Cross References —

Rights of accused in criminal prosecution, see Miss Const Art. 3, § 26.

Acquisition of control shares as not constituting control share acquisition when made pursuant to laws of descent and distribution under Section91-1-1 et seq., see §79-27-5.

Relief under Mississippi Uniform Post-Conviction Collateral Relief Act, see §99-39-1 et seq.

RESEARCH REFERENCES

Practice References.

Adams, James A. and Blinka, Daniel D., Prosecutor’s Manual for Arrest, Search and Seizure (LexisNexis).

Aldisert, Ruggero J., Winning on Appeal: Better Briefs and Oral Argument, Second Edition (NITA).

Baum, David B., Art of Advocacy Series: Preparation of the Case (Matthew Bender).

Blinka, Daniel D., and Imwinkelried, Edward J., Criminal Evidentiary Foundations (Michie).

Carter, Linda E., Kreitzberg, Ellen, and Howe, Scott, Understanding Capital Punishment Law, Third Edition (LexisNexis).

Cohen, Green and Slavin, Apprehending and Prosecuting the Drunk Driver: A Manual for Police and Prosecution (Matthew Bender).

Dodd and Pozner, Cross-Examination: Science and Techniques, Second Edition (LexisNexis ).

Doyle, Loftus, and Dysart, Eyewitness Testimony: Civil and Criminal, Fifth Edition (LexisNexis).

Dressler, Joshua, and Michaels, Alan C., Understanding Criminal Procedure: Volume One, Investigation, Sixth Edition (LexisNexis).

Dressler, Joshua, and Michaels, Alan C., Understanding Criminal Procedure: Volume Two, Adjudication, Fourth Edition (LexisNexis).

Erwin, Cohen, Slavin, Essen, Defense of Drunk Driving Cases: Criminal - Civil (Matthew Bender).

George, Jr., B. James, Tymkovich, Timothy M., Coats, Nathan B., and Erickson, William H., United States Supreme Court Cases and Comments: Criminal Law and Procedure (Matthew Bender).

Gershman, Bennett L., Criminal Trial Error and Misconduct, Second Edition (Matthew Bender).

Gilligan, Lederer, Giannelli, and Imwinkelried, Courtroom Criminal Evidence, Fifth Edition (Michie).

Hall, John Wesley, Search and Seizure, Fifth Edition (Michie).

Habush, Robert L., Art of Advocacy Series: Cross Examination of Non-Medical Experts (Matthew Bender).

Henning, Peter J., and Radek, Lee J., Prosecution and Defense of Public Corruption (Matthew Bender).

Houts, Marshall, Art of Advocacy Series: Cross Examination of Medical Experts (Matthew Bender).

Imwinkelried, Edward J., The Methods of Attacking Scientific Evidence, Fifth Edition (LexisNexis).

Imwinkelried, Edward J. and Giannelli, Paul C., Scientific Evidence, Fifth Edition (Matthew Bender).

Marcus, Paul, Prosecution and Defense of Criminal Conspiracy Cases (Matthew Bender).

Mauriello, P. Thomas, Criminal Investigation Handbook (Matthew Bender).

Miltz, Arthur Ian, Art of Advocacy Series: Discovery (Matthew Bender).

Newton, Brent E., Practical Criminal Procedure: A Constitutional Manual, Second Edition (NITA).

Ordover, Abraham P., Criminal Law Advocacy (Matthew Bender).

Perlin, Michael L., Mental Disability Law: Civil and Criminal, Second Edition (LexisNexis).

Perrin, L. Timothy, Chase, Carol A., and Caldwell, H. Mitchell, The Art and Science of Trial Advocacy, Second Edition (LexisNexis).

Podgor, Ellen S., and Clark, Roger S., Understanding International Criminal Law, Third Edition (LexisNexis).

Sacks, Garfield and Garfield, Criminal Defense Techniques (Matthew Bender Elite Products).

Scarlett, Randall H., Art of Advocacy Series: Summation (Matthew Bender).

Schoenberg, Ronald L., Criminal Law Deskbook (Matthew Bender).

Shapiro, Jay, Criminal Practice Handbook, Fourth Edition (Michie).

Siffert and Rakoff, Business Crime: Criminal Liability of the Business Community (Matthew Bender).

Strader, J. Kelly, Understanding White Collar Crime, Third Edition (Matthew Bender).

Wagner, Jr., Ward, Art of Advocacy Series: Jury Selection (Matthew Bender).

Wecht, Cyril H., Forensic Sciences (Matthew Bender).

Criminal Constitutional Law (Matthew Bender).

Criminal Law Deskbook (Matthew Bender).

Defense of Narcotics Cases (LexisNexis Law Enforcement).

Defense of Speeding, Reckless Driving and Vehicular Homicide (Matthew Bender).

Domestic Violence: Law, Policy and Practice (LexisNexis).

Fifth Circuit Pattern Jury Instructions - Criminal (Matthew Bender).

LexisNexis CD - Criminal Law for Solo and Small Law Practitioners (LexisNexis).

Mississippi Criminal and Traffic Manual (Michie).

Pretrial Motions in Criminal Prosecutions 4th Edition (LexisNexis).

The Prosecution and Defense of Sex Crimes (Matthew Bender).

JUDICIAL DECISIONS

1. In general.

Suicide is a common-law offense. Nicholson ex rel. Gollott v. State, 672 So. 2d 744, 1996 Miss. LEXIS 146 (Miss. 1996).

The right is reserved to the state to prosecute crimes which were indictable at common law even though they may not be denominated as such or be provided for by the statute of the state. State ex rel. Maples v. Quinn, 217 Miss. 567, 64 So. 2d 711, 1953 Miss. LEXIS 464 (Miss. 1953).

OPINIONS OF THE ATTORNEY GENERAL

Misprison of a felony is not an offense that may be prosecuted in the State of Mississippi. Mitchell, January 23, 1998, A.G. Op. #98-0019.

RESEARCH REFERENCES

ALR.

Libel and slander: necessity of expert testimony to establish negligence of media defendant in defamation action by private individual. 37 A.L.R.4th 987.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected section references in this section. The references to “Section 97-3-95(c)” were changed to “Section 97-3-95(1)(c) or (d).” The Joint Committee ratified the correction at its May 16, 2002, meeting, and the section has been reprinted in the supplement to reflect the corrected language.

Section 3 of Chapter 439, Laws of 2012, effective July 1, 2012 (approved April 19, 2012), amended this section. Section 1 of Chapter 455, Laws of 2012, effective July 1, 2012 (approved April 23, 2012) also amended this section. As set out above, this section reflects the language of both amendments, pursuant to Section 1-1-109 which gives the Joint Legislative Committee on Compilation, Revision and Publication of Legislation authority to integrate amendments so that all versions of the same code section enacted within the same legislative session may become effective. The Joint Committee on Compilation, Revision and Publication of Legislation ratified the integration of these amendments as consistent with the legislative intent at the August 16, 2012, meeting of the Committee.

Section 18 of ch. 543, Laws of 2013, effective from and after July 1, 2013 (approved April 25, 2013, 2:55 p.m.), amended this section. Section 2 of ch. 565, Laws of 2013, effective July 1, 2013 (approved April 25, 2013, 4:45 p.m.), amended this section. As set out above, this section reflects the language of Section 2 of ch. 565, Laws of 2013, pursuant to Section 1-3-79, which provides that whenever the same section of law is amended by different bills during the same legislative session, and the effective dates of the amendments are the same, the amendment with the latest approval date supersedes all other amendments to the same section approved on an earlier date.

Amendment Notes —

The 1998 amendment, in the first paragraph, inserted “aggravated assault, kidnapping,” following “manslaughter” and “or by fraud” following “false pretenses”.

The 2003 amendment deleted the former last paragraph which read: “Any prosecutions for felonious abuse or battery of a child as described in Section 97-5-39, touching or handling a child for lustful purposes as described in Section 97-5-23, sexual battery of a child as described in Section 97-3-95(1)(c) or (d) or exploitation of children as described in Section 97-5-33, shall be commenced on or before the child’s twenty-first birthday.”

The 2004 amendment substituted “Section 97-3-95(1)(c), (d) or (2)” for “Section 97-3-95(1)(c) or (d).”

The 2008 amendment rewrote the section to revise the statute of limitation for conspiracy and assistance program fraud.

The 2010 amendment, added the third sentence.

The first 2012 amendment (ch. 439), in the second sentence, deleted “or” following “Section 97-1-1,” and inserted “or for felonious abuse of vulnerable persons, as described in Sections 43-47-18 and 43-47-19”; and made minor stylistic changes.

The second 2012 amendment (ch. 455) in the second sentence, deleted “or” following “Section 97-1-1,” and inserted “or for felonious abuse of vulnerable persons, as described in Sections 43-47-18 and 43-47-19.”

The first 2013 amendment (ch. 543), inserted “aggravated domestic violence” preceding “kidnapping, arson, burglary”, and inserted “promoting prostitution . . . or 97-3-54.3” at the end of the first sentence; and made a minor stylistic change.

The second 2013 amendment (ch. 565), inserted “aggravated domestic violence” preceding “kidnapping, arson, burglary” added “promoting prostitution under Section 97-29-51(2) when the person . . . or Section 93-3-54.3” at the end of the first sentence.

Cross References —

Absence from state as toll of statute of limitations in civil actions, see §15-1-63.

Applicability of this section to violations of law or regulations relating to wild animals, birds, or fish, see §49-5-41.

Commencement of prosecution, see §99-1-7.

Additional year allowed for reindictment in certain cases, see §99-1-9.

JUDICIAL DECISIONS

1. Generally.

2. Application to continuing offenses.

3. Pleading.

4. Miscellaneous.

1. Generally.

Jury could have found that defendant recorded the video of the minor victim on October 28, 2011, well within two years of his arrest date of November 4, 2011, and thus the trial court did not err in denying defendant’s motion for a directed verdict after the State’s case-in-chief for filming a person in violation of their expectation of privacy; the creation date of the video by defendant in his bathroom was October 28, 2011, and the victim testified that she did not know of any video ever being made. Donaldson v. State, 262 So.3d 1135, 2018 Miss. App. LEXIS 303 (Miss. Ct. App. 2018), cert. denied, 260 So.3d 800, 2019 Miss. LEXIS 59 (Miss. 2019).

Court of Appeals properly affirmed defendant’s conviction and sentence for Medicaid fraud because the statutory venue provisions were limited to civil cases, defendant’s trial was in the county “where the offense was committed,” as provided by the state constitution, and Medicaid fraud was exempt from the two-year statute of limitations inasmuch as it was a species of or within the definition of “obtaining money or property under false pretenses or by fraud.” Azomani v. State, 222 So.3d 282, 2017 Miss. LEXIS 220 (Miss. 2017).

Defendant’s prosecution for statutory rape, under Miss. Code Ann. §97-3-65, was not barred by the two-year statute of limitations in Miss. Code Ann. §99-1-5 because, although statutory rape was not expressly included in the statute, it was within the definition of rape under Miss. Code Ann. §97-3-68, for purposes of the exceptions to the general two-year statute of limitations. Hernandez v. State, 137 So.3d 889, 2013 Miss. App. LEXIS 793 (Miss. Ct. App. 2013), cert. denied, 139 So.3d 74, 2014 Miss. LEXIS 239 (Miss. 2014).

Entry of an inmate’s guilty plea waived his statute of limitations defense under Miss. Code Ann. §99-1-5. Furthermore, under Miss. Code Ann. §99-1-7, the prosecution against the inmate commenced on the day that he was indicted, only one year after he committed the offense, and tolled the statute of limitations. Edmondson v. State, 17 So.3d 591, 2009 Miss. App. LEXIS 525 (Miss. Ct. App. 2009).

Where defendant was charged with possession of marihuana, the failure of the first grand jury to return a true bill against him did not terminate the prosecution against him. The two-year statute of limitations under Miss. Code Ann. §99-1-5 was not a bar to his prosecution where he was arrested for the offense within two years of the date in which he allegedly committed it. State v. Parkman, 906 So. 2d 888, 2005 Miss. App. LEXIS 402 (Miss. Ct. App. 2005).

Prosecution of defendant for sexual battery commenced, for the purposes of the statute of limitations, when defendant was indicted, 17 months after the date of the alleged offenses; the fact that defendant was tried more than two years after the date of the offenses went only to whether defendant’s speedy trial rights had been violated and not to whether the statute of limitations had run. Agee v. State, 829 So. 2d 726, 2002 Miss. App. LEXIS 573 (Miss. Ct. App. 2002).

The statute of limitations in a criminal case is not jurisdictional but is an affirmative defense that may be waived; thus, where pursuant to an agreement a substituted and amended information is filed which charges a new and different offense, prosecution of which is on its face barred by the applicable statute of limitations, a voluntary plea of guilty by a counseled defendant operates to waive the statute of limitations and forfeit the defendant’s right to raise the matter in a collateral proceeding. Conerly v. State, 607 So. 2d 1153, 1992 Miss. LEXIS 585 (Miss. 1992).

A simple delay between the date of an offense and the date of the indictment is not per se reversible error, particularly when the reason for the delay is for the purpose of concealing the identity of an undercover agent for a reasonable period of time so that he or she may continue to work effectively as an agent. Thus, a defendant was not denied his right to a speedy trial where a 10-month delay from the time of the criminal act to the charge and arrest was caused by the State’s pursuance of a continuing undercover operation. Dedeaux v. State, 519 So. 2d 886, 1988 Miss. LEXIS 48 (Miss. 1988).

In a prosecution for false pretenses, the trial court properly refused to quash the indictment, despite defendant’s contention that the indictment charged only conspiracy, a crime not excepted from the two year statute of limitations, and that the prosecution was thus barred; conspiracy is a complete offense in itself and does not merge with the underlying crime, and the fact that a conspiracy is committed along with the crime does not change the nature of the offense nor lessen exposure to punishment. Furthermore, the prosecution was not time barred even though defendant was charged with being an accessory only, which is a separate crime not excepted from the statute, since an accessory before the fact to an excepted felony is treated as a principal. Harrigill v. State, 381 So. 2d 619, 1980 Miss. LEXIS 1887 (Miss.), cert. denied, 446 U.S. 939, 100 S. Ct. 2159, 64 L. Ed. 2d 792, 1980 U.S. LEXIS 1596 (U.S. 1980).

General two-year statute of limitations sets limits on stale prosecutions. Campbell v. State, 309 So. 2d 172, 1975 Miss. LEXIS 1868 (Miss. 1975).

In a prosecution for the sale of marijuana, defendant was not denied due process because of pre-indictment and pretrial delays between the night of the sale and the date of the indictment, where the delays were for the purpose of concealing the identity of an undercover agent for a reasonable period of time so that he may continue to work effectively and where the indictment was returned within the two-year time limit during which prosecutions may be commenced; the defendant’s right to a speedy trial as regards delay of prosecution could have accrued no earlier than the date of the return of the indictment. Page v. State, 295 So. 2d 279, 1974 Miss. LEXIS 1494 (Miss. 1974).

This section [Code 1942, § 2437] was not applicable in prosecution of a supervisor whose charge of employing a relative to work on the public roads and who instead employed him on his private farm and paid him out of public moneys, and who was prosecuted under Code 1942, § 2123. Blakeney v. State, 228 Miss. 162, 87 So. 2d 472, 1956 Miss. LEXIS 501 (Miss. 1956).

Prosecution for the crime of escaping jail, begun more than two years after the escape, was barred by limitations. Smith v. State, 17 So. 2d 802 (Miss. 1944).

Where two years and forty-two days elapsed from the date the offense of placing an obstruction on a railroad track whereby a train or part thereof might be derailed was committed to the date the prosecution was begun, and the state did not prove nor attempt to prove, nor was there any evidence on which it could be said that defendant was absent from the state any single day except at the time of his arrest, conviction must be reversed and remanded. McCullar v. State, 183 So. 487 (Miss. 1938).

The statute held applicable to bar a prosecution for obtaining food and lodging with intent to defraud a hotel owner. Steele v. State, 121 Miss. 540, 83 So. 725, 1920 Miss. LEXIS 100 (Miss. 1920).

2. Application to continuing offenses.

In prosecution of father for desertion and failure to provide for support and maintenance of child, testimony offered by prosecution and by defendant which covers period of four and one-half years prior to return of indictment is competent, since alleged offense is continuing one, and it is error for court to confine testimony on behalf of defendant to period of two years prior to return of indictment. Williams v. State, 207 Miss. 816, 43 So. 2d 389, 1949 Miss. LEXIS 391 (Miss. 1949), overruled, Lenoir v. State, 237 Miss. 620, 115 So. 2d 731, 1959 Miss. LEXIS 512 (Miss. 1959).

Statute of limitations does not apply to continuous offense where some portion thereof is within period, although another portion thereof is not within period of limitations. Horton v. State, 175 Miss. 687, 166 So. 753, 1936 Miss. LEXIS 36 (Miss. 1936).

Offense of child desertion is a continuing one, so that prosecution therefor was not barred by three-year statute of limitations, where father deserted family more than two years before prosecution was commenced, but never returned. Horton v. State, 175 Miss. 687, 166 So. 753, 1936 Miss. LEXIS 36 (Miss. 1936).

3. Pleading.

Petitioner was properly denied post-conviction relief after he pled guilty to two counts of sexual battery against a child under the age of 14 where his argument that his prosecution was barred by the applicable statute of limitations was barred; petitioner’s plea was voluntarily given and the statute of limitations defense was waived. Laster v. State, 975 So. 2d 240, 2007 Miss. App. LEXIS 6 (Miss. Ct. App. 2007).

Amending the date of the offense from “during the month of July” to “sometime in May or June” was allowed because it was immaterial to the merits of the case and the defense would not be prejudiced by the amendment. Crawford v. State, 754 So. 2d 1211, 2000 Miss. LEXIS 8 (Miss. 2000).

The statute cannot be set up by a demurrer to an indictment, although on its face the prosecution appear to be barred. The defense of limitation can be made by special plea in which case the state can supply the facts if any which take the case out of the statute or the defense can be raised on the evidence under “not guilty.” Thompson v. State, 54 Miss. 740, 1877 Miss. LEXIS 92 (Miss. 1877).

4. Miscellaneous.

Although defendant maintained that the second indictment should have been dismissed because the crimes of burglary and capital murder were both predicated on his commission of an assault, which was subject to a two-year statute of limitations for prosecution, defendant’s argument was without merit as the passage of time would never bar prosecution against any person for the offenses of murder, aggravated assault, or burglary. Clark v. State, 233 So.3d 832, 2017 Miss. App. LEXIS 129 (Miss. Ct. App.), cert. denied, — So.3d —, 2017 Miss. LEXIS 518 (Miss. 2017).

In a Medicaid fraud prosecution, defendant’s statute of limitations issue failed because no statute of limitations applied, as Medicaid fraud met the definition in Miss. Code Ann. §99-1-5 of “obtaining money or property under false pretenses or by fraud.” Azomani v. State, 222 So.3d 343, 2016 Miss. App. LEXIS 510 (Miss. Ct. App. 2016), aff'd on other grounds, 222 So.3d 282, 2017 Miss. LEXIS 220 (Miss. 2017).

State proved one count of video-voyeurism occurred within the statute of limitations because the parties stipulated the count’s video showed defendant possessing a computer defendant bought within the limitations period. Nuckolls v. State, 179 So.3d 1046, 2015 Miss. LEXIS 586 (Miss. 2015).

