times during both searches.

Insofar as knowing Thomas Strangi, the appellant testified, “I have never seen that boy in my life.” He denied knowing Walter Brois. He denied that Strangi, Brois and Maricich came to his place of business or to his home in his Volkswagen bus on the night in question. He admitted that he knew Larry Maricich; that Maricich came to his place of business about 4:00 P.M. asking to borrow the Volkswagen. He agreed Maricich could do so and that Mar-icich could come by his store around 10:00 P.M. and take him home. He testified Maricich did so and he loaned his Volkswagen to Maricich who drove off.

Appellant further testified that the whiskey and wines confiscated under the second search were the remnants of $10,000 worth of illegal whiskey which he still had in stock from prohibition days of the State of Mississippi. He testified he had owned this liquor for some two and a half years, and that he sold some of it from his home to certain customers on Sundays.

The factual issues were submitted to the jury, together with uncontested instructions, and the jury returned a verdict of guilty. The appellant was sentenced to serve a term of three years in the Mississippi State Penitentiary. From this verdict this appeal is taken.

Appellant assigns five errors, two of which relate to the permitting of photographs of the burned place of business and of the whiskey cartons and bottles of whiskey to be introduced in evidence. Appellant urges that this constitutes reversible error and cites the case of LeBarron v. State, 107 Miss. 663, 65 So. 648 (1914), as authority for his contention. We note that in the LeBarron case we quoted from Jones, Commentaries on Evidence, volume 3, section 581 (1908), as follows:

It is a constant practice to receive as evidence pictures and drawings of objects which cannot be brought into court, after these have been proved to be accurate representations of the subject. (107 Miss, at 677, 65 So. at 649.)

It would be impractical if not impossible to bring the back wall of the B. & M. Wine Cellar, including the burned door, to exhibit to the jury what the officers found when they investigated the burglarized premises. The dislocated cement blocks, the broken and scarred door, and the smoked door transom, as well as the washing machine filled with bottles of whiskey, the large cedar chest and the built-in closet with whiskey stored therein, all fall within the rationale in the quotation from Le-Barron v. State, supra.

[785]*785In the case of Willette v. State, 224 Miss. 829, 80 So.2d 836 (1955), we pointed out that photographs have been received for the purpose of describing and identifying premises which were the scene of the crime and they need not show all of the premises if they show the material part. In the case at bar all of the photographs introduced were an accurate and fair representation of the items which they portrayed at the time they were taken. These photographs were an aid to the jury in comprehending the testimony of all witnesses. The different locks on the door of the B. & M. Wine Cellar which had been broken were disclosed by the photographs. How the forceful breaking and entering of the store was accomplished is revealed and the pictures show the condition which existed at the scene when the officers arrived. Certainly the photographs of the whiskey as it was secreted and hidden in the various parts of appellant’s home were admissible in evidence. It should be noted that we held in Willette v. State,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bennett v. State
933 So. 2d 930 (Mississippi Supreme Court, 2006)
Devin A. Bennett v. State of Mississippi
Mississippi Supreme Court, 2003

Cite This Page — Counsel Stack

Bluebook (online)
233 So. 2d 782, 1970 Miss. LEXIS 1670, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ledbetter-v-state-miss-1970.