Even if defendant had timely objected to the indictment alleging the expiration of the statute of limitations for the first two years of the indictment’s time span, the circuit court’s solution would have been to amend the indictment to reflect a time period not in conflict with any alleged statute-of-limitations issues, which was essentially done when defense counsel requested and was granted jury instructions that limited the time span for the offenses to 15 months that were within the statute of limitations. Hines v. State, 126 So.3d 985, 2013 Miss. App. LEXIS 819 (Miss. Ct. App. 2013).

Trial counsel was not ineffective for failing to investigate the State’s delay in presenting the charge to the grand jury because the State had two years in which to indict defendant, and the State did so within one year and twenty-five days of defendant’s arrest. Jackson v. State, 122 So.3d 1220, 2013 Miss. App. LEXIS 127 (Miss. Ct. App.), cert. denied, 123 So.3d 450, 2013 Miss. LEXIS 531 (Miss. 2013).

In a 28 U.S.C.S. § 2254 case in which a pro se state inmate argued that Count IV of the superseding indictment was time barred by the 2 year statute of limitations under Miss. Code Ann. §99-1-5, the Crawford decision did not require an indictment to commence prosecution of a felony charge. While it was true that an indictment was required to prosecute one charged with a felony, Mississippi case law suggested and Miss. Code Ann. §99-1-5 mandated that the process of prosecution commenced prior to indictment; in the present case, the arrest warrants issued on March 21, 2003 and the inmate’s own act of turning himself in to authorities on that same day effectively commenced the prosecution of the crimes for which he would later be indicted. Eason v. King, 2010 U.S. Dist. LEXIS 79238 (S.D. Miss. Aug. 4, 2010).

By pleading guilty, an inmate had waived his constitutional right to a speedy trial. Moreover, delays which were attributable to a defendant did not count toward the 270-day requirement under Miss. Code Ann. §99-17-1, and Miss. Code Ann. §99-1-5 provided that prosecution for an offense was not barred when process could not be served; here, the reason for any delay in sentencing was that there was a significant period of time in which the trial court was unable to serve the inmate with his indictment. Edmondson v. State, 17 So.3d 591, 2009 Miss. App. LEXIS 525 (Miss. Ct. App. 2009).

The state had an unlimited timetable in which to reindict the defendant for aggravated assault after a nolle prosequi was entered concerning the charges in the original indictment, even though the crime at issue was committed before the statute was amended to include the crime of aggravated assault within the list of crimes that are excepted from the general two-year statute of limitation, since the extension of the limitation period in no way altered the definition of the crime with which the defendant was charged. Smoot v. State, 780 So. 2d 660, 2001 Miss. App. LEXIS 8 (Miss. Ct. App. 2001).

Prosecution for fondling under amendment to statute of limitations extending limitation period in effect at time of crime was not ex post facto violation; statute of limitations is procedural and does not come within recognized exception creating substantive right as fondling statute is separate from limitations period statute, defendant’s acts were criminal at time of their commission, and defendant was not subjected to longer punishment by prosecution under lengthier limitations period. Christmas v. State, 700 So. 2d 262, 1997 Miss. LEXIS 246 (Miss. 1997).

A defendant waived and forfeited his right to assert the statute of limitations under this section as a defense to a charge of aggravated assault when he failed to assert it in the lower court and thereafter entered a voluntary and counseled plea of guilty to the charge. Conerly v. State, 607 So. 2d 1153, 1992 Miss. LEXIS 585 (Miss. 1992).

The two-year statute of limitations applies solely to prosecutions and does not operate to recast the status of a defendant as a prior offender so as to affect conviction of one charged as a second offender under statute making it unlawful to possess or sell intoxicating liquors pursuant to indictment wherein previous conviction charged occurred more than two years prior thereto. McGowan v. State, 200 Miss. 270, 25 So. 2d 131, 1946 Miss. LEXIS 290 (Miss. 1946).

OPINIONS OF THE ATTORNEY GENERAL

Obtaining money or property by use of bad check would be excluded from general two-year statute of limitations. Horan, July 10, 1991, A.G. Op. #91-0469.

Fact that defendant is out on bond, in prison or in jail in another state does not prevent commencement of prosecution within two year time frame. Stuart, March 9, 1994, A.G. Op. #93-0829.

A prosecution for fraud in connection with state or federally funded assistance programs under Miss. Code Section 97-19-71 must be commenced within two years from the commission of such offense, but a prosecution under Miss. Code Section 97-7-42 for the fraudulent use of food coupons dispensed by the state welfare department may begin at any time without a time limitation. Taylor, July 18, 1997, A.G. Op. #97-0407.

RESEARCH REFERENCES

ALR.

Conviction of lesser offense, against which statute of limitations has run, where statute has not run against offense with which defendant is charged. 47 A.L.R.2d 887.

When statute of limitations begins to run against criminal prosecution for embezzlement, fraud, false pretenses, or similar crimes. 77 A.L.R.3d 689.

When statute of limitations begins to run on charge of obstructing justice or of conspiring to do so. 77 A.L.R.3d 725.

Finding or return of indictment, or filing of information, as tolling limitation period. 18 A.L.R.4th 1202.

Issuance or service of state-court arrest warrant, summons, citation, or other process as tolling criminal statute of limitations. 71 A.L.R.4th 554.

Waivability of bar of limitations against criminal prosecution. 78 A.L.R.4th 693.

Am. Jur.

21 Am. Jur. 2d, Criminal Law §§ 247 et seq.

CJS.

22 C.J.S., Criminal Law §§ 285 et seq.

JUDICIAL DECISIONS

1. In general.

Defendant was properly denied a new trial because he was not entitled to counsel at the lineup, as at the time of the lineup he was under arrest for a parole violation not for capital murder. Defendant’s right to counsel for capital murder had not yet attached because the warrant for capital murder had not been issued and proceedings for capital murder charges had not begun. Howell v. State, 163 So.3d 240, 2014 Miss. LEXIS 496 (Miss. 2014).

Entry of an inmate’s guilty plea waived his statute of limitations defense under Miss. Code Ann. §99-1-5. Furthermore, under Miss. Code Ann. §99-1-7, the prosecution against the inmate commenced on the day that he was indicted, only one year after he committed the offense, and tolled the statute of limitations. Edmondson v. State, 17 So.3d 591, 2009 Miss. App. LEXIS 525 (Miss. Ct. App. 2009).

Defendant was first arrested (for possession of marihuana), on September 20, 2000, and an arrest warrant charging him with possession of a controlled substance was issued on September 21. Thus, under Miss. Code Ann. §99-1-7 prosecution commenced within the meaning of Miss. Code Ann. §99-1-5 at that time, and the issue was whether the failure of the first grand jury to return a true bill against him terminated the prosecution against him; the appellate court agreed with those jurisdictions which held that in the absence of a statute or court order, the return of a no bill by a grand jury did not terminate the prosecution of the offense which was the subject of the no bill, and therefore, the lack of action against defendant by the first grand jury did not terminate the prosecution against him, and since there was no dispute that he was arrested for the offense within two years of the date in which he allegedly committed it, his prosecution was not time barred. State v. Parkman, 906 So. 2d 888, 2005 Miss. App. LEXIS 402 (Miss. Ct. App. 2005).

Prosecution of defendant for sexual battery commenced, for the purposes of the statute of limitations, when defendant was indicted, 17 months after the date of the alleged offenses; the fact that defendant was tried more than two years after the date of the offenses went only to whether defendant’s speedy trial rights had been violated and not to whether the statute of limitations had run. Agee v. State, 829 So. 2d 726, 2002 Miss. App. LEXIS 573 (Miss. Ct. App. 2002).

Although an indictment is required to prosecute one charged with a felony, for purposes of the statute of limitations, a prosecution can be commenced by the issuance of a warrant or by an arrest. State v. Woodall, 744 So. 2d 747, 1999 Miss. LEXIS 213 (Miss. 1999).

Prosecution had commenced and, therefore, the defendant’s constitutional right to counsel had attached at the time of a line up where an arrest warrant had issued and the defendant was in custody. Livingston v. State, 519 So. 2d 1218, 1988 Miss. LEXIS 47 (Miss. 1988).

Once proceedings against a defendant reaches the accusatory stage, a right of counsel attaches, and, for purposes of the state constitutional right, the advent of the accusatory stage is determined by references to state law, including Mississippi Code §99-1-7 and Rule 1.04, Unif. Crim. R. Civ. Ct. Proc. Page v. State, 495 So. 2d 436, 1986 Miss. LEXIS 2516 (Miss. 1986).

In a criminal prosecution for kidnapping and murder, defendant’s right to counsel had attached since criminal proceedings had been started under §99-1-7. Cannaday v. State, 455 So. 2d 713, 1984 Miss. LEXIS 1753 (Miss. 1984), cert. denied, 469 U.S. 1221, 105 S. Ct. 1209, 84 L. Ed. 2d 351, 1985 U.S. LEXIS 1031 (U.S. 1985), cert. denied, 469 U.S. 1229, 105 S. Ct. 1229, 84 L. Ed. 2d 366, 1985 U.S. LEXIS 1115 (U.S. 1985).

A criminal prosecution is not begun before a justice of the peace by affidavit for, and issuance and execution of, a search warrant without the filing of an affidavit with the justice of the peace to charge the accused with the unlawful possession of intoxicating liquor against the peace and dignity of the state. Ratcliff v. State, 199 Miss. 866, 26 So. 2d 69, 1946 Miss. LEXIS 255 (Miss. 1946).

The crime charged must be shown to have been committed within the period of statutory limitations and after the passage of the particular statute before imposition of a penalty can be prescribed. McLaughlin v. State, 133 Miss. 725, 98 So. 148, 1923 Miss. LEXIS 181 (Miss. 1923).

One charged with embezzlement and arrested and held to bail has had prosecution commenced against him within the meaning of this statute. State v. Hughes, 96 Miss. 581, 51 So. 464, 1910 Miss. LEXIS 180 (Miss. 1910), overruled, Simmons v. State, 568 So. 2d 1192, 1990 Miss. LEXIS 605 (Miss. 1990).

OPINIONS OF THE ATTORNEY GENERAL

Fact that defendant is out on bond, in prison or in jail in another state does not prevent commencement of prosecution within two year time frame. Stuart, March 9, 1994, A.G. Op. #93-0829.

RESEARCH REFERENCES

ALR.

Finding or return of indictment, or filing of information, as tolling limitation period. 18 A.L.R.4th 1202.

Issuance or service of state-court arrest warrant, summons, citation, or other process as tolling criminal statute of limitations. 71 A.L.R.4th 554.

Waivability of bar of limitations against criminal prosecution. 78 A.L.R.4th 693.

Am. Jur.

21 Am. Jur. 2d, Criminal Law §§ 247 et seq.

CJS.

22 C.J.S., Criminal Law §§ 285 et seq.

JUDICIAL DECISIONS

1. In general.

The statute does not apply to limit the time for a reindictment following the entry of a nolle prosequi by the state. Smoot v. State, 780 So. 2d 660, 2001 Miss. App. LEXIS 8 (Miss. Ct. App. 2001).

This statute prolongs the time in cases where without it the prosecution would be barred, but it does not bar prosecutions under any circumstances to which no other limitation applies. Thompson v. State, 54 Miss. 740, 1877 Miss. LEXIS 92 (Miss. 1877).

RESEARCH REFERENCES

ALR.

Finding or return of indictment, or filing of information, as tolling limitation period. 18 A.L.R.4th 1202.

Waivability of bar of limitations against criminal prosecution. 78 A.L.R.4th 693.

Am. Jur.

21 Am. Jur. 2d, Criminal Law §§ 247 et seq.

CJS.

22 C.J.S., Criminal Law §§ 285 et seq.

Cross References —

Affidavit to obtain search warrant, see §99-25-15.

JUDICIAL DECISIONS

1. In general.

Circuit court has no jurisdiction of appeal from justice court of prosecuting witness taxed with costs for instituting prosecution without reasonable cause. Town of Lumberton v. Peyton, 143 Miss. 777, 109 So. 740, 1926 Miss. LEXIS 320 (Miss. 1926).

OPINIONS OF THE ATTORNEY GENERAL

Prior to assessing court costs to an affiant who fails to appear on the trial date, the justice court would have to make a determination that the affiant initiated the charges without reasonable cause. The affiant would have to be afforded due process. Shirley, Apr. 30, 2004, A.G. Op. 04-0181.

RESEARCH REFERENCES

ALR.

Seizure of property as evidence in criminal prosecution or investigation as compensable taking. 44 A.L.R.4th 366.

Am. Jur.

20 Am. Jur. 2d, Costs §§ 99 et seq.

Editor’s Notes —

Former §99-1-13 was entitled: Library fees collected as costs in certain counties.

Former §99-1-15 was entitled: Library fees collected as costs; additional counties.

Editor’s Notes —

Former §99-1-17 related to correctional facility construction costs imposed for misdemeanor and felony convictions in addition to other fines and costs.

Former §99-1-19 related to fees imposed upon professional bondsmen and fees imposed upon defendants.

Former §99-1-21 related to collection and disposition of costs and fees.

Amendment Notes —

The 2008 amendment inserted “or Web cam” throughout; deleted “an” following “Arraignment on” in (1)(c) and (d); and added (4).

Cross References —

Bail taken in open court, see §99-5-3.

Pretrial proceedings, generally, see §§99-15-1 et seq.

Arraignment and entry of guilty pleas, see §99-15-25.

Post-conviction proceeding – time for hearing and return to Department of Corrections, see §99-19-42.

Post-conviction proceedings, generally, see §§99-39-1 et seq.

OPINIONS OF THE ATTORNEY GENERAL

Lunacy hearings fall under the provisions of this section and the chancery court would be allowed to conduct hearings via closed circuit television provided that the attorney representing the respondent waived the personal appearance rights of the respondent. An attorney could waive physical presence and choose to represent his client from either the courthouse or from the place of custody or confinement during a closed circuit television hearing. Alfonso, Aug. 29, 2003, A.G. Op. 03-0384.

A defendant must be represented by counsel in order to waive physical personal appearance and appear via closed circuit television. However, the attorney could choose to represent his client from either the courthouse or the place of custody or confinement during the closed circuit television hearing. Aldridge, Oct. 10, 2003, A.G. Op. 03-0545.

JUDICIAL DECISIONS

1. Applicability.

2. Not established.

3. Effect.

4. Jury instructions.

5. Instruction properly denied.

1. Applicability.

Because defendant contended that the cocaine was not hers, her entrapment defense did not apply to her possession of cocaine conviction. Pittman v. State, 987 So. 2d 1010, 2007 Miss. App. LEXIS 747 (Miss. Ct. App. 2007), cert. dismissed, 2008 Miss. LEXIS 368 (Miss. July 31, 2008).

2. Not established.

Defendant was not entrapped with regard to his bribery of a public official in violation of Miss. Code Ann. §97-11-11 because testimony of a chief of police, the person that defendant was bribing, established that the government investigation of defendant was instigated by defendant’s request that the chief accept money in exchange for notifying defendant when the Mississippi Gaming Commission was coming to a juke joint owned by defendant’s brother. Patton v. State, 987 So. 2d 1063, 2008 Miss. App. LEXIS 432 (Miss. Ct. App. 2008).

Court rejected defendant’s claim that she established a standard entrapment claim; defendant knew where to find cocaine and had asked the confidential informant to set aside some cocaine for her after the sale, there was no evidence that she was fearful or reluctant to participate on the day of the sale, and defendant was not excused from buying or selling cocaine simply because the informant asked her to do so. The jury, after receiving the entrapment defense instruction, clearly believed defendant was predisposed to commit both crimes of sale of cocaine and possession of cocaine. Pittman v. State, 987 So. 2d 1010, 2007 Miss. App. LEXIS 747 (Miss. Ct. App. 2007), cert. dismissed, 2008 Miss. LEXIS 368 (Miss. July 31, 2008).

Trial court did not err in disallowing testimony of defendant’s bad childhood and relationship with her mother, as her defense of entrapment was whether she was predisposed to commit the crime and was induced by law enforcement to do so; defendant testified to everything that she claimed her mother would have testified, and the jury was able to hear the effect of the mother’s illness on defendant, plus other testimony concerning an alleged grudge by one agent would have been irrelevant and confusing and misleading to the jury, plus that agent turned over the information to another agent, who made the decision to proceed with the buy. Pittman v. State, 987 So. 2d 1010, 2007 Miss. App. LEXIS 747 (Miss. Ct. App. 2007), cert. dismissed, 2008 Miss. LEXIS 368 (Miss. July 31, 2008).

3. Effect.

Evidence was sufficient to support defendant’s conviction of sale of cocaine; an entrapment defense conceded the factual component of the underlying offense and there was sufficient evidence that defendant sold cocaine, plus there was an audio recording of the transaction and defendant was caught with some of the buy money in her wallet. Pittman v. State, 987 So. 2d 1010, 2007 Miss. App. LEXIS 747 (Miss. Ct. App. 2007), cert. dismissed, 2008 Miss. LEXIS 368 (Miss. July 31, 2008).

Evidence supported defendant’s conviction of possession of cocaine; defendant provided no evidence supporting her claim that the cocaine was planted in her car by police, amounting to official misconduct that allegedly constituted entrapment as a matter of law, and defendant was the only person in her car, the cocaine was found in a box in which defendant admitted that she kept drugs, and the jury was unpersuaded, as was the court, that defendant’s allegations were sufficient to have required reversal. Pittman v. State, 987 So. 2d 1010, 2007 Miss. App. LEXIS 747 (Miss. Ct. App. 2007), cert. dismissed, 2008 Miss. LEXIS 368 (Miss. July 31, 2008).

4. Jury instructions.

Defendant failed to establish entrapment as a matter of law; the trial court did not err in not submitting an entrapment as a matter of law instruction given that the trial court found that the facts did not support defendant’s claim that law enforcement acted outrageously, plus the court had previously found no entrapment as a matter of law in situations where law enforcement provided the money to the confidential informant to make a purchase, and the court was not persuaded by defendant’s claim that her situation was similar to a “reverse sale.” Pittman v. State, 987 So. 2d 1010, 2007 Miss. App. LEXIS 747 (Miss. Ct. App. 2007), cert. dismissed, 2008 Miss. LEXIS 368 (Miss. July 31, 2008).

5. Instruction properly denied.

Trial court properly refused defendant’s entrapment jury instructions, because defendant testified that no one forced him to bring the crack cocaine to the informant’s motel room, defendant was not specifically targeted, but rather the informant was instructed to contact anyone she knew who sold drugs, and defendant admitted that he began using cocaine approximately six years prior to trial and admitted that he was the supplier when he and another unnamed friend frequently used drugs together. Forrester v. State, 971 So. 2d 649, 2007 Miss. App. LEXIS 847 (Miss. Ct. App. 2007).

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a typographical error in a statutory reference in subsection (3). The reference to “Section 45-33-23(g)” was changed to “Section 45-33-23(h).” The Joint Committee ratified the correction at its August 1, 2013, meeting.

Amendment Notes —

The 2000 amendment added (2) in order to permit persons authorized by a court to supervise or monitor offenders under a house arrest program to arrest, under certain conditions, offenders who are in violation of the terms of the house arrest.

Cross References —

Judges as conservators of the peace, see §9-1-23.

General duties of constables, see §19-19-5.

Duty of sheriff to keep peace within his county, see §19-25-67.

Right of railroad police officers to exercise powers of arrest, see §77-9-505.

Obstructing or resisting arrest, see §97-9-73.

Time or place of arrest, see §99-3-3.

JUDICIAL DECISIONS

1. In general.

An arrest made by a sheriff outside his own county is valid only if a similar arrest made by a private person would be lawful. Davis v. United States, 409 F.2d 1095, 1969 U.S. App. LEXIS 12832 (5th Cir. Miss. 1969).

An arrest, within the meaning of the criminal law, is the taking into custody of another person by an officer or a private person for the purpose of holding him to answer to an alleged or suspected crime; and one who voluntarily accompanies an officer to a place where he may be interviewed is not under an arrest. Smith v. State, 229 So. 2d 551, 1969 Miss. LEXIS 1246 (Miss. 1969).

Where officers had probable cause to believe that a felony had been committed and that the defendant was the guilty party their arrest of the defendant in a county beyond their territorial jurisdiction was lawful since, under the facts stated, a private citizen had the right to make the arrest. Nash v. State, 207 So. 2d 104, 1968 Miss. LEXIS 1603 (Miss. 1968).

Where a private person deputized by a justice of the peace to execute a warrant of arrest issued by him acts under the warrant in making the arrest, he is entitled to the protection afforded a de facto officer in serving a warrant. Harris v. State, 72 Miss. 99, 16 So. 360, 1894 Miss. LEXIS 83 (Miss. 1894).

OPINIONS OF THE ATTORNEY GENERAL

Best procedure to follow in most cases where security guard witnesses crime is for guard to file affidavit against perpetrator in municipal or justice court and then if court believes that probable cause exists, court may then issue warrant for such person’s arrest and any law enforcement officer would then be fully authorized to make arrest. Norman, August 4, 1993, A.G. Op. #93-0466.

A municipal police department has concurrent jurisdiction with state security personnel over criminal over criminal activity that occurs on state-owned property located within the municipal boundaries, but since there is no authority which gives primary jurisdiction to one agency over another, a cooperative effort should be made on the part of all agencies with jurisdiction to evaluate each occurrence of criminal activity on an individual basis and make a decision as to who should have primary jurisdiction based on the circumstances of the incident and the resources of each investigating agency. Prichard, January 16, 1998, A.G. Op. #98-0009.

RESEARCH REFERENCES

ALR.

False imprisonment: liability of private citizen, calling on police for assistance after disturbance or trespass for false arrest by officer. 21 A.L.R.2d 643.

Private person’s authority, in making arrest for felony, to shoot or kill alleged felon. 32 A.L.R.3d 1078.

Personal liability of policeman, sheriff, or similar peace officer or his bond, for injury suffered as a result of failure to enforce law or arrest lawbreaker. 41 A.L.R.3d 700.

Modern status or rules as to right to forcefully resist illegal arrest. 44 A.L.R.3d 1078.

Right to resist excessive force used in accomplishing lawful arrest. 77 A.L.R.3d 281.

Liability of police or peace officers for false arrest, imprisonment, or malicious prosecution as affected by claim of suppression, failure to disclose, or failure to investigate exculpatory evidence. 81 A.L.R.4th 1031.

Burden of proof in civil action for using unreasonable force in making arrest as to reasonableness of force used. 82 A.L.R.4th 598.

Reviewability before trial of order denying qualified immunity to defendant sued in state court under 42 USCS § 1983. 49 A.L.R.5th 717.

Power of Private Citizen to Institute Criminal Proceedings Without Authorization or Approval by Prosecuting Attorney. 90 A.L.R.6th 385.

When does police officer’s use of force during arrest become so excessive as to constitute violation of constitutional rights, imposing liability under Federal Civil Rights Act of 1871 (42 USCS § 1983). 60 A.L.R. Fed. 204.

Am. Jur.

5 Am. Jur. 2d, Arrest §§ 1 et seq.

9 Am. Jur. Proof of Facts 2d, Police Officer’s Use of Excessive Force in Making Arrest, §§ 12 et seq. (proof that police officer, in making an arrest for a misdemeanor and later a felony, used excessive force).

Lawyers’ Edition.

What constitutes probable cause for arrest. 28 L. Ed. 2d 978.

Practice References.

Adams, James A. and Blinka, Daniel D., Prosecutor’s Manual for Arrest, Search and Seizure (LexisNexis).

Cohen, Green and Slavin, Apprehending and Prosecuting the Drunk Driver: A Manual for Police and Prosecution (Matthew Bender).

Dressler, Joshua, and Michaels, Alan C., Understanding Criminal Procedure: Volume One, Investigation, Sixth Edition (LexisNexis).

George, Jr., B. James, Tymkovich, Timothy M., Coats, Nathan B., and Erickson, William H., United States Supreme Court Cases and Comments: Criminal Law and Procedure (Matthew Bender).

Gershman, Bennett L., Criminal Trial Error and Misconduct, Second Edition (Matthew Bender).

Hall, John Wesley, Search and Seizure, Fifth Edition (Michie).

Mauriello, P. Thomas, Criminal Investigation Handbook (Matthew Bender).

Newton, Brent E., Practical Criminal Procedure: A Constitutional Manual, Second Edition (NITA).

Ordover, Abraham P., Criminal Law Advocacy (Matthew Bender).

Sacks, Garfield and Garfield, Criminal Defense Techniques (Matthew Bender Elite Products).

Schoenberg, Ronald L., Criminal Law Deskbook (Matthew Bender).

Shapiro, Jay, Criminal Practice Handbook, Fourth Edition (Michie).

Criminal Constitutional Law (Matthew Bender).

Criminal Law Deskbook (Matthew Bender).

LexisNexis CD - Criminal Law for Solo and Small Law Practitioners (LexisNexis).

Mississippi Criminal and Traffic Law Manual (LexisNexis Law Enforcement).

OPINIONS OF THE ATTORNEY GENERAL

This section provides that justice court clerk shall record all affidavits; this section also allows anyone bringing criminal matter in justice court to “lodge the affidavit with the judge or clerk”; judge may choose to have clerk acknowledge affidavit. Ferguson, June 9, 1993, A.G. Op. #93-0331.

RESEARCH REFERENCES

ALR.

Propriety of search of nonoccupant visitor’s belongings pursuant to warrant issued for another’s premises. 51 A.L.R.5th 375.

Admissibility of evidence discovered in search of adult defendant’s property or residence authorized by defendant’s minor child – state cases. 51 A.L.R.5th 425.

JUDICIAL DECISIONS

1. In general.

An arrest warrant need not be executed at the first available opportunity. Godbold v. State, 731 So. 2d 1184, 1999 Miss. LEXIS 55 (Miss. 1999).

When a crime had recently been committed in the area and a police officer came upon the defendant and observed that he was wearing a concealed weapon, the officer had no choice but to arrest the defendant or prevent him from using his gun and to prevent a breach of the peace; and evidence obtained from a search of the defendant was admissible in court. Chandler v. State, 272 So. 2d 641, 1973 Miss. LEXIS 1537 (Miss. 1973).

Peace officers and citizens may at any time arrest persons who are committing crimes in their presence, or to prevent a breach of the peace. Shinall v. State, 199 So. 2d 251, 1967 Miss. LEXIS 1290 (Miss.), cert. denied, 389 U.S. 1014, 88 S. Ct. 590, 19 L. Ed. 2d 660, 1967 U.S. LEXIS 27 (U.S. 1967), overruled, Flowers v. State, 473 So. 2d 164, 1985 Miss. LEXIS 2140 (Miss. 1985).

RESEARCH REFERENCES

Am. Jur.

9 Am. Jur. Proof of Facts 2d, Police Officer’s Use of Excessive Force in Making Arrest, §§ 12 et seq. (proof that police officer, in making an arrest for a misdemeanor and later a felony, used excessive force).

Cross References —

Sheriffs employing power of county in making arrests, see §19-25-39.

JUDICIAL DECISIONS

1. In general.

Defendant’s motion for post-conviction relief (PCR) was time-barred because the defendant did not file his PCR until more than three years later; defendant had three years with full knowledge of the favorable witness in which to move for post-conviction relief, yet he did not do so, and therefore his PCR was not excepted from the time bar on the basis of newly discovered evidence. Adams v. State, 954 So. 2d 1051, 2007 Miss. App. LEXIS 244 (Miss. Ct. App. 2007).

A railroad policeman making an arrest of person allegedly stealing coal from his employer, who called to his assistance a deputy sheriff, was not a bystander within the purview of this section [Code 1942, § 2468], where such railroad policeman was himself in charge of the situation and the deputy sheriff was acting under his direction. Jefferson v. Yazoo & M. V. R. R. Co., 194 Miss. 729, 11 So. 2d 442, 1943 Miss. LEXIS 28 (Miss. 1943).

This section [Code 1942, § 2468] justifies neither the officer nor anyone called on to assist him in unnecessarily killing a person in custody. Jefferson v. Yazoo & M. V. R. R. Co., 194 Miss. 729, 11 So. 2d 442, 1943 Miss. LEXIS 28 (Miss. 1943).

RESEARCH REFERENCES

Law Reviews.

Blue, High Noon revisited: commands of assistance by peace officers in the age of the Fourth Amendment. 101 Yale L. J. 1475, May 1992.

Joint Legislative Committee Note —

Section 1 of ch. 554, Laws, 2000, effective from and after July 1, 2000, amended this section. Section 2 of ch. 555, Laws, 2000, effective from and after July 2, 2000, also amended this section. As set out above, this section reflects the language of Section 2 of ch. 555, Laws, 2000, pursuant to Section 1-3-79 which provides that whenever the same section of law is amended by different bills during the same legislative session, the amendment with the latest effective date shall supersede all other amendments to the same section taking effect earlier.

Amendment Notes —

The 1999 amendment, in (3), deleted “or” following “a chancery, county” and inserted “or municipal”; in (4)(a), inserted “domestic” and deleted “or” following “Section 97-3-7”; in (4)(b), inserted “or”; added (4)(c); and added (5).

The first 2000 amendment (ch. 554), in (3), inserted “ex parte,” “protective order after hearing” and “or a restraining order . . . Section 97-3-7,” and substituted “or prohibits such person from being within a specified distance of another person or persons” for “provided that such order specifically provides for an arrest pursuant to this section for such violation”; added “current or former spouses, or persons who have a biological or legally adopted child together” in the introductory language of (4); substituted “violence” for “assault” in (4)(a); and made other minor changes.

The second 2000 amendment (ch. 555), in (3), inserted “ex parte,” “protective order after hearing” and “or a restraining order . . . Section 97-3-7,” and substituted “or prohibit such person from being within a specified distance of another person or persons” for “provided that such order specifically provides for an arrest pursuant to this section for such violation”; inserted present (4) and redesignated the remaining subsections accordingly; added “current or former spouses, or persons who have a biological or legally adopted child together” in the introductory language of (5); substituted “violence” for “assault” in (5)(a); and made minor stylistic changes.

The 2002 amendment redesignated former (3) as present (3)(a); added (3)(b) through (3)(e); inserted “persons who have a current dating relationship” following “current or former spouses” in (5); and added (7).

The 2008 amendment, in (3)(a), inserted “circuit” following “chancery,” inserted “refrain from further abuse or threats of abuse,” and made minor stylistic changes; in (3)(b), rewrote the second sentence, and substituted the present last sentence for the former last sentence, which read: “If the officer believes that all parties are equally responsible, the officer shall exercise such officer’s best judgment in determining probable cause”; and rewrote the introductory paragraph of (5).

The 2009 amendment added the last three sentences in (6).

The 2010 amendment inserted “or a child of current or former spouses” and “or a child of persons living as spouses or who formerly lived as spouses” in the introductory paragraph in (5).

The 2012 amendment deleted “as defined by Section 97-3-7 that requires the person to refrain from further abuse or threats of abuse, to absent himself from a particular geographic area, or prohibit such person from being within a specified distance of another person or persons” from the end of (3)(a); and substituted “a parent, grandparent, child, grandchild or someone similarly situated to the defendant” for “other persons related by consanguinity or affinity who reside or formerly resided together” near the end of (5).

The 2013 amendment added (8).

The 2014 amendment, in (3)(a) and (5), substituted “or felony that” for “which”; in (3)(b), deleted “a misdemeanor which is” following “two (2) or more persons committed”; and inserted “of domestic violence” to (3)(b), “or aggravated” to (5)(a), and “or felony that is a” to (6).

The 2015 amendment inserted “a criminal protection order issued pursuant to Section 97-3-7(11)” in (3)(a).

The 2017 amendment, effective April 6, 2017, in (3)(a), inserted “domestic violence or sexual assault” and “97-3-65(6) or 97-3-101(5) or”; and substituted “To determine which party was” for “To determine who is” in (3)(c).

Cross References —

Search and Seizure, see U.S. Const., Amend. IV; Miss. Const., Art. 3, § 23.

Authorization of law enforcement officer dispatched to educational institute to arrest upon probable cause, see §37-11-29.

Immunity of a law enforcement officer for an arrest, or failure to make an arrest, pursuant to this section, see §93-21-27.

Who may make arrests, see §99-3-1.

Domestic violence, bail restrictions, see §99-5-37.

Inapplicability of Mississippi Rules of Evidence to probable cause hearings in criminal cases, see Miss. R. Evid. 1101.

JUDICIAL DECISIONS

1. In general.

2. Felony.

3. Misdemeanor.

4. Fresh pursuit.

5. Right to fix bail.

6. “Presence” requirement.

7. Probable cause, generally.

8. —Information obtained from informant.

9. —Information obtained from radio broadcast.

10. —In particular situations.

11. —Lacking in particular situations.

12. Arrest by private person.

13. Admissibility of evidence.

14. Instructions.

15. Third parties.

16. Jurisdiction.

17. Illustrative cases.

1. In general.

Even if the town police officers owed a duty to the murder victim under Miss. Code Ann. §99-3-7(3)(a), Miss. Code Ann. §93-21-27 specifically provided immunity to the officers. Fair v. Town of Friars Point, 930 So. 2d 467, 2006 Miss. App. LEXIS 419 (Miss. Ct. App. 2006).

Deputy could lawfully arrest defendant without a warrant pursuant to Miss. Code Ann. §99-3-7 where the deputy personally observed the property damage and defendant’s vehicle, and he gathered a statement from the homeowner; additionally, defendant admitted to the deputy that he hit the mailbox, such that the presence requirement of §99-3-7 was satisfied. Spencer v. State, 908 So. 2d 783, 2005 Miss. App. LEXIS 123 (Miss. Ct. App.), cert. denied, 920 So. 2d 1008, 2005 Miss. LEXIS 498 (Miss. 2005).

Where the victim was shot by her estranged husband after an arrest warrant was issued, but never delivered to the sheriff’s department, there was ample probable cause to arrest through Miss. Code Ann. §99-3-7(3), based upon Miss. Code Ann. §97-35-15. However, reckless disregard required that the person knowingly or intentionally commit a wrongful act and even viewing the facts in a light most favorable to the victim, the victim showed no evidence that the sheriff’s department knew that it could and/or was required to arrest the victim’s estranged husband; the sheriff’s department’s conduct, even if negligent, could not be said to have risen to the level of reckless disregard, and therefore, Miss. Code Ann. §11-46-9(c) did provide immunity based upon the sheriff’s department’s conduct, and summary judgment was proper as to the sheriff’s department. Collins v. Tallahatchie County, 876 So. 2d 284, 2004 Miss. LEXIS 798 (Miss. 2004).

A police officer’s statement that he had a warrant for defendant’s arrest did not invalidate the arrest, even though the arrest warrant was not valid, where the officer had knowledge of facts sufficient to constitute probable cause for a warrantless arrest pursuant to this section. Lanier v. State, 450 So. 2d 69, 1984 Miss. LEXIS 1695 (Miss. 1984).

There was sufficient compliance with this section when the arresting officer informed defendant that he was being arrested for larceny and gave him a copy of the arrest warrant as soon as they had reached the jail. Wilcher v. State, 448 So. 2d 927, 1984 Miss. LEXIS 1618 (Miss.), cert. denied, 469 U.S. 873, 105 S. Ct. 231, 83 L. Ed. 2d 160, 1984 U.S. LEXIS 369 (U.S. 1984).

A warrantless arrest of an occupant of an automobile who matched the description of the person who robbed a motel 45 minutes before was made with probable cause and was valid under this section where the officers told the occupant that he was under arrest for investigation. Johnson v. State, 347 So. 2d 358, 1977 Miss. LEXIS 2039 (Miss. 1977).

A policeman had authority to make a warrantless arrest of defendant where, though defendant contended he was being followed by police because of a report that defendant had assaulted someone earlier in the day, evidence supported the policemen’s contention that they were following him to take him into custody for reckless driving after observing him driving at an excessive speed, spinning his wheels, and fishtailing. Kinney v. State, 336 So. 2d 493, 1976 Miss. LEXIS 1509 (Miss. 1976).

Where a police officer was pursuing the defendant in an effort to arrest him for an offense committed in the officer’s presence, the officer was not required to inform the defendant of the object and cause of the arrest. Watts v. State, 305 So. 2d 348, 1974 Miss. LEXIS 1479 (Miss. 1974).

Where there was an outstanding warrant for the arrest of defendant at the time of the arrest, and the arresting officer knew of its existence, the failure of the arresting officer to provide the warrant for defendant’s arrest on a misdemeanor charge did not entitled defendant to resist arrest. Torrence v. State, 283 So. 2d 595, 1973 Miss. LEXIS 1232 (Miss. 1973).

A sheriff had no right to arrest the defendant unless it was evident to him at the time that some breach of the peace was being threatened or a crime was being committed in his presence. Terry v. State, 252 Miss. 479, 173 So. 2d 889, 1965 Miss. LEXIS 1123 (Miss. 1965), overruled, Strode v. State, 231 So. 2d 779, 1970 Miss. LEXIS 1605 (Miss. 1970).

An arrest begins when the officer begins his pursuit for the purpose of making it, and if he does not have the authority to make an arrest for possession of whisky at the instant he begins his pursuit of an automobile for that purpose, the fact that the person the officer is pursuing violates a traffic law in making his escape does not thereby authorize the arrest which began unlawfully. Terry v. State, 252 Miss. 479, 173 So. 2d 889, 1965 Miss. LEXIS 1123 (Miss. 1965), overruled, Strode v. State, 231 So. 2d 779, 1970 Miss. LEXIS 1605 (Miss. 1970).

An arrest without a warrant, otherwise legal, is not rendered illegal by the failure of the arresting officer to inform the person arrested of the object and cause of his arrest. Fuqua v. State, 246 Miss. 191, 145 So. 2d 152, 1962 Miss. LEXIS 522 (Miss. 1962), cert. denied, 372 U.S. 709, 83 S. Ct. 1018, 10 L. Ed. 2d 125, 1963 U.S. LEXIS 1814 (U.S. 1963).

Pursuit and arrest without a warrant is not rendered permissible by the fact that a motorist on seeing the sheriff in a car alongside, drove away as rapidly as possible, incidentally violating traffic laws. Smith v. State, 240 Miss. 738, 128 So. 2d 857, 1961 Miss. LEXIS 505 (Miss. 1961).

The legislature by this section [Code 1942, § 2470] extended the common-law authority of officers to make arrests without a warrant to indictable offenses committed or attempted in the presence of an officer whether or not a breach of the peace was involved. Smith v. State, 228 Miss. 476, 87 So. 2d 917, 1956 Miss. LEXIS 535 (Miss. 1956).

Where there was a violation of the law in operation of movie theater on a Sunday after 6 p.m., the police officers, in whose presence the law was violated, were authorized to make multiple arrests without warrants. Paramount-Richards Theatres, Inc. v. Hattiesburg, 210 Miss. 271, 49 So. 2d 574, 1950 Miss. LEXIS 347 (Miss. 1950).

A sheriff entering one’s private backyard and, upon smelling liquor, arrested the owner for possession of intoxicating liquor, was a trespasser, and the arrest was illegal where the sheriff had no warrant. Hartfield v. State, 209 Miss. 787, 48 So. 2d 507, 1950 Miss. LEXIS 443 (Miss. 1950).

To justify officer’s arrest of person without warrant for commission of misdemeanor in his presence, there must presently exist, independently of confession, essential facts to the knowledge of person making arrest which constitute corpus delicti. Harris v. State, 209 Miss. 183, 46 So. 2d 194, 1950 Miss. LEXIS 378 (Miss. 1950).

Finding of liquor in purse on rear seat of car by officer making search of automobile under search warrant does not authorize officer to arrest husband of owner of purse for unlawful possession of liquor without warrant, and arrest cannot be vindicated by finding, after arrest, of liquor in possession of defendant husband. Kelly v. State, 43 So. 2d 383 (Miss. 1949).

Finding of liquor in purse on rear seat of car, belonging to woman in car, by officer making search of automobile under search warrant does not authorize officer to arrest without warrant former passenger who has left car and entered his own place of business, and subsequent search of passenger’s person is unlawful. Kelly v. State, 43 So. 2d 383 (Miss. 1949).

Arrest without warrant for illegal possession of intoxicating liquor was lawful where the officer smelled whiskey on the accused and saw a bottle in his pocket, even though the whiskey in the bottle was not visible until after the arrest. Copeland v. State, 202 Miss. 58, 30 So. 2d 509, 1947 Miss. LEXIS 241 (Miss. 1947).

Deputy sheriffs had no right to arrest without warrant man approaching illicit still, unless they had reasonable ground to suspect and believe that he owned or was operating still and informed him of object and cause of arrest. Hinton v. Sims, 171 Miss. 741, 158 So. 141, 158 So. 778, 1934 Miss. LEXIS 276 (Miss. 1934).

Generally, officer seeking to arrest another without warrant should tell latter to consider himself under arrest, though not required to inform him of object and cause of arrest until after it is made. Hinton v. Sims, 171 Miss. 741, 158 So. 141, 158 So. 778, 1934 Miss. LEXIS 276 (Miss. 1934).

Deputy sheriff’s attempted arrest without warrant of man approaching illicit still by commanding him to raise hands, instead of telling him to consider himself under arrest, held illegal. Hinton v. Sims, 171 Miss. 741, 158 So. 141, 158 So. 778, 1934 Miss. LEXIS 276 (Miss. 1934).

One whom deputy sheriffs illegally attempted to arrest without warrant by commanding him to raise his hands, instead of telling him to consider himself under arrest, had right to resist officers with force necessary to meet force. Hinton v. Sims, 171 Miss. 741, 158 So. 141, 158 So. 778, 1934 Miss. LEXIS 276 (Miss. 1934).

A person who before arrest states that certain kegs in his automobile contained whisky may be arrested without warrant and the officer may seize the intoxicating liquor without warrant for a crime committed in his presence. Williamson v. State, 140 Miss. 841, 105 So. 479, 1925 Miss. LEXIS 314 (Miss. 1925).

2. Felony.

Arrest is valid if arresting officer has probable cause to believe that felony has been committed and probable cause to believe that suspect to be arrested committed the felony; probable cause means less than evidence which would justify condemnation but more than bare suspicion. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

A warrant is not necessary for an arrest when a felony has been committed and there is reasonable ground to believe the one arrested committed the crime. McEwen v. State, 224 So. 2d 206, 1969 Miss. LEXIS 1290 (Miss. 1969).

If a person has committed a felony though not in the presence of the officer, an officer may arrest him without warrant, or may make arrest of felons where he has reasonable grounds to believe that the person to be arrested has committed a felony. Kennedy v. State, 139 Miss. 579, 104 So. 449, 1925 Miss. LEXIS 175 (Miss. 1925).

Officer having knowledge or probable grounds for believing that felony is being committed may go on premises without warrant for arrest, and without search warrant, and arrest for felony. Pickett v. State, 139 Miss. 529, 104 So. 358, 1925 Miss. LEXIS 174 (Miss. 1925).

3. Misdemeanor.

Sufficient evidence supported defendant’s conviction for misdemeanor domestic violence, pursuant to Miss. Code Ann. §97-3-7(3), because the 911 dispatcher testified the victim, who was defendant’s husband, stated defendant bit him during an altercation, pictures of the victim’s injuries were admitted into evidence, and defendant admitted biting the victim; the husband’s decision not to cooperate with the prosecution did not preclude a charge of domestic violence against defendant, pursuant to Miss. Code Ann. §99-3-7(3)(a). Anderson v. State, 102 So.3d 304, 2012 Miss. App. LEXIS 510 (Miss. Ct. App. 2012), cert. dismissed, 105 So.3d 326, 2013 Miss. LEXIS 37 (Miss. 2013).

Failure to make an arrest where there was probable cause that an act of domestic violence had occurred did not inherently establish reckless disregard for safety so as to overcome the city’s immunity under Miss. Code Ann. §11-46-9(1)(c). City of Laurel v. Williams, 21 So.3d 1170, 2009 Miss. LEXIS 566 (Miss. 2009).

The defendant was properly arrested for possession of alcohol in a dry county, notwithstanding the absence of any breach of peace threatened or attempted in the presence of the arresting officer; the officer approached the vehicle in which the defendant was seated in good faith and in response to a reported domestic disturbance call. Northington v. State, 749 So. 2d 1099, 1999 Miss. App. LEXIS 470 (Miss. Ct. App. 1999).

The misdemeanor offenses of reckless driving and driving under the influence of intoxicating liquor were both committed in the presence of a police officer within the meaning of this section, even though he did not observe the defendant driving, and thus rendered the defendant’s arrest legal, where the officer observed an accident upon arriving at the scene, the position of the vehicles, the damage to each, an ambulance, attendants attempting to revive one of the victims, the defendant sitting under a steering wheel, the strong odor of alcohol on defendant’s breath, the defendant’s slurred speech, and his unsteadiness on his feet; accordingly, results of a blood test administered after defendant’s arrest were properly admitted into evidence, particularly where the officer learned that the victim was dead prior to administering the test, whereupon he had the right to detain defendant on the felony charge of culpably negligent homicide. Williams v. State, 434 So. 2d 1340, 1983 Miss. LEXIS 2727 (Miss. 1983), but see Fisher v. Eupora, 587 So. 2d 878, 1991 Miss. LEXIS 669 (Miss. 1991).

An officer making an arrest for a misdemeanor not committed in his presence must have the warrant for such arrest in his actual possession if the arrest is to be lawful. Butler v. State, 212 So. 2d 573, 1968 Miss. LEXIS 1289 (Miss. 1968).

An officer making an arrest for a misdemeanor not committed in his presence must have the warrant of arrest in his actual possession if the arrest is to be lawful, and he must show it to the accused if requested to do so. Smith v. State, 208 So. 2d 746, 1968 Miss. LEXIS 1418 (Miss. 1968).

An officer who has in good faith stopped an automobile to check the operator’s license, may make an arrest for a misdemeanor committed in his presence, such as the carrying of a concealed weapon, discovered while searching the car. Morgan v. Heidelberg, 246 Miss. 481, 150 So. 2d 512, 1963 Miss. LEXIS 468 (Miss. 1963).

The arrest for misdemeanors committed or attempted in the presence of officers must be made as quickly after the commission of the offense as the circumstances will permit. Smith v. State, 228 Miss. 476, 87 So. 2d 917, 1956 Miss. LEXIS 535 (Miss. 1956).

Officer has right to make an arrest without warrant for the commission of misdemeanor in his presence, and misdemeanor is being committed in presence of officer when he then and there acquires knowledge thereof through one of his senses. Thomas v. State, 208 Miss. 264, 44 So. 2d 403, 1950 Miss. LEXIS 245 (Miss. 1950).

Officer is authorized to arrest defendant for unlawful possession of liquor without warrant only if misdemeanor is being knowingly committed in his presence. Kelly v. State, 43 So. 2d 383 (Miss. 1949).

As regards arrest without warrant, a misdemeanor is being committed in the presence of an officer when he then and there acquires knowledge thereof through one of his senses or inferences properly to be drawn from the testimony of the senses. Copeland v. State, 202 Miss. 58, 30 So. 2d 509, 1947 Miss. LEXIS 241 (Miss. 1947).

4. Fresh pursuit.

Where a felony is committed at night and, being discovered the next morning, an officer and others immediately followed and shortly coming upon the felon in hiding he flees and is followed, this is a fresh pursuit within the meaning of the section [Code 1942, § 2470] and a warrant for the arrest is not necessary. White v. State, 70 Miss. 253, 11 So. 632, 1892 Miss. LEXIS 62 (Miss. 1892).

5. Right to fix bail.

This section [Code 1942, § 2470], coupled with the right of a sheriff to place in jail a person arrested, necessarily implies that a sheriff has the right to fix the amount of bail of a person arrested without a warrant for an indictable offense committed in his presence and to determine the sufficiency of the bail bond tendered to him, rather than indefinitely to detain the accused in jail pending the availability of a mayor or justice of the peace. Sheffield v. Reece, 201 Miss. 133, 28 So. 2d 745, 1947 Miss. LEXIS 378 (Miss. 1947).

6. “Presence” requirement.

A conservation officer properly entered private property to arrest the defendants for hunting violations since his personal observations led him to believe that hunting violations were then and there occurring in his presence where he observed an individual in a tree stand (approximately 15 to 20 feet above ground) with a gun but not wearing hunter orange and had information that individuals were hunting over bait on the property. Corry v. State, 710 So. 2d 853, 1998 Miss. LEXIS 128 (Miss. 1998).

A defendant’s arrest for driving while intoxicated was legal, and therefore the subsequent intoxilyzer test was not tainted, even though the arresting officer did not observe the defendant driving, where the defendant admitted to the arresting officer that he had been driving an automobile which was involved in an accident, and the defendant was publicly intoxicated in the presence of the officer and others in violation of §97-29-47. Goforth v. Ridgeland, 603 So. 2d 323, 1992 Miss. LEXIS 348 (Miss. 1992).

The “presence” requirement of this section had been met and an officer properly arrested the defendant for a misdemeanor crime, where the officer obtained sufficient facts to establish the corpus delicti of a crime and additionally obtained a confession. Bayse v. State, 420 So. 2d 1050, 1982 Miss. LEXIS 2176 (Miss. 1982).

An offense is being committed in the presence of an officer, pursuant to this section, when he acquires knowledge thereof through one of his senses. Where, through the sense of sight, smell, or hearing, an officer receives knowledge that an offense is being committed in his presence, he may arrest the offender without a warrant. Accordingly, where police officers had been monitoring a conversation taking place inside a house and were aware that marijuana was inside the house and that a sale was in progress, a felony was being committed in the presence of officers who were monitoring the conversation and an officer was authorized to arrest the defendant without a warrant. Moss v. State, 411 So. 2d 90, 1982 Miss. LEXIS 1889 (Miss. 1982).

Where through the senses of sight, smell, or hearing, an officer receives knowledge that the offense of carrying a concealed weapon is being committed in his presence, he may arrest the offender without a warrant. Reed v. State, 199 So. 2d 803, 1967 Miss. LEXIS 1309 (Miss. 1967), cert. denied, 390 U.S. 413, 88 S. Ct. 1113, 19 L. Ed. 2d 1273, 1968 U.S. LEXIS 2174 (U.S. 1968).

If an officer witnesses a commission of an offense and does not arrest the offender, but departs, on other business, or for other purposes, and afterwards returns, he cannot then arrest the offender without a warrant, for then the reasons for allowing the arrest to be made without a warrant have disappeared. Smith v. State, 228 Miss. 476, 87 So. 2d 917, 1956 Miss. LEXIS 535 (Miss. 1956).

7. Probable cause, generally.

Law enforcement may arrest a suspect without a warrant when an officer has probable cause to believe that a felony has been committed by the person to be arrested. Avery v. State, 179 So.3d 1182, 2015 Miss. App. LEXIS 320 (Miss. Ct. App.), cert. denied, 179 So.3d 1137, 2015 Miss. LEXIS 594 (Miss. 2015), cert. denied, — U.S. —, 136 S. Ct. 1210, 194 L. Ed. 2d 213, 2016 U.S. LEXIS 1602 (U.S. 2016).

Probable cause existed for a warrantless arrest because a clerk’s identification was sufficient to provide the police with reasonable grounds to suspect that defendant committed the crime, and police suspicions were heightened the following day when a detective noticed a man fitting defendant’s description outside of another gas station. When approached, defendant fled, and in doing so, he discarded a knife later confirmed by the store clerk to be the same knife used in the robbery. Jones v. State, 993 So. 2d 386, 2008 Miss. App. LEXIS 232 (Miss. Ct. App.), cert. denied, 997 So. 2d 924, 2008 Miss. LEXIS 503 (Miss. 2008).

In defendant’s auto burglary case, an officer had probable cause for a warrantless arrest of defendant because the arresting officer testified that he was aware that there had been an attempted vehicle burglary nearby, and when the individual seen inside the car did not respond to the officer’s two requests to exit the vehicle, the officer had probable cause to break the car window and detain the individual; the fact that defendant physically resisted the officer’s lawful requests, after reasonable suspicion was established, furthered the establishment of probable cause to arrest him. Qualls v. State, 947 So. 2d 365, 2007 Miss. App. LEXIS 21 (Miss. Ct. App. 2007).

Defendant’s warrantless arrest for murder by Tennessee police was supported by probable cause: he left Mississippi by bus on the day of the murder, the man who drove him to the bus station implicated himself in the crime, a bloody palm print at the crime scene suggested that the killer cut his right hand, and Tennessee police confirmed that defendant had an injured hand. Jones v. State, 841 So. 2d 115, 2003 Miss. LEXIS 134 (Miss. 2003).

Where a defendant was arrested without a warrant in Tennessee for a murder committed in Mississippi, the Tennessee police were entitled to rely on information Mississippi police relayed to them which established probable cause for the arrest. Jones v. State, 841 So. 2d 115, 2003 Miss. LEXIS 134 (Miss. 2003).

Existence of probable cause or reasonable grounds justifying arrest without a warrant is determined by factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Failure to inform the accused of the object and cause of his arrest, as required under this section, merely shifts the burden of proving probable cause to the state. Upshaw v. State, 350 So. 2d 1358, 1977 Miss. LEXIS 2249 (Miss. 1977).

Where the sheriff was present with the chief of police and the affiant, and personally observed the making of the affidavit and the issuance of an arrest warrant, after which the chief of police and the sheriff went in opposite directions with the chief of police taking the warrant, and the sheriff arrested the defendant and informed him of the cause of his arrest, the state was not obliged to prove probable cause with respect to the arrest. Johnson v. State, 260 So. 2d 436, 1972 Miss. LEXIS 1557 (Miss. 1972).

Probable cause to make an arrest means less evidence than would justify condemnation, but more than bare suspicion. Powe v. State, 235 So. 2d 920, 1970 Miss. LEXIS 1471 (Miss. 1970).

Where an officer, in good faith, believes that a person is guilty of a felony, and his belief rests on such grounds as would induce an ordinarily prudent man, under the circumstances, to believe likewise, he has such probable cause as will justify him for arresting without a warrant. Canning v. State, 226 So. 2d 747, 1969 Miss. LEXIS 1316 (Miss. 1969), overruled, White v. State, 571 So. 2d 956, 1990 Miss. LEXIS 758 (Miss. 1990).

Probable cause for the arrest of an accused without a warrant is a judicial question, and the arresting officer is not the final judge of whether he has sufficient information on which to base his actions in making an arrest. Canning v. State, 226 So. 2d 747, 1969 Miss. LEXIS 1316 (Miss. 1969), overruled, White v. State, 571 So. 2d 956, 1990 Miss. LEXIS 758 (Miss. 1990).

A police officer is not the final judge as to whether he had probable cause to make an arrest. Ray v. R. G. Le Tourneau, Inc., 220 So. 2d 837, 1969 Miss. LEXIS 1481 (Miss. 1969).

An officer without a warrant may arrest a person when he has reasonable cause to believe that a felony has been committed, and reasonable cause to believe that such person committed it. Lathers v. United States, 396 F.2d 524, 1968 U.S. App. LEXIS 6801 (5th Cir. Miss. 1968).

Objection that arrest was not upon probable cause is waived by failure to raise it at the trial. Gordon v. State, 160 So. 2d 73 (Miss. 1964).

Probable cause for an arrest exists where the arresting officer has official information that a criminal charge has been placed against the person arrested, and has recognized him from a photograph. Fuqua v. State, 246 Miss. 191, 145 So. 2d 152, 1962 Miss. LEXIS 522 (Miss. 1962), cert. denied, 372 U.S. 709, 83 S. Ct. 1018, 10 L. Ed. 2d 125, 1963 U.S. LEXIS 1814 (U.S. 1963).

It is not enough that there is a good ground to believe that a felony has been committed, but the ground for the belief must include also as an element essential to the right to arrest that the party to be arrested is the person guilty of felony, and without the second element, the first had as well not exist, and it is not enough that there was good ground to believe that the person proposed to be arrested was present at the time the felony was committed. Branning v. State, 215 Miss. 223, 60 So. 2d 633, 1952 Miss. LEXIS 556 (Miss. 1952).

In an action for alleged unlawful assault and battery and unlawful arrest and imprisonment where it was shown that the officers had no warrant, but there was factual issue as to whether plaintiff when arrested was engaged in the actual commission of an offense in the presence of these officers, it was a question for the jury as to whether the officers had authority to make the arrest. State use of Smith v. Broom, 58 So. 2d 32 (Miss. 1952).

This statute is declaratory of the common law and under it there must be probable cause to believe that a felony has been committed, and that the person to be arrested is the guilty party. Craft v. State, 202 Miss. 43, 30 So. 2d 414, 1947 Miss. LEXIS 239 (Miss. 1947).

Under this section [Code 1942, § 2470], it is not enough that there is good ground to believe that a felony has been committed, but the ground for the belief must include also as an element essential to the right to arrest that the party to be arrested is the party guilty of the felony. Craft v. State, 202 Miss. 43, 30 So. 2d 414, 1947 Miss. LEXIS 239 (Miss. 1947).

An arrest without warrant cannot be made on the belief that the person proposed to be arrested was present at the time that a felony was committed. Craft v. State, 202 Miss. 43, 30 So. 2d 414, 1947 Miss. LEXIS 239 (Miss. 1947).

8. —Information obtained from informant.

Detective had both exigent circumstances and probable cause to make the warrantless entry into the residence and arrest defendant after investigating the reliable anonymous tip concerning drug activity and going in hot pursuit of defendant after he fled from lawful questioning about that tip. Cooper v. State, 145 So.3d 1219, 2013 Miss. App. LEXIS 686 (Miss. Ct. App. 2013), aff'd, 145 So.3d 1164, 2014 Miss. LEXIS 433 (Miss. 2014).

Sheriff who arrested defendant, on the basis of information furnished by a person who, by giving the information, implicated his brother as well as the defendant, acted with probable cause. Moore v. State, 493 So. 2d 1295, 1986 Miss. LEXIS 2608 (Miss. 1986).

Information obtained from an anonymous telephone informer that the defendant would be transporting whisky in a certain automobile at a certain place and time does not constitute probable cause for the search of the defendant’s automobile and the seizure of liquor found there. Terry v. State, 252 Miss. 479, 173 So. 2d 889, 1965 Miss. LEXIS 1123 (Miss. 1965), overruled, Strode v. State, 231 So. 2d 779, 1970 Miss. LEXIS 1605 (Miss. 1970).

9. —Information obtained from radio broadcast.

Incriminating oral statements given by defendant’s brother and brother-in-law, which placed defendant at the scene of the crime, and a police radio report that there was a warrant for his arrest, furnished police officers with probable cause to arrest defendant. Kelly v. State, 493 So. 2d 356, 1986 Miss. LEXIS 2575 (Miss. 1986).

In a prosecution for armed robbery, the defendant’s arrest was lawful where one of the arresting officers testified that he had received information on his police radio that there was a warrant for the defendant’s arrest and where this official information was presumed to be authentic and was sufficient to constitute probable cause for the arrest of the defendant by officers without the warrant being in their possession. Anderson v. State, 397 So. 2d 81, 1981 Miss. LEXIS 1988 (Miss. 1981).

A radio dispatch from the highway safety patrol which described the getaway vehicle used in a robbery, supplied the arresting officer with probable cause to pursue the described automobile and to arrest its occupants, one of whom was the defendant. Norwood v. State, 258 So. 2d 756, 1972 Miss. LEXIS 1512 (Miss. 1972).

Probable cause for arrest was lacking where the arrest was made on the basis of information given on a police radio bulletin describing the defendant and another person, the automobile which they were probably driving, and items allegedly stolen from a building, but which information was in turn based on an uncorroborated tip from an informer. Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S. Ct. 1031, 28 L. Ed. 2d 306, 1971 U.S. LEXIS 65 (U.S. 1971).

10. —In particular situations.

Arrestee’s 42 U.S.C.S. § 1983 suit against a municipal police chief and an officer failed because the officer had authority under Miss. Code Ann. §99-3-7(1) to travel outside his jurisdiction to make a warrantless arrest based on information provided to the chief that the arrestee had embezzled money while working at a local bank. Brown v. Town of DeKalb, 519 F. Supp. 2d 635, 2007 U.S. Dist. LEXIS 67600 (S.D. Miss. 2007).

Based on a description of a car, an officer’s recognition of defendant from a bank videotape, and a description of persons who had committed several violent crimes, an officer’s decision to stop a vehicle and arrest the occupants was valid under Miss. Code Ann. §99-3-7. Perkins v. State, 863 So. 2d 47, 2003 Miss. LEXIS 657 (Miss. 2003).

Defendant’s warrantless arrest for murder by Tennessee police was supported by probable cause: he left Mississippi by bus on the day of the murder, the man who drove him to the bus station implicated himself in the crime, a bloody palm print at the crime scene suggested that the killer cut his right hand, and Tennessee police confirmed that defendant had an injured hand. Jones v. State, 841 So. 2d 115, 2003 Miss. LEXIS 134 (Miss. 2003).

Where a defendant was arrested without a warrant in Tennessee for a murder committed in Mississippi, the Tennessee police were entitled to rely on information Mississippi police relayed to them which established probable cause for the arrest. Jones v. State, 841 So. 2d 115, 2003 Miss. LEXIS 134 (Miss. 2003).

Police officer properly relied on computer report that indicated defendant’s driver’s license had been suspended and an information provided in a be-on-the-lookout-for-defendant order to make an initial detention in an investigatory traffic stop and subsequent arrest of defendant. Hodge v. State, 801 So. 2d 762, 2001 Miss. App. LEXIS 460 (Miss. Ct. App. 2001).

Probable cause existed for the arrest of the defendant where (1) the body of a young child was found by the police, (2) the autopsy showed that she had been assaulted by a man, and (3) the defendant babysat her the night before and was the last person to see her before she disappeared. Brewer v. State, 725 So. 2d 106, 1998 Miss. LEXIS 345 (Miss. 1998), cert. denied, 526 U.S. 1027, 119 S. Ct. 1270, 143 L. Ed. 2d 365, 1999 U.S. LEXIS 2032 (U.S. 1999).

Officers had probable cause to arrest defendant based on facts that they were investigating a bloody murder, person wearing red shirt and dark pants had been seen leaving the crime scene, defendant had been wearing an orange shirt and black shorts on the night of the murder, defendant was seen covered in blood and carrying a baseball bat, and victim had been hit with an object of some sort, and absence of corroboration of defendant’s claim that he had been in a fight. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

A sheriff had probable cause to arrest a defendant for capital murder and armed robbery without a warrant where the sheriff had information from two informants implicating the defendant and his codefendant, the sheriff knew from past experience that one of the informants was very reliable, and the informants accurately identified the codefendant as the “trigger man” which suggested some basis of knowledge and further reliability. Abram v. State, 606 So. 2d 1015, 1992 Miss. LEXIS 448 (Miss. 1992), overruled in part, Foster v. State, 961 So. 2d 670, 2007 Miss. LEXIS 315 (Miss. 2007), overruled in part, Holly v. Mississippi, 2011 U.S. App. LEXIS 24853 (5th Cir. Miss. Dec. 13, 2011).

There was sufficient probable cause to arrest a defendant for distribution of a controlled substance to an undercover informant, even though none of the arresting officers actually saw the drug transaction occur, where the conversation between the defendant and the undercover informant was being monitored by the officers during the transaction, the officers testified that they had surrounded the building in their cars to monitor the entrance and exit of anyone on the premises, the undercover informant gave the signal, “[t]his is good stuff” in order to alert the officers that the crime had occurred, and there was no one other than the defendant in close proximity to the informant when the officers arrived. Rogers v. State, 599 So. 2d 930, 1992 Miss. LEXIS 123 (Miss.), overruled in part, Mayfield v. State, 612 So. 2d 1120, 1992 Miss. LEXIS 861 (Miss. 1992).

A sheriff properly made a warrantless arrest and seizure of evidence from defendant, where the sheriff arrested defendant only after observing him drinking beer, weaving somewhat and having slurred speech. Bryant v. State, 427 So. 2d 131, 1983 Miss. LEXIS 2449 (Miss. 1983).

In a prosecution for burglary, the trial court properly denied a motion to suppress evidence seized after defendant’s warrantless arrest where probable cause for the arrest was established by the high crime area where the arrest took place, the early morning hour, the sound of breaking glass, the furtive actions of defendant (flight, disposal of a bag he was carrying, dubious explanation for his presence at the scene), the defendant’s nervousness, and the absence of others in the area. Smith v. State, 386 So. 2d 1117, 1980 Miss. LEXIS 2059 (Miss. 1980).

A police officer had probable cause to arrest a suspected rapist at the conclusion of a police-monitored telephone call to the victim five months following the rape, where police units were directed by radio to begin checking pay phones in a certain area and to be on the lookout for a man of a certain description, and where the officer observed defendant, who met the approximate description of the attacker, hanging up a pay phone at the same time he was being radioed that the caller was hanging up or about to hang up. Covan v. State, 374 So. 2d 833, 1979 Miss. LEXIS 2397 (Miss. 1979).

Where state police officer knew before the arrest that postal money orders had been stolen, that they were made out in a certain sum, that sum bore a certain name, that at least two and possibly three persons were involved, that they were driving a certain automobile, and he had a description of two of the suspects from a FBI wanted bulletin, he had a full description of the suspects from a motel operator, and he knew that an attempt had been made to pass one of the stolen money orders just 10 minutes before he came upon the suspected vehicle and passengers at another motel, and by his own eyes he knew that the vehicle, its passengers, and the man registering at the desk fit the given description, probable cause to arrest existed. United States v. Lyles, 488 F.2d 290, 1974 U.S. App. LEXIS 10522 (5th Cir. Miss.), cert. denied, 419 U.S. 851, 95 S. Ct. 92, 42 L. Ed. 2d 82, 1974 U.S. LEXIS 2556 (U.S. 1974).

Where there was no doubt that a crime had been committed, and defendant had been seen by numerous witnesses about the time the crime was committed near where footprints were found on an embankment going to the victim’s house, there existed probable cause of his arrest. Evans v. State, 275 So. 2d 83, 1973 Miss. LEXIS 1342 (Miss. 1973), but see Hall v. State, 427 So. 2d 957, 1983 Miss. LEXIS 2444 (Miss. 1983).

When a police officer observed that the defendant was wearing a concealed weapon it was his duty to arrest the defendant who was obviously committing a misdemeanor in his presence. Chandler v. State, 272 So. 2d 641, 1973 Miss. LEXIS 1537 (Miss. 1973).

Where an officer knew that the defendant had committed a misdemeanor and had also run up a large bill at a motel under a fictitious name, it was more likely that the defendant had committed the felony of false pretenses; Thus there was probable cause to arrest, based upon the misdemeanor charge. United States v. Atkinson, 450 F.2d 835, 1971 U.S. App. LEXIS 7680 (5th Cir. Miss. 1971), cert. denied, 406 U.S. 923, 92 S. Ct. 1790, 32 L. Ed. 2d 123, 1972 U.S. LEXIS 2689 (U.S. 1972).

Where police officers knew that a rape had been committed, and had a description of the assailant’s physical characteristics and clothing, which matched the appearance of the defendant and the clothing he was wearing, and where they observed that there was blood on the defendant’s trousers, and that his elbow had been skinned, the officers had ample probable cause to arrest the defendant without a warrant. Baylor v. State, 246 So. 2d 516, 1971 Miss. LEXIS 1402 (Miss. 1971).

Where immediately after the robbery of a store, persons were seen running from the direction of the store and then fleeing in a white automobile with California license plates, and the automobile appeared to have a burned place on the side, and shortly thereafter an automobile of such description was stopped at a highway patrol roadblock, the occupants of the automobile were lawfully arrested on ample probable cause. Dorsey v. State, 243 So. 2d 550, 1971 Miss. LEXIS 1514 (Miss. 1971).

Police officers who visited the scene of a burglary, received a description of a suspect, discovered an out-of-state automobile parked at the rear of the premises and later observed the defendant running from the wooded area at the rear of the burglarized premises, stop in some bushes, and then run toward the automobile, had probable cause to arrest the defendant whose appearance corresponded to the description which the officers had. Powe v. State, 235 So. 2d 920, 1970 Miss. LEXIS 1471 (Miss. 1970).

Where a police officer observed the defendant’s automobile making an illegal turn, and watched it as it proceeded in an erratic manner, crossing the center line and running off the pavement at times, and where, after stopping the automobile, the officer detected an odor of intoxicating liquor about the defendant, and noted that the defendant’s speech was impaired, the officer acted lawfully in stopping the automobile and arresting the defendant for making an illegal turn and for driving while under the influence of intoxicating liquor. Hogan v. State, 235 So. 2d 704, 1970 Miss. LEXIS 1462 (Miss. 1970), cert. denied, 401 U.S. 977, 91 S. Ct. 1204, 28 L. Ed. 2d 327, 1971 U.S. LEXIS 2712 (U.S. 1971).

Where an arresting officer knew that the robbery of a music store was committed by at least three Negro men, knew that a Negro man riding in an automobile of a given description had a few days previously acted so suspiciously at the store that the police were notified, and knew that a car of a given description had been operating in the area with a stolen license tag and that in the robbery a large number of coins had been stolen from the store, the officer had probable cause to stop an automobile answering the given description which he observed “riding low”, as though weighted down in the rear, some three hours after the robbery, and to arrest four male Negro occupants. Bogard v. State, 233 So. 2d 102, 1970 Miss. LEXIS 1646 (Miss. 1970).

Police officers, who were informed by a motel manager that the defendant had registered at the motel under the name of a certain person and had paid his bill with a credit card issued to that person and that upon phoning the issuer of the card the manager had been informed that the card was one reported stolen, and who found the defendant in the room registered in the name of that person, had reasonable ground under Mississippi law to believe that a forgery had been committed in connection with the use of a stolen credit card and that the defendant had committed it, so that they could lawfully arrest the defendant without a warrant. United States v. Lowery, 436 F.2d 1171, 1970 U.S. App. LEXIS 5996 (5th Cir. Miss. 1970), cert. denied, 401 U.S. 978, 91 S. Ct. 1208, 28 L. Ed. 2d 329, 1971 U.S. LEXIS 2727 (U.S. 1971).

After the defendant had confessed to an indictable offense, the interrogating officer had sufficient grounds upon which to arrest him and thereafter to take the picture and fingerprints of the defendant. Smith v. State, 229 So. 2d 551, 1969 Miss. LEXIS 1246 (Miss. 1969).

Where the arresting officer had been informed by one of the participants in a drugstore robbery of the identity and whereabouts of the defendant and the remainder of the stolen goods and drugs, the officer had reasonable ground to suspect and believe that the defendant had committed the felony of illegal possession of narcotic drugs and, not only had the right to arrest the defendant but also to search his motel room as an incident of the arrest. Meeks v. Hughes, 228 So. 2d 582, 1969 Miss. LEXIS 1391 (Miss. 1969).

The presence of narcotics in bottles which the defendant dropped when confronted by officers conducting an investigation of the burglary of a drugstore, provided the officers with probable cause to arrest the defendant. Branning v. State, 222 So. 2d 667, 1969 Miss. LEXIS 1539 (Miss. 1969).

When the sheriff of Forrest County discovered that the defendant was aiding a felon to escape, he had “reasonable cause ” and sufficient grounds to believe that the defendant had taken the fleeing felon out of Forrest County knowing that he was a fleeing felon, and, as a private person, the sheriff had a right to arrest the defendant in Stone County on probable cause. Brown v. State, 217 So. 2d 521, 1969 Miss. LEXIS 1569 (Miss. 1969).

State police officers’ knowledge that defendant had offered a used pickup truck for which he possessed no evidence of title to a dealer at a ridiculously low price constituted probable cause, and supported their arrest of the defendant without a warrant when they spotted him driving a vehicle whose description corresponded to that of the truck he had previously offered for sale. Lathers v. United States, 396 F.2d 524, 1968 U.S. App. LEXIS 6801 (5th Cir. Miss. 1968).

A police officer, reliably informed that a felony had occurred and provided with a description of the automobile observed at the scene of the crime had probable cause to stop a vehicle answering the general description and to arrest its occupants without a warrant; and the examination of the operator’s license of the driver did not constitute a pretext for stopping the car but was a natural incident to the arrest. McCollum v. State, 197 So. 2d 252, 1967 Miss. LEXIS 1523 (Miss. 1967).

Sheriff’s search of defendant’s premises was not unreasonable and he could have arrested the defendant without a warrant had he been at home, and his testimony in homicide prosecution as to what he found at the scene of the crime on defendant’s premises without a search warrant was properly admitted, where deceased’s body was found by the road side and sheriff followed trail from body to the home of accused where he discovered that the yard had recently been thoroughly cleaned, blood near the front steps covered with ashes, a smouldering fire in the back yard wherein many things, including clothes, had been burned, and blood stained blocks of wood hidden in a hollow tree, since the sheriff had probable cause to believe that a felony had been committed. Leflore v. State, 197 Miss. 337, 22 So. 2d 368, 1945 Miss. LEXIS 294 (Miss. 1945).

Firing into house in nighttime with knowledge that house was occupied and that persons were sleeping therein was done in commission of act evincing a reckless disregard for human life, and with intent to injure some person therein, and town marshal living in house had such probable cause to believe that person firing gun had committed felony as would warrant marshal in arresting person without warrant. Lee v. State, 179 Miss. 122, 174 So. 85, 1937 Miss. LEXIS 14 (Miss. 1937).

Evidence that defendant checked out of hotel on night of burglary and had driven about town late at night, and had applied to physician for narcotics, showed probable cause for arrest without warrant for burglarizing drug store. Millette v. State, 167 Miss. 172, 148 So. 788, 1933 Miss. LEXIS 123 (Miss. 1933).

11. —Lacking in particular situations.

The defendant’s arrest was illegal where the only information upon which the arresting officer acted was that a young child was missing and that the defendant babysat the child the night before; however, the improper admission of evidence recovered after the arrest was harmless as such evidence added absolutely nothing inculpatory to the case. Brewer v. State, 725 So. 2d 106, 1998 Miss. LEXIS 345 (Miss. 1998), cert. denied, 526 U.S. 1027, 119 S. Ct. 1270, 143 L. Ed. 2d 365, 1999 U.S. LEXIS 2032 (U.S. 1999).

In a prosecution for burglary of a courthouse, the arresting officer was without reasonable grounds to “suspect and believe” that defendant had committed the “felony”, as required by this section, where a third party was taken into custody after a second officer heard strange noises coming from a vacant home next to the courthouse, the second officer managed to effect an arrest of one of two men seen at the house, the first officer knew that a large sum of cash was found on the person of the third party arrested at the house, the first officer subsequently returned to the area of the abandoned house where he observed defendant lawfully driving at a point about 100 yards from where the arrest of the third party had occurred, and such officer then arrested defendant without any knowledge that the courthouse had been burglarized. Rome v. State, 348 So. 2d 1026, 1977 Miss. LEXIS 2120 (Miss. 1977).

Where probable cause for arrest terminated when a gun barrel was measured and found to be lawful, the subsequent discovery of contraband drugs on the arrested person was the result of an illegal search and it would not be retroactive to strengthen in any way the factors indicative of probable cause existing at the time of the arrest, and the drugs were not admissible in evidence. Carroll v. Carroll, 277 So. 2d 435, 1973 Miss. LEXIS 1416 (Miss. 1973).

The fact that the sheriff looked through the window of an automobile and observed unconcealed ordinary tools lying on the back seat and the floor board did not constitute the crime of possession of burglary tools and did not constitute probable cause for the search and seizure of the automobile and the arrest of the defendant and his companions. Pamphlet v. State, 271 So. 2d 403, 1972 Miss. LEXIS 1274 (Miss. 1972).

The fact that a person had been seen in drug store some time prior to the time the store was burglarized did not constitute reasonable ground for believing that he had committed the burglary, so as to authorize the officer to arrest the suspect without warrant and seize narcotics found in possession. Branning v. State, 215 Miss. 223, 60 So. 2d 633, 1952 Miss. LEXIS 556 (Miss. 1952).

Where a deputy sheriff, having no probable cause to believe that car was being used in transportation of liquor, and without a search warrant, searched the car, the car owner was entitled to damages. State use of Brooks v. Wynn, 213 Miss. 306, 56 So. 2d 824, 1952 Miss. LEXIS 365 (Miss. 1952).

Arrest without warrant of one on whom could be detected the odor of whiskey, but who was not under the influence of intoxicants, was not justified either because he was boisterous in a cafe or carried a small package of meat under his arm which the arresting officer may have thought contained intoxicating liquor. Shedd v. State, 203 Miss. 544, 33 So. 2d 816, 1948 Miss. LEXIS 305 (Miss. 1948).

A sheriff having reliable information that a felony had been committed at a house was not justified in concluding that there was probable cause to believe the the Negroes who ran from the house when the sheriff and his posse approached the next morning, because they ran, had participated in the felony. Hubbard v. State, 202 Miss. 229, 30 So. 2d 901, 1947 Miss. LEXIS 263 (Miss. 1947).

12. Arrest by private person.

In a suit by plaintiff against defendants, a casino and one of its employees, the circuit court did not err in granting defendants’ motion for a directed verdict on plaintiff’s intentional torts claims, including assault and battery by the casino and its employee because plaintiff was threatened only with removal and arrest; the casino had a right to remove him and probable cause to initiate his arrest; and there was a valid citizen’s arrest by the employee, which shielded the employee from civil liability. Lee v. MGM Resorts Miss., Inc., 200 So.3d 1129, 2016 Miss. App. LEXIS 57 (Miss. Ct. App.), cert. denied, 203 So.3d 598, 2016 Miss. LEXIS 401 (Miss. 2016).

Florida procedure whereby person arrested without warrant and charged by information was denied judicial determination of probable cause for pretrial restraint was held violative of the Fourth Amendment to the United States Constitution. Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54, 1975 U.S. LEXIS 29 (U.S. 1975).

A private citizen cannot arrest without a warrant for a misdemeanor theretofor committed unless pursuit for the purpose of arrest was begun immediately, since the power to arrest without a warrant for a breach of the peace or other minor offense is given in order to maintain the public peace, and it therefore ceases when the offense is an accomplished fact which can no longer be prevented and public order has been restored. Protective Life Ins. Co. v. Spears, 231 So. 2d 510, 1970 Miss. LEXIS 1599 (Miss. 1970).

Where officers had probable cause to believe that a felony had been committed and that the defendant was the guilty party their arrest of the defendant in a county beyond their territorial jurisdiction was lawful since, under the facts stated, a private citizen had the right to make the arrest. Nash v. State, 207 So. 2d 104, 1968 Miss. LEXIS 1603 (Miss. 1968).

Statements by several persons present in a poolroom that a certain person was seen, while the one in charge was absent, to go behind the counter where a cashbox was kept, constitute reasonable ground to believe that money found missing was taken by him, so as to give the poolroom proprietor the right to arrest him. Williams v. Clark, 236 Miss. 423, 110 So. 2d 365, 1959 Miss. LEXIS 335 (Miss. 1959).

An arrest by the owner of money of one whom he had reasonable cause to believe to have taken it from a cash-box, cannot be justified as an exercise of the statutory right to arrest, where such owner’s purpose in seeking the other out was to recover the money, the arrest was made only after he failed to do so, and he did not inform the person arrested of the object and cause of the arrest. Williams v. Clark, 236 Miss. 423, 110 So. 2d 365, 1959 Miss. LEXIS 335 (Miss. 1959).

In order to justify an arrest for a misdemeanor, by a private person or an officer, without a warrant, the entire body of the crime must have taken place in the presence, or the hearing and presence, of such private person or officer; a necessary element of the crime cannot be supplied either by the confession of the accused or by information from an outside source. Walker v. State, 188 Miss. 177, 189 So. 804, 1939 Miss. LEXIS 2 (Miss. 1939).

A statute authorizing a private person to arrest without a warrant a person who has committed a felony, though not in his presence, requires person to have probable cause to believe that a felony has been committed and that person arrested is guilty one. Howell v. Viener, 179 Miss. 872, 176 So. 731, 1937 Miss. LEXIS 82 (Miss. 1937).

13. Admissibility of evidence.

Defendant’s conviction for the burglary of a dwelling was proper where the trial judge did not abuse his discretion in admitting the testimony of the deputy about his conversation with or questioning of defendant prior to the arrest because defendant was not under arrest at the time he was initially questioned by the deputy. Henderson v. State, 853 So. 2d 141, 2003 Miss. App. LEXIS 497 (Miss. Ct. App. 2003), cert. denied, 864 So. 2d 282, 2004 Miss. LEXIS 60 (Miss. 2004).

The defendant’s arrest was illegal where the only information upon which the arresting officer acted was that a young child was missing and that the defendant babysat the child the night before; however, the improper admission of evidence recovered after the arrest was harmless as such evidence added absolutely nothing inculpatory to the case. Brewer v. State, 725 So. 2d 106, 1998 Miss. LEXIS 345 (Miss. 1998), cert. denied, 526 U.S. 1027, 119 S. Ct. 1270, 143 L. Ed. 2d 365, 1999 U.S. LEXIS 2032 (U.S. 1999).

Defendant’s motion to suppress should have been granted and contraband found in his automobile should not have been admitted at trial over defendant’s objection, where his arrest, which was without warrant, preceded the discovery of marijuana in his automobile, and was made at time when officers had less than probable cause to arrest, was illegal. Floyd v. State, 500 So. 2d 989, 1986 Miss. LEXIS 2787 (Miss. 1986), cert. denied, 484 U.S. 816, 108 S. Ct. 68, 98 L. Ed. 2d 32, 1987 U.S. LEXIS 3558 (U.S. 1987).

Where a crime had been committed, the persons who committed the crime were fleeing from the scene of the crime in an automobile, the defendants were apprehended because of a traffic violation, and when it appeared that they were apparently the persons who were said to have committed the crime, it became the duty of the officer to detain them, and when they were identified, it became the duty of the sheriff to arrest them, and after they were arrested, it was his duty to search for weapons, evidence of the crime for which they were arrested, and means of escape, or other means by which they could injure themselves or others, and any other evidence obtained by the search was admissible in the trial. Chapman v. State, 284 So. 2d 525, 1973 Miss. LEXIS 1265 (Miss. 1973).

Where probable cause for arrest terminated when a gun barrel was measured and found to be lawful, the subsequent discovery of contraband drugs on the arrested person was the result of an illegal search and it would not be retroactive to strengthen in any way the factors indicative of probable cause existing at the time of the arrest, and the drugs were not admissible in evidence. Carroll v. Carroll, 277 So. 2d 435, 1973 Miss. LEXIS 1416 (Miss. 1973).

When a crime had recently been committed in the area and a police officer came upon the defendant and observed that he was wearing a concealed weapon, the officer had no choice but to arrest the defendant or prevent him from using his gun and to prevent a breach of the peace; and evidence obtained from a search of the defendant was admissible in court. Chandler v. State, 272 So. 2d 641, 1973 Miss. LEXIS 1537 (Miss. 1973).

Where an accused had been observed sitting in his vehicle in the parking area of a restaurant with his head down on the steering wheel, and a sheriff upon being notified of this, pursued the defendant in his vehicle after the defendant left the restaurant area, the sheriff did not have probable cause to arrest the defendant at the time he began his pursuit in his own unmarked vehicle, and proof of the defendant’s conduct in attempting to elude the sheriff and in exchanging shots with the sheriff should have been excluded in a prosecution for assault with a deadly weapon. Pollard v. State, 233 So. 2d 792, 1970 Miss. LEXIS 1674 (Miss. 1970).

Where the defendant was arrested in his automobile by city police outside the city limits, on a misdemeanor charge of switching automobile tags, and later, while defendant was incarcerated, the police conducted searches of the defendant’s automobile without having obtained a search warrant, the searches were unlawful, and evidence seized in such searches was inadmissible in a prosecution of the defendant on a charge of felonious possession of narcotic drugs. Mellen v. Mellen, 230 So. 2d 209, 1970 Miss. LEXIS 1540 (Miss. 1970).

Where a police officer had probable cause to arrest the defendant, a pistol which the defendant voluntarily relinquished upon the officer’s request, was properly admitted into evidence at the murder prosecution. Ray v. R. G. Le Tourneau, Inc., 220 So. 2d 837, 1969 Miss. LEXIS 1481 (Miss. 1969).

Where a police officer, informed that there had been a shooting, talked to the victim of the shooting, examined the premises where the shooting was said to have occurred, and talked to witnesses present at the time of the shooting before arresting the defendant, the officer should have been permitted to testify as to the facts which prompted him to make the arrest. Ray v. R. G. Le Tourneau, Inc., 220 So. 2d 837, 1969 Miss. LEXIS 1481 (Miss. 1969).

A pistol seized in the course of an unlawful search of defendant’s automobile should not have been admitted in evidence on his trial for possession of a concealed weapon. Butler v. State, 212 So. 2d 573, 1968 Miss. LEXIS 1289 (Miss. 1968).

The temporary detention of a defendant for fingerprinting in the course of an investigation without his being booked, charged, or incarcerated did not constitute an arrest, and evidence derived therefrom was not inadmissible at the defendant’s trial on charges of burglary and assault and battery with intent to kill. Reeves v. Reeves, 210 So. 2d 780, 1968 Miss. LEXIS 1521 (Miss. 1968).

Nine one dollar bills, unusual in that the inscription “In God We Trust” was not imprinted on them, removed from the person of the defendant following his arrest without a warrant by an officer who had reasonable cause to believe that a felony had been committed and reasonable cause to believe that the defendant committed it, were admissible in evidence. Bradshaw v. State, 192 So. 2d 387, 1966 Miss. LEXIS 1248 (Miss. 1966), cert. denied, 389 U.S. 941, 88 S. Ct. 299, 19 L. Ed. 2d 293, 1967 U.S. LEXIS 397 (U.S. 1967).

Where defendant testified that he was not informed by the arresting officer of the object and cause of arrest the burden shifted to the state to prove that there was probable cause for making a charge against him, and where the prosecution introduced no testimony whatsoever to refute the prima facie case of illegal detention and arrest made out by the defendant the testimony of one of the arresting officers as to certain admissions made to him by the defendant should have been excluded. Clay v. State, 184 So. 2d 403, 1966 Miss. LEXIS 1465 (Miss. 1966).

Where a highway patrolman, who had ample information that the crime of rape had been committed and knew that a warrant had been issued, after being stopped by a hitchhiker, whose description fitted the description of the rapist, arrested and searched the hitchhiker, the arrest, being lawful, the search incident thereto was likewise lawful, and the evidence obtained thereby was admissible. Shay v. State, 229 Miss. 186, 90 So. 2d 209, 1956 Miss. LEXIS 599 (Miss. 1956).

If an arrest is unlawful, then the search is unlawful and the evidence obtained in the search is not admissible. Smith v. State, 228 Miss. 476, 87 So. 2d 917, 1956 Miss. LEXIS 535 (Miss. 1956).

Where a deputy sheriff, in whose presence the defendant sold intoxicating liquors, did not make the arrest when he saw the offense committed, but came back later to make the arrest, the deputy sheriff lost authority to arrest without a warrant and the evidence procured as the result was illegal and not permissible. Smith v. State, 228 Miss. 476, 87 So. 2d 917, 1956 Miss. LEXIS 535 (Miss. 1956).

Where it was reported to officers that a man of certain description had attempted to steal an automobile and defendant answered the description and the officers had good ground to believe that a felony had been committed, and the defendant was person who committed the crime, and consequently arrested the defendant without warrant and searched him, the evidence obtained incident to the search was admissible in prosecution for murder. Wheeler v. State, 219 Miss. 129, 63 So. 2d 517, 1953 Miss. LEXIS 377 (Miss.), cert. denied, 346 U.S. 852, 74 S. Ct. 67, 98 L. Ed. 367, 1953 U.S. LEXIS 1649 (U.S. 1953).

Where two officers went upon the premises of the defendant without a search warrant and purchased intoxicating liquor, this evidence was not obtained by illegal search and was not excludable on the ground of unlawful search and seizure because no search was involved. Peebles v. State, 57 So. 2d 263 (Miss. 1952).

Where a warrant entitled the officer to search outhouse of owner and a defendant lived in the block house and ran a cafe on the land of the owner, also paid taxes and this house was between 100 and 200 yards away from house in which owner resided and operated the store, the house used by the defendant was not an outhouse, and the search of the premises, where whisky was found was illegal and the evidence was inadmissible. Thompson v. State, 213 Miss. 325, 56 So. 2d 808, 1952 Miss. LEXIS 369 (Miss. 1952).

An arrest by sheriff without a warrant of a person who has committed no crime in his presence is illegal, and a search of the person is likewise illegal and the evidence obtained thereby is inadmissible. Lewis v. State, 198 Miss. 767, 23 So. 2d 401, 1945 Miss. LEXIS 245 (Miss. 1945).

Arrest of defendant and the search of her person by a sheriff without a warrant therefor was illegal, and consequently evidence that he found on her person a key which fitted the lock of the door to a room in which whisky was found was inadmissible in prosecution for unlawful possession of whisky, notwithstanding that the room was in a house owned by the defendant and for which the sheriff had a proper search warrant, where the defendant lived elsewhere. Lewis v. State, 198 Miss. 767, 23 So. 2d 401, 1945 Miss. LEXIS 245 (Miss. 1945).

Arrest of defendants, charged with larceny, for trespass not committed in officer’s presence, held unlawful, and therefore evidence obtained by search of automobile was inadmissible in larceny prosecution. Fletcher v. State, 159 Miss. 41, 131 So. 251, 1930 Miss. LEXIS 363 (Miss. 1930).

An officer who unlawfully enters the premises of a person charged with a misdemeanor not committed in his presence and who has no warrant for the arrest and who finds liquor in said person’s possession cannot afterwards give evidence of finding said liquor over the defendant’s objection. Iupe v. State, 140 Miss. 279, 105 So. 520, 1925 Miss. LEXIS 260 (Miss. 1925).

14. Instructions.

In a prosecution for aggravated assault arising out of an attack upon a police constable who was in the process of arresting the defendant’s brother-in-law, the trial court erred in refusing an instruction of the defense that a person has the right to use reasonable force to resist an unlawful arrest or to aid another in resisting an unlawful arrest where the evidence established that the constable neither had possession of a warrant nor had informed the brother-in-law of the reason for his arrest and where the prosecution failed to present any evidence to show that there was probable cause for the arrest and neither the affidavit nor the arrest warrant was included in the record. Boyd v. State, 406 So. 2d 824, 1981 Miss. LEXIS 2438 (Miss. 1981).

Instruction that town marshal did an unlawful act when he fired into automobile while attempting to arrest occupants who had immediately prior thereto fired into marshal’s house with reckless disregard of human life and with intent to injure some person therein held reversible error, since marshal was warranted in making arrest, under statutes, without warrant. Lee v. State, 179 Miss. 122, 174 So. 85, 1937 Miss. LEXIS 14 (Miss. 1937).

In action for false imprisonment of plaintiff alleged to be drunk and disorderly, instructions that if officers had good reason to believe plaintiff was committing crime, they were not liable, held properly refused. Carlisle v. Laurel, 156 Miss. 410, 124 So. 786, 1929 Miss. LEXIS 366 (Miss. 1929).

In action for false imprisonment, instruction to find for plaintiff, unless plaintiff committed crime in defendant’s presence, held not too narrow in view of other instructions. Harris v. Sims, 155 Miss. 207, 124 So. 325, 1929 Miss. LEXIS 276 (Miss. 1929).

Refusal of instructions relating to manslaughter if defendant killed deceased while resisting unlawful search held not erroneous, in view of defense. Richardson v. State, 153 Miss. 654, 121 So. 284, 1929 Miss. LEXIS 67 (Miss. 1929).

15. Third parties.

Defendant’s belief that police conduct ultimately might be found to be unconstitutional did not give him right to refuse requests of police officers for entry, search, and arrest of arrestee, within arrestee’s mother’s house where defendant was a guest. Bovan v. State, 706 So. 2d 254, 1997 Miss. App. LEXIS 599 (Miss. Ct. App. 1997).

Observers of progress of arguably illegal police conduct do not have independent right to interfere with it. Bovan v. State, 706 So. 2d 254, 1997 Miss. App. LEXIS 599 (Miss. Ct. App. 1997).

Fundamental correctness of planned police conduct is not for observer-citizen to decide; proper place to examine reasonableness of ultimate police action is in court. Bovan v. State, 706 So. 2d 254, 1997 Miss. App. LEXIS 599 (Miss. Ct. App. 1997).

16. Jurisdiction.

The supreme court has initial jurisdiction over a post-conviction proceeding where that court is the one that last exercised jurisdiction in the case. Perry v. State, 759 So. 2d 1269, 2000 Miss. App. LEXIS 256 (Miss. Ct. App. 2000).

17. Illustrative cases.

Youth court did not err in adjudicating defendant juvenile a delinquent child for resisting arrest because the officer’s actions in arresting defendant for disorderly conduct were lawful as defendant failed to obey the officer’s commands to show his hands or to place his hands on the car under circumstances that could lead to a breach of the peace; and the evidence introduced at the delinquency hearing showed that defendant resisted arrest as he struggled and would not put his arms behind his back, and some of the other officers ultimately tased defendant to gain compliance. S.M.K.S. v. Youth Court of Union County, 155 So.3d 747, 2015 Miss. LEXIS 39 (Miss. 2015).

OPINIONS OF THE ATTORNEY GENERAL

As an officer can usually make misdemeanor arrests only when a crime occurred in his presence, a merchant arresting a shoplifter should, instead of turning the arrest over to an officer, file an affidavit charging the accused with shoplifting. Henderson, Feb. 12, 1992, A.G. Op. #91-0946.

If judge is satisfied that sufficient evidence has been presented to establish probable cause, then judge may sign original warrant and FAX copy to law enforcement, and FAX would constitute official channels communication; original warrant should be delivered to clerk of court as soon as possible. Bankston, Oct. 28, 1992, A.G. Op. #92-0807.

This section states that officer may only make warrantless arrest for misdemeanor when misdemeanor has been committed in presence of officer; officer must have warrant in order to arrest for misdemeanor that was not committed in his or her presence, except for domestic violence crimes pursuant to subsection 3 of this section. Gentry, June 7, 1993, A.G. Op. #93-0362.

Best procedure to follow in most cases where security guard witnesses crime is for guard to file affidavit against perpetrator in municipal or justice court and then if court believes that probable cause exists, court may then issue warrant for such person’s arrest and any law enforcement officer would then be fully authorized to make arrest. Norman, August 4, 1993, A.G. Op. #93-0466.

An officer who has probable cause to believe a felony was committed by a certain individual may make an arrest without a warrant. Graham, Nov. 14, 1997, A.G. Op. #97-0726.

An officer who has probable cause to believe a felony was committed by a certain individual may make an arrest without a warrant. King, May 8, 1998, A.G. Op. #98-0253.

The statute provides the powers of arrest for law enforcement officers and private citizens, which would include private security officers. Conerly, July 24, 1998, A.G. Op. #98-0394.

While officers are mandated to make an arrest if the incident occurred within 24 hours, nothing specifies that the sworn affidavit or complaint must be filed within the 24-hour time period as well; thus, the officer may still sign an affidavit, and the arrest is still valid, even though 24 hours may have passed since the time of the arrest. Anderton, March 17, 2000, A.G. Op. #2000-0128.

An officer may not make a misdemeanor arrest without a warrant being issued unless the offense is committed in the officer’s presence or the offense is an act of domestic violence that has occurred within 24 hours of the arrest. Stewart, March 24, 2000, A.G. Op. #2000-0145.

“Family or household member”, as that term is used in Sections 97-3-7 and 99-3-7, includes individuals who are married, were married, or who live together in a relationship, although not married; further, it is not limited to a blood relationship and can relate to an in-law relationship or other relatives of one spouse living in the household; however, “boyfriend-girlfriend” (or any other variation of this) relationships are not included in the definition of “family or household member”, unless the persons reside or resided together as spouses; finally, although not falling into the definition of “family or household member”, if the individuals have a biological or legally adopted child between them, the relationship is also protected. Carrubba, Oct. 6, 2000, A.G. Op. #2000-0588.

The violation of a protective order issued by a municipal court is sufficient to support a warrantless arrest of the violator; further, the relevant statutory language is broadly drafted and includes violation of a restraining order issued during a criminal prosecution for a domestic violence offense by any court with jurisdiction over the offense. Carrubba, Oct. 6, 2000, A.G. Op. #2000-0588.

The statute places the burden on law enforcement to file the charges following a warrantless arrest. Carrubba, Oct. 6, 2000, A.G. Op. #2000-0588.

Any individual violating a restraining order or injunction issued under the Protection from Domestic Abuse Law or a similar order from a foreign court may be arrested without a warrant and charged with a violation of §93-21-21. Dantin, Apr. 26, 2002, A.G. Op. #02-0212.

When a security guard or private citizen makes an arrest pursuant to this section, it is possible, although not mandated, for a law enforcement officer to continue that arrest. The law enforcement officer could transport the detainee to an appropriate location, i.e., justice court or jail and secure a warrant based on the citizen’s affidavit or release the detainee if the court does not find probable cause to issue a warrant. Beshears, May 28, 2004, A.G. Op. 04-0219.

Police officers may make arrests on misdemeanor warrants without having the warrants in hand and officers may also arrest persons on outstanding felony warrants without possessing the actual warrant. Daughdrill, July 22, 2005, A.G. Op. 05-0308.

RESEARCH REFERENCES

ALR.

Peace officer’s delay in making arrest without a warrant for misdemeanor or breach of peace. 58 A.L.R.2d 1056.

Police officer’s power to enter private house or inclosure to make arrest, without a warrant, for a suspected misdemeanor. 76 A.L.R.2d 1432.

Validity, in state criminal trial, of arrest without warrant by identified peace officer outside of jurisdiction, when not in fresh pursuit. 34 A.L.R.4th 328.

Liability of police or peace officers for false arrest, imprisonment, or malicious prosecution as affected by claim of suppression, failure to disclose, or failure to investigate exculpatory evidence. 81 A.L.R.4th 1031.

Burden of proof in civil action for using unreasonable force in making arrest as to reasonableness of force used. 82 A.L.R.4th 598.

Application of “plain feel” exception to warrant requirements–state cases. 50 A.L.R.5th 581.

Am. Jur.

5 Am. Jur. 2d, Arrest §§ 30 et seq.

9 Am. Jur. Proof of Facts 2d, Police Officer’s Use of Excessive Force in Making Arrest, §§ 12 et seq. (proof that police officer, in making an arrest for a misdemeanor and later a felony, used excessive force).

44 Am. Jur. Proof of Facts 2d 229, Lack of Probable Cause for Warrantless Arrest.

Lawyers’ Edition.

What constitutes probable cause for arrest. 28 L. Ed. 2d 978.

Law Reviews.

1982 Mississippi Supreme Court Review: Criminal Law and Procedure: Amendments to the Uniform Criminal Rules of Circuit Court Practice. 53 Miss. L. J. 162, March 1983.

Practice References.

Adams and Blinka, Prosecutor’s Manual for Arrest, Search and Seizure (Michie).

John Wesley Hall, Search and Seizure, Third Edition (Michie).

OPINIONS OF THE ATTORNEY GENERAL

A criminal warrant does not have a return date. However, if a defendant’s bond is made returnable to a plea date, such a date would constitute the return day of process. If a defendant pleads not guilty on the plea date, the court should inquire if the defendant demands a jury trial. If the bond is returnable to a trial date, the trial date is considered the return day of process and the defendant could demand a jury trial at any time until the trial begins. Hood, Sept. 17, 2004, A.G. Op. 04-0455.

RESEARCH REFERENCES

Practice References.

Adams and Blinka, Prosecutor’s Manual for Arrest, Search and Seizure (Michie).

John Wesley Hall, Search and Seizure, Third Edition (Michie).

JUDICIAL DECISIONS

1. In general.

2. Hot pursuit.

1. In general.

Where a police officer was pursuing the defendant in an effort to arrest him for an offense committed in the officer’s presence, the officer had the right to enter the defendant’s house in continuance of the hot pursuit of the defendant and to use force, if necessary, in order to do so. Watts v. State, 305 So. 2d 348, 1974 Miss. LEXIS 1479 (Miss. 1974).

In his trial for murder of a police officer, defendant’s contention that the homicide was justifiable because he was resisting an unlawful arrest and reasonably believed himself to be in imminent danger of great bodily harm was not supported by the evidence, where the law officers had sufficient grounds to believe that fugitives for whom they had arrest warrants were located in the house in which defendant was staying and fired gas into the house only after a reasonable time had elapsed following the announcements requesting the occupants to vacate the house; failure of the occupants to exit as requested demonstrated their refusal to cooperate with the arresting officers who had identified themselves and stated their purpose, and the officers were warranted in using reasonable force and means to execute the arrest warrants. Norman v. State, 302 So. 2d 254, 1974 Miss. LEXIS 1416 (Miss. 1974), cert. denied, 421 U.S. 966, 95 S. Ct. 1956, 44 L. Ed. 2d 453, 1975 U.S. LEXIS 1588 (U.S. 1975).

When the sheriff of Stone County in his search for a felon who had fled from Forrest County found that the suspect was in a room in a motel in his jurisdiction, he had probable cause to enter the fleeing felon’s motel room and arrest him, and it became his duty to make a search of the prisoner, his personal effects, and the immediate surroundings where the arrest was made. Brown v. State, 217 So. 2d 521, 1969 Miss. LEXIS 1569 (Miss. 1969).

An officer cannot enter the home of one charged with crime after the defendant has been arrested and incarcerated in jail without his consent or without a valid search warrant. May v. State, 199 So. 2d 635, 1967 Miss. LEXIS 1308 (Miss. 1967).

When an officer is required to go into a dwelling house or a place for the purpose of making an arrest, he may observe the surrounding scene of the alleged crime, and make a search of the person arrested and of the surroundings, and in so doing he may take pictures of the area, and may seize elements of the crime, including weapons, and articles that may be employed by the offender to make an escape. May v. State, 199 So. 2d 635, 1967 Miss. LEXIS 1308 (Miss. 1967).

Evidence of killing of constable, when constable, armed with void search warrant, after search had been made, forcibly entered defendant’s house without permission and without stating his purpose, held not to authorize conviction for crime higher than manslaughter. Jones v. State, 170 Miss. 581, 155 So. 430, 1934 Miss. LEXIS 176 (Miss. 1934).

A person having a warrant for the arrest of a criminal may enter any house in which he has reason to believe and does believe said criminal is, without being liable to the owner of the premises searched. Monette v. Toney, 119 Miss. 846, 81 So. 593, 1919 Miss. LEXIS 183 (Miss. 1919).

2. Hot pursuit.

Detective had both exigent circumstances and probable cause to make the warrantless entry into the residence and arrest defendant after investigating the reliable anonymous tip concerning drug activity and going in hot pursuit of defendant after he fled from lawful questioning about that tip. Cooper v. State, 145 So.3d 1219, 2013 Miss. App. LEXIS 686 (Miss. Ct. App. 2013), aff'd, 145 So.3d 1164, 2014 Miss. LEXIS 433 (Miss. 2014).

RESEARCH REFERENCES

ALR.

Police officer’s to enter private house or inclosure to make arrest, without a warrant, for a suspected misdemeanor. 76 A.L.R.2d 1432.

Am. Jur.

5 Am. Jur. 2d, Arrest §§ 67 et seq.

CJS.

6A C.J.S., Arrest §§ 10 et seq.

Practice References.

Adams and Blinka, Prosecutor’s Manual for Arrest, Search and Seizure (Michie).

John Wesley Hall, Search and Seizure, Third Edition (Michie).

Cross References —

Arrest of convicted offender receiving parole or suspended sentence who fails to surrender himself for execution of sentence on expiration of parole or suspended sentence, see §99-19-27.

Arrest of fugitives from justice in other states, see §99-21-1.

JUDICIAL DECISIONS

1. In general.

Where officers had probable cause to believe that a felony had been committed and that the defendant was the guilty party their arrest of the defendant in a county beyond their territorial jurisdiction was lawful since, under the facts stated, a private citizen had the right to make the arrest. Nash v. State, 207 So. 2d 104, 1968 Miss. LEXIS 1603 (Miss. 1968).

Since the functions of the sheriff are confined to his own county, except in the case of the pursuit of an escaping offender, there can be no recovery on a sheriff’s bond for the alleged unlawful treatment of one accused of crime apprehended in another state where such treatment and the event complained of occurred in such other state. McLean v. Mississippi, 96 F.2d 741, 1938 U.S. App. LEXIS 3552 (5th Cir. Miss.), cert. denied, 305 U.S. 623, 59 S. Ct. 84, 83 L. Ed. 399, 1938 U.S. LEXIS 805 (U.S. 1938), disapproved, Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 60 S. Ct. 153, 84 L. Ed. 167, 1939 U.S. LEXIS 77 (U.S. 1939).

A sheriff of one county who is not in pursuit of an escaping offender located in another county has no authority to go out of his county, carry a deadly weapon concealed and arrest such offender. Shirley v. State, 100 Miss. 799, 57 So. 221, 1911 Miss. LEXIS 75 (Miss. 1911).

OPINIONS OF THE ATTORNEY GENERAL

Under Section 99-3-13, a municipal Police Department may authorize a municipal police officer that has also been sworn as a deputy sheriff to respond to a request for assistance by the Sheriff’s Department in his capacity as a deputy sheriff. Turner, May 17, 1995, A.G. Op. #95-0247.

Although police officers of a municipality have no police authority outside the municipal limits unless acting under the hot pursuit doctrine, a city and county may enter into an interlocal agreement where the municipal police officers are also sworn as deputy sheriffs and thereby may respond to a request for assistance by the Sheriff’s Department in his capacity as a deputy sheriff. Moore, July 10, 1998, A.G. Op. #98-0376.

RESEARCH REFERENCES

ALR.

Validity, in state criminal trial, of arrest without warrant by identified peace officer outside of jurisdiction, when not in fresh pursuit. 34 A.L.R.4th 328.

Am. Jur.

5 Am. Jur. 2d, Arrest §§ 27 et seq., 50 et seq.

Practice References.

Adams and Blinka, Prosecutor’s Manual for Arrest, Search and Seizure (Michie).

John Wesley Hall, Search and Seizure, Third Edition (Michie).

Cross References —

Escape of prisoners, see §§97-9-27 et seq.

Arrest of convicted offender receiving parole or suspended sentence who fails to surrender himself for execution of sentence on expiration of parole or suspended sentence, see §99-19-27.

Arrest of fugitives from justice in other states, see §99-21-1.

Arrests without a warrant, see Miss. Unif. Cir. & County Ct. Prac. R. 6.03.

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d, Arrest § 39.

CJS.

6A C.J.S., Arrest §§ 17 et seq.

Practice References.

Adams and Blinka, Prosecutor’s Manual for Arrest, Search and Seizure (Michie).

John Wesley Hall, Search and Seizure, Third Edition (Michie).

Cross References —

Handling of persons arrested by railroad police officers, see §77-9-507.

Post-arrest release on written notice to appear at later date, see §99-3-18.

For the notice persons under 21 must be given if released under this section following arrest, see §99-3-45.

Defendant’s initial appearance, see Miss. Unif. Cir. & County Ct. Prac. R. 6.03.

Preliminary hearing, see Miss. Unif. Cir. & County Ct. Prac. R. 6.04.

JUDICIAL DECISIONS

1. In general.

2. Effect of delay, generally.

3. Admissibility of confession.

4. Waiver of rights.

1. In general.

There was no unnecessary delay in providing defendant with an initial appearance as required under Miss. Code Ann. §99-3-17 because he was being held in custody on unrelated bench warrants from August 12, 2004, until August 17, he was charged with murder on August 18, and he was arraigned in court that same day. Smith v. State, 977 So. 2d 1227, 2008 Miss. App. LEXIS 157 (Miss. Ct. App. 2008).

A city police chief who arbitrarily promulgated and enforced a rule that civil rights demonstrators arrested for parading without a permit should not be taken before a magistrate violated Code 1942, § 2473. Anderson v. Nosser, 456 F.2d 835, 1972 U.S. App. LEXIS 10947 (5th Cir. Miss.), cert. denied, 409 U.S. 848, 93 S. Ct. 53, 34 L. Ed. 2d 89, 1972 U.S. LEXIS 1312 (U.S. 1972).

The purpose of a preliminary hearing is to determine whether probable cause exists to hold a person for trial, and a defendant formally indicted by a grand jury before his arrest was not entitled to a preliminary hearing. Stevenson v. State, 244 So. 2d 30, 1971 Miss. LEXIS 1324 (Miss. 1971).

A petition for writ of error coram nobis was denied where there was nothing in the record to indicate that the defendant was prejudiced by the failure to afford him a preliminary hearing. Petition of Woodruff, 253 Miss. 827, 179 So. 2d 268, 1965 Miss. LEXIS 1057 (Miss. 1965).

The requirement that an offender shall be taken before the proper officer without unnecessary delay for examination of his case is in furtherance of the legislative purpose to insure a speedy and public trial as guaranteed by § 26 of the Constitution. Jones v. State, 250 Miss. 186, 164 So. 2d 799, 1964 Miss. LEXIS 454 (Miss. 1964).

Person arrested on charge of drunkenness has no right to demand detention in any particular place, pending return to sobriety and perfection of charge, except to extent that any lodgment elsewhere than in jail of county of arrest will work unreasonably to deny accused right to obtain bail or speedy trial. State use of Kelley v. Yearwood, 204 Miss. 181, 37 So. 2d 174, 1948 Miss. LEXIS 353 (Miss. 1948).

Temporary confinement of a drunken woman in jail of county rather than county of arrest instead of taking her before officer for examination of her case is not unlawful imprisonment when the arrest is made on Sunday, prisoner is in no condition to be given a hearing, and jail in which she is confined is most convenient and suitable for detention of a woman. State use of Kelley v. Yearwood, 204 Miss. 181, 37 So. 2d 174, 1948 Miss. LEXIS 353 (Miss. 1948).

This section [Code 1942, § 2473] not only contemplates that an accused shall be given a trial of his case without unnecessary delay, but that a person arrested by an officer or private person with or without a warrant, for any indictable offense committed in his presence or where the arrest is made on probable cause or suspicion that the accused has committed a felony, shall not be detained for any unreasonable length of time without being afforded an opportunity to have a hearing on the merits of the accusation against him. Sheffield v. Reece, 201 Miss. 133, 28 So. 2d 745, 1947 Miss. LEXIS 378 (Miss. 1947).

2. Effect of delay, generally.

The failure to provide a defendant with an initial appearance until five days after his arrest even though a judge was available at all times constituted reversible error where the defendant gave a confession in the absence of counsel and in violation of his right to counsel as a consequence of the delay, and the defendant’s conviction for capital murder was based entirely on his confession. Abram v. State, 606 So. 2d 1015, 1992 Miss. LEXIS 448 (Miss. 1992), overruled in part, Foster v. State, 961 So. 2d 670, 2007 Miss. LEXIS 315 (Miss. 2007), overruled in part, Holly v. Mississippi, 2011 U.S. App. LEXIS 24853 (5th Cir. Miss. Dec. 13, 2011).

Although assuming, but not deciding that an unexplained three and one half day delay in affording a defendant a preliminary hearing to be undue delay, there is no authority to the effect that such delay entitled the accused to an outright discharge on the charge of armed robbery. Dunning v. State, 251 Miss. 766, 171 So. 2d 315, 1965 Miss. LEXIS 900 (Miss. 1965), cert. denied, 386 U.S. 993, 87 S. Ct. 1310, 18 L. Ed. 2d 339, 1967 U.S. LEXIS 1872 (U.S. 1967).

The failure to carry a defendant before a judicial officer without unnecessary delay for examination after his arrest does not entitle him to a directed verdict of not guilty. Harper v. State, 251 Miss. 699, 171 So. 2d 129, 1965 Miss. LEXIS 894 (Miss. 1965).

Where the state knows the identity of the accused, has the accused in custody, obtains a confession, and holds the accused in the penitentiary for a period of over eight years, during which time he has suffered many disadvantages, then the delay is vexatious, capricious, and oppressive, and the accused has been denied the speedy trial as contemplated by the constitution. Jones v. State, 250 Miss. 186, 164 So. 2d 799, 1964 Miss. LEXIS 454 (Miss. 1964).

3. Admissibility of confession.

Delay in taking the prisoner before a magistrate for a preliminary hearing did not render his confession inadmissible where there was no evidence that the delay resulted in the confession being involuntary. Dickens v. State, 311 So. 2d 650, 1975 Miss. LEXIS 1618 (Miss. 1975).

It does not follow that a violation of this section [Code 1942, § 2473] renders inadmissible a confession, freely and voluntarily made while the accused is in custody, where the confession was not induced by threats, force or promises. Parker v. State, 244 Miss. 332, 141 So. 2d 546, 1962 Miss. LEXIS 453 (Miss. 1962), overruled, Simmons v. State, 568 So. 2d 1192, 1990 Miss. LEXIS 605 (Miss. 1990).

Delay in giving a preliminary hearing may properly be considered in determining the admissibility of a confession obtained in the meantime. Tyson v. State, 237 Miss. 149, 112 So. 2d 563, 1959 Miss. LEXIS 457 (Miss. 1959).

Where an offense was committed on Saturday morning and defendant was arrested on Sunday morning and on Monday he was indicted, and where on the day of arrest neither the grand jury nor justice of peace was in session, the defendant was indicted without unnecessary delay and confession obtained was not result of any illegal detention. Robinson v. State, 223 Miss. 70, 77 So. 2d 265, 1955 Miss. LEXIS 354 (Miss.), cert. denied, 350 U.S. 851, 76 S. Ct. 91, 100 L. Ed. 757, 1955 U.S. LEXIS 553 (U.S. 1955).

In robbery prosecution the mere fact that confessions were made while defendants were in custody and before preliminary hearings were had does not render the confessions inadmissible. Winston v. State, 209 Miss. 799, 48 So. 2d 513, 1950 Miss. LEXIS 445 (Miss. 1950).

It is not necessary for arresting officer to summon member of suspect’s family or friend or lawyer when arrest is made to attend interrogation to be conducted by officers and confession was not involuntary for this reason when accused was arrested in presence of his father and mother, who knew that he was being incarcerated, and there was no refusal to permit attorneys of prisoner to have access to him after they were employed in case. Moore v. State, 207 Miss. 140, 41 So. 2d 368, 1949 Miss. LEXIS 324 (Miss.), cert. denied, 338 U.S. 844, 70 S. Ct. 93, 94 L. Ed. 516, 1949 U.S. LEXIS 1838 (U.S. 1949).

4. Waiver of rights.

Only a magistrate, at a preliminary hearing and after advising the defendant of the nature of the charge against him and permitting him to plead to it, may accept a waiver of preliminary hearing. Harper v. State, 251 Miss. 699, 171 So. 2d 129, 1965 Miss. LEXIS 894 (Miss. 1965).

The giving of an appearance bond by the defendant in a prosecution charging the defendant with being an accessory before the fact to the crime of robbery, to wait the action of the grand jury, amounted to a discontinuance of the prosecution in the justice of the peace court, and a waiver of the defendant’s right under this section [Code 1942, § 2473] to be taken before that officer for a preliminary examination of his fee. De Angelo v. State, 187 Miss. 84, 192 So. 444, 1939 Miss. LEXIS 104 (Miss. 1939).

OPINIONS OF THE ATTORNEY GENERAL

After a warrantless arrest, a justice court judge must make a determination of probable cause for the arrest at the defendant’s initial appearance and may issue a warrant after the fact concerning this finding or may otherwise make a record of such determination. Anderson, Aug. 8, 1997, A.G. Op. #97-0477.

A police department must bring a defendant before a judicial officer for an initial appearance immediately upon availability, and in no case may a defendant be held in custody without an initial appearance beyond 48 hours after arrest. Via, Dec. 27, 1999, A.G. Op. #99-0679.

A defendant does not have to be taken to a jail after being arrested, but may be brought before a judge to determine conditions for release. Furthermore, an individual who has been arrested may be released prior to being taken to a jail upon a written notice to appear in court. Erby, Mar. 26, 2004, A.G. Op.04-0138.

Where a preliminary hearing is provided to a defendant charged for a felony and held as a municipal prisoner, the defendant should be bound over to a grand jury and thereby become a county prisoner after the hearing, if the judge so determines. Wiggins, March 2, 2007, A.G. Op. #07-00075, 2007 Miss. AG LEXIS 78.

RESEARCH REFERENCES

ALR.

Intoxication as ground for police postponing arrestee’s appearance before magistrate. 3 A.L.R.4th 1057.

Admissibility of confession or other statement made by defendant as affected by delay in arraignment – modern cases. 28 A.L.R.4th 1121.

Coercive conduct by private person as affecting admissibility of confession under state statutes or constitutional provisions–post-Connelly cases. 48 A.L.R.5th 555.

When may dismissal for violation of Speedy Trial Act (18 USCS §§ 3161-3174) be with prejudice to government’s right to reinstate action. 98 A.L.R. Fed. 660.

Am. Jur.

5 Am. Jur. 2d, Arrest §§ 75 et seq.

26 Am. Jur. Proof of Facts 2d 617, False Imprisonment–Failure to Take Arrestee Before Magistrate Without Unreasonable or Unnecessary Delay.

41 Am. Jur. Trials 394, Habeas Corpus: Pretrial Motions (right to speedy trial).

Practice References.

Adams and Blinka, Prosecutor’s Manual for Arrest, Search and Seizure (Michie).

John Wesley Hall, Search and Seizure, Third Edition (Michie).

Cross References —

Handling of persons arrested by railroad police officers, see §77-9-507.

Requirement that persons not released pursuant to this section be taken before proper officer without delay, see §99-3-17.

For the notice persons under 21 must be given if released under this section following arrest, see §99-3-45.

OPINIONS OF THE ATTORNEY GENERAL

Pursuant to Section 99-3-18, assuming an ordinance is valid, a criminal affidavit should be filed to initiate charges for violations of county ordinances passed by the Board of Supervisors. Oster, September 20, 1996, A.G. Op. #96-0614.

An officer may release a defendant that has been charged with a traffic offense and is in his custody on a written notice to appear or if that officer has been designated by the municipal judge, may take a bond, cash or otherwise, from such a defendant. Powell, Jan. 10, 2003, A.G. Op. #02-0766.

A defendant does not have to be taken to a jail after being arrested, but may be brought before a judge to determine conditions for release. Furthermore, an individual who has been arrested may be released prior to being taken to a jail upon a written notice to appear in court. Erby, Mar. 26, 2004, A.G. Op.04-0138.

A ticket/citation for non-traffic misdemeanors must be in the form of an affidavit (as is a uniform traffic citation) and must state the essential elements of the offense charged and include the ordinance or statute relied upon. Clark, Oct. 27, 2006, A.G. Op. 06-0524.

RESEARCH REFERENCES

ALR.

Admissibility of confession or other statement made by defendant as affected by delay in arraignment-modern cases. 28 A.L.R.4th 1121.

Am. Jur.

5 Am. Jur. 2d, Arrest §§ 75 et seq.

CJS.

6A C.J.S., Arrest §§ 58-61.

Editor’s Notes —

Pursuant to Miss. Const., Art. 6, § 171, all reference in the Mississippi Code to justice of the peace shall mean justice court judge.

RESEARCH REFERENCES

ALR.

Validity of arrest made in reliance upon uncorrected or outdated warrant list or similar police records. 45 A.L.R.4th 550.

Am. Jur.

5 Am. Jur. 2d, Arrest § 28.

Law Reviews.

Lesser Included Offenses in Mississippi, 74 Miss. L.J. 135, Fall, 2004.

Editor’s Notes —

Pursuant to Miss. Const., Art. 6, § 171, all reference in the Mississippi Code to justice of the peace shall mean justice court judge.

Cross References —

Criminal jurisdiction of justices of the peace, see §99-33-1.

RESEARCH REFERENCES

ALR.

Issuance or service of state-court arrest warrant, summons, citation, or other process as tolling criminal statute of limitations. 71 A.L.R.4th 554.

JUDICIAL DECISIONS

1. In general.

2. Citizen’s arrest.

1. In general.

A constable who did not begin pursuit of defendant motorist until after the defendant had driven away at such a fast rate of speed his companions became alarmed for their safety was not engaged in an illegal attempt to arrest him. Shinall v. State, 199 So. 2d 251, 1967 Miss. LEXIS 1290 (Miss.), cert. denied, 389 U.S. 1014, 88 S. Ct. 590, 19 L. Ed. 2d 660, 1967 U.S. LEXIS 27 (U.S. 1967), overruled, Flowers v. State, 473 So. 2d 164, 1985 Miss. LEXIS 2140 (Miss. 1985).

In action for false imprisonment against officer who arrested plaintiff for drunkenness on public highway and had her confined in jail of county other than county of arrest, verdict for defendant will be allowed to stand where instructions taken as a whole correctly submit issue of unnecessary and unreasonable detention and failure, if any, to have plaintiff carried without delay before proper officer. State use of Kelley v. Yearwood, 204 Miss. 181, 37 So. 2d 174, 1948 Miss. LEXIS 353 (Miss. 1948).

Deputy sheriff’s killing of unarmed man, whom deputy sought to arrest without warrant as he approached illicit still, when he put his hand to hip pocket instead of obeying deputy’s command to raise his hands, held negligent, unnecessary, and wrongful act rendering deputy, the sheriff, and the surety on latter’s bond liable to deceased’s widow and children for damages as matter of law. Hinton v. Sims, 171 Miss. 741, 158 So. 141, 158 So. 778, 1934 Miss. LEXIS 276 (Miss. 1934).

Where plaintiff proved arrest and detention without warrant, burden of proof shifted to defendant to prove justification for arrest. Harris v. Sims, 155 Miss. 207, 124 So. 325, 1929 Miss. LEXIS 276 (Miss. 1929).

Officer arresting person without warrant, mistaking him for one wanted for crime, and putting him in jail over his protest, is liable therefor, he making no misstatements or misrepresentations leading to his arrest. Vice v. Holley, 88 Miss. 572, 41 So. 7, 1906 Miss. LEXIS 163 (Miss. 1906).

2. Citizen’s arrest.

In a suit by plaintiff against defendants, a casino and one of its employees, the circuit court did not err in granting defendants’ motion for a directed verdict on plaintiff’s intentional torts claims, including assault and battery by the casino and its employee because plaintiff was threatened only with removal and arrest; the casino had a right to remove him and probable cause to initiate his arrest; and there was a valid citizen’s arrest by the employee, which shielded the employee from civil liability. Lee v. MGM Resorts Miss., Inc., 200 So.3d 1129, 2016 Miss. App. LEXIS 57 (Miss. Ct. App.), cert. denied, 203 So.3d 598, 2016 Miss. LEXIS 401 (Miss. 2016).

RESEARCH REFERENCES

ALR.

Penalties for common-law criminal offense of false imprisonment. 67 A.L.R.4th 1103.

Liability of police or peace officers for false arrest, imprisonment, or malicious prosecution as affected by claim of suppression, failure to disclose, or failure to investigate exculpatory evidence. 81 A.L.R.4th 1031.

Burden of proof in civil action for using unreasonable force in making arrest as to reasonableness of force used. 82 A.L.R.4th 598.

Am. Jur.

10 Am. Jur. Pl & Pr Forms (Rev), False Imprisonment, Form 22.3 (Complaint, petition, or declaration-Unreasonable detention and search of customer on accusation of shoplifting).

JUDICIAL DECISIONS

I. UNDER CURRENT LAW.

1.-10. [Reserved for future use.]

II. UNDER FORMER LAW.

11. In general.

I. UNDER CURRENT LAW.

1.-10. [Reserved for future use.]

II. UNDER FORMER LAW.

11. In general.

Gambling statute, in so far as it authorizes arrest without warrant for misdemeanor not committed in presence of officer making arrest, held to violate constitution. Polk v. State, 167 Miss. 506, 142 So. 480, 1932 Miss. LEXIS 197 (Miss. 1932).

Editor’s Notes —

Pursuant to Miss. Const., Art. 6, § 171, all reference in the Mississippi Code to justice of the peace shall mean justice court judge.

Cross References —

Another section derived from same 1942 code section, see §97-35-31.

Amendment Notes —

The 2002 amendment, in the first sentence of (1)(a), inserted “or a sworn law enforcement officer within this state as defined in Section 45-6-3” following “Section 37-9-1,” inserted “or law enforcement officer” following “teacher,” and deleted “the teacher’s” preceding “official;” and inserted “or law enforcement officer” following “teacher” in (1)(b).

The 2004 amendment inserted “a certified jail officer as defined in Section 45-4-9, a counselor at an adolescent offender program created under Section 43-27-201 et seq.” following “Section 37-9-1” in (1)(a); and inserted “jail officer, counselor at an adolescent offender program” in (1)(a) and (1)(b).

The 2015 amendment substituted “opportunity program” for “offender program” twice in the first sentence of (1)(a).

Cross References —

Teachers, in general, see §§37-9-1 et seq.

JUDICIAL DECISIONS

1. Application.

Miss. Code Ann. §99-3-28 does not apply once an indictment has been returned by a grand jury. State v. Delaney, 52 So.3d 348, 2011 Miss. LEXIS 26 (Miss. 2011).

OPINIONS OF THE ATTORNEY GENERAL

A justice court does not have jurisdiction to issue an arrest warrant against a teacher or law enforcement officer for actions that occur while they are performing their official duties; such complaints should be referred to the circuit court for resolution, however, this does not preclude a justice court from making a probable cause determination and issuing an arrest warrant for a teacher or law enforcement officer for actions that occur when they are not on official duty. Branch, Oct. 4, 2002, A.G. Op. #02-0578.

This section requires a probable cause determination to be made by a circuit judge prior to a municipal or justice court commencing a criminal trial against a teacher or law enforcement officer for an offense committed within the performance of official duties. Tucker, Aug. 29, 2003, A.G. Op. 03-0440.

A law enforcement officer (or teacher) may be indicted by a grand jury for offenses committed in the performance of his duties, without a circuit judge conducting a probable cause hearing as required by this section. Furthermore, there would be no need to conduct a probable cause hearing after an indictment has been returned by a grand jury but prior to the arrest of the law enforcement officer (or teacher) on the indictment. Mellen, Mar. 3, 2004, A.G. Op. 04-0095.

This section does not apply to a situation where a law enforcement officer observes a crime being committed in his presence. The officer may arrest the offender without a warrant and take him before a circuit judge for a probable cause determination. Bullock, June 21, 2004, A.G. Op. 04-0260.

Cross References —

Perjury generally, see §§97-9-59 et seq.

Indictment for perjury, see §99-7-39.

JUDICIAL DECISIONS

1. In general.

In prosecution for contempt of court for violation of temporary injunction issued to have the premises of the defendant declared a common nuisance, where the chancellor bound the accused over to await action of the grand jury on the charge of perjury as a result of information obtained aliunde the record, the chancellor did not deal unfairly with the accused as regards his guilt and sentence. McBride v. State, 221 Miss. 508, 73 So. 2d 154, 1954 Miss. LEXIS 557 (Miss. 1954).

The action of a trial court in committing the defendant to the custody of the sheriff to await the action of the grand jury on the charge of perjury was no such prejudice or bias as to disqualify him from performing his duties as a trial judge in the case after an indictment has been returned by the grand jury. Clanton v. State, 210 Miss. 700, 50 So. 2d 567, 1951 Miss. LEXIS 308 (Miss. 1951).

A witness should not be adjudged in contempt and punished for false swearing except in pursuance of the procedure prescribed by this statute unless it could be safely said that the trial judge has found the witness guilty as a result of his own personal or judicial knowledge of the facts in regard to which the testimony has been given. McInnis v. State, 202 Miss. 715, 32 So. 2d 444, 1947 Miss. LEXIS 334 (Miss. 1947).

The arrest provided for by this section [Code 1942, § 2479] must not be made in the presence and hearing of the jury; to do so operates a reversal. Brandon v. State, 75 Miss. 904, 23 So. 517, 1898 Miss. LEXIS 30 (Miss. 1898).

If upon the trial of a misdemeanor the court erroneously causes the arrest of a witness for perjury in the presence of the jury it is not reversible error if before the end of the trial the court recognizes the right of defendant to begin anew before another jury, and defendant elects to waive such right and proceed, his waiver being beyond recall. Chase v. State, 75 Miss. 502, 22 So. 828, 1897 Miss. LEXIS 118 (Miss. 1897).

Cross References —

Perjury generally, see §§97-9-59 et seq.

Indictment for perjury, see §99-7-39.

Cross References —

Perjury generally, see §§97-9-59 et seq.

Indictment for perjury, see §99-7-39.

Cross References —

Officers entitled to statutory reward for arrest of fleeing homicides, see §99-3-37.

Reward for information leading to apprehension of any person subsequently convicted of any crime or misdemeanor committed in the state, see §99-3-39.

JUDICIAL DECISIONS

1. In general.

2. Eligibility of peace officers.

3. Flight.

4. Claim for reward; who liable.

1. In general.

This section [Code 1942, § 2482] is not designed to reward mere informers. Ex parte Davis, 208 Miss. 430, 44 So. 2d 526, 1950 Miss. LEXIS 259 (Miss. 1950).

Reward cannot be allowed under this section [Code 1942, § 2482] to claimant who makes no arrest of fleeing homicide but merely advises him against flight, leaving criminal free to come and go as he pleases up to point when officer takes him into custody. Ex parte Davis, 208 Miss. 430, 44 So. 2d 526, 1950 Miss. LEXIS 259 (Miss. 1950).

This section [Code 1942, § 2482] should be liberally construed in favor of the person making the arrest. Warren County v. Lanier, 87 Miss. 606, 40 So. 429, 1905 Miss. LEXIS 211 (Miss. 1905), overruled, Ex parte Webb, 96 Miss. 8, 49 So. 567, 1909 Miss. LEXIS 6 (Miss. 1909); Ex parte Webb, 96 Miss. 8, 49 So. 567, 1909 Miss. LEXIS 6 (Miss. 1909); Ex parte Austin, 129 Miss. 869, 93 So. 369, 1922 Miss. LEXIS 102 (Miss. 1922); Ex parte Fairley, 162 Miss. 456, 139 So. 399, 1932 Miss. LEXIS 130 (Miss. 1932).

One is entitled to the reward under this section [Code 1942, § 2482] where he arrests a fugitive who was before arrested on a charge of assault and battery with intent to kill and is by the magistrate discharged, the wound proving mortal after such discharge and the second arrest being for murder. Newton County v. Doolittle, 72 Miss. 929, 18 So. 451, 1895 Miss. LEXIS 56 (Miss. 1895).

One is entitled to the reward under this section [Code 1942, § 2482] where a mortal wound is inflicted though the wounded person be not dead when the arrest is made. Martin v. Copiah County, 71 Miss. 407, 15 So. 73, 1893 Miss. LEXIS 205 (Miss. 1893).

If a homicide have never been in the custody of the officers of the law even though he were previously arrested by a private party from whom he escaped before being surrendered to the officers the party arresting and delivering him is entitled to the reward. Wilson v. Wallace, 64 Miss. 13, 8 So. 128, 1886 Miss. LEXIS 4 (Miss. 1886).

One who rearrests an escaped homicide is not entitled to the reward. Board of Supervisors v. Candler, 62 Miss. 193, 1884 Miss. LEXIS 50 (Miss. 1884).

2. Eligibility of peace officers.

State highway patrolman, not being peace officer, has same authority that private citizen would have to make arrest of fleeing homicide under same circumstances, and no more, and would be entitled to receive statutory reward the same as if he had been private citizen and had made arrest and delivery of prisoner under circumstances provided for by this section [Code 1942, § 2482]. Smith v. Rankin County, 208 Miss. 792, 45 So. 2d 592, 1950 Miss. LEXIS 300 (Miss. 1950).

On consideration of public policy, police officer cannot lawfully claim reward for performance of service which it was his duty to discharge. Petition of Aultman, 205 Miss. 397, 38 So. 2d 901, 1949 Miss. LEXIS 437 (Miss. 1949).

Member of police force who arrests fleeing homicide in city and county in which officer resides, the city paying him fixed salary for his services as officer, is ineligible to receive reward provided for under this section [Code 1942, § 2482] for arrest of fleeing homicide, homicide and arrest occurring within corporate limits of city. Petition of Aultman, 205 Miss. 397, 38 So. 2d 901, 1949 Miss. LEXIS 437 (Miss. 1949).

A sheriff of another state who arrests in his own state a person who killed another in this state and is fleeing from arrest and merely notifies by telegraph the sheriff of the county where the homicide was committed is not entitled to the reward provided by this section [Code 1942, § 2482] because he did not deliver up the prisoner for trial and was under legal duty to make the arrest. Gould v. Chickasaw County, 85 Miss. 123, 37 So. 710, 1904 Miss. LEXIS 144 (Miss. 1904).

A sheriff of Texas is not entitled for arresting in Texas a person thereafter committing a homicide in Mississippi to the reward provided by the section [Code 1942, § 2482]. Rucker v. State, 18 So. 121 (Miss. 1895).

Officers under obligations as such to make the arrest were not entitled to the reward provided for in this section [Code 1942, § 2482]. Ex parte Gore, 57 Miss. 251, 1879 Miss. LEXIS 59 (Miss. 1879).

3. Flight.

Claim of fleeing homicide that flight was for another purpose than to avoid arrest would not defeat claim for reward under statute. Ex parte Fairley, 162 Miss. 456, 139 So. 399, 1932 Miss. LEXIS 130 (Miss. 1932).

Where there is killing followed by flight of the homicide, conclusive presumption under statute respecting reward is that flight was for purpose of avoiding arrest. Ex parte Fairley, 162 Miss. 456, 139 So. 399, 1932 Miss. LEXIS 130 (Miss. 1932).

A person who hides in a barn is fleeing or attempting to flee. Ex parte Austin, 129 Miss. 869, 93 So. 369, 1922 Miss. LEXIS 102 (Miss. 1922).

The homicide must be fleeing or attempting to flee in order to entitle the party arresting him to a reward. Wilkinson County v. Jones, 52 So. 453 (Miss. 1910); Board of Sup'rs v. Wright, 111 Miss. 790, 72 So. 226, 1916 Miss. LEXIS 395 (Miss. 1916).

The reward cannot be claimed for arresting one who after killing a person remained at home two days, not concealing himself and then left for another state remaining at one place till arrested, it being generally known where he was. Rucker v. State, 18 So. 121 (Miss. 1895).

Where one who has killed another is arrested in open day on a highway while going into the town of his residence, being near the business part of it, declaring at the time that he is on the way to surrender, the reward should not be allowed to the person making the arrest. Board of Sup'rs v. Cottrel, 70 Miss. 117, 12 So. 156, 1892 Miss. LEXIS 98 (Miss. 1892).

4. Claim for reward; who liable.

The action of the circuit court reversing the action of the board of supervisors in disallowing a claim for reward is an allowance of the claim. Ex parte Webb, 96 Miss. 8, 49 So. 567, 1909 Miss. LEXIS 6 (Miss. 1909).

The county does not have to be made a party defendant to a proceeding for reward under this section [Code 1942, § 2482]. Ex parte Webb, 96 Miss. 8, 49 So. 567, 1909 Miss. LEXIS 6 (Miss. 1909).

In case of injury in one county resulting in death in another, the reward is payable by the county in which the cause of death was inflicted and not by the county where the death occurred. Board of Supervisors v. Wells, 67 Miss. 151, 6 So. 614, 1889 Miss. LEXIS 4 (Miss. 1889).

RESEARCH REFERENCES

ALR.

Knowledge of reward as condition of right thereto. 86 A.L.R.3d 1142.

Am. Jur.

67 Am. Jur. 2d, Rewards §§ 1 et seq.

21 Am. Jur. Pl & Pr Forms (Rev), Rewards, Forms 1-5, (complaint, petition, or declaration to recover reward).

35 Am. Jur. Proof of Facts 2d 691, Right to Reward for Information Leading to Arrest and Conviction of Criminal Offender.

Cross References —

Reward for arrest and delivery of fleeing killer, see §99-3-35.

Reward for information leading to apprehension of any person subsequently convicted of any crime or misdemeanor committed in the state, see §99-3-39.

RESEARCH REFERENCES

Am. Jur.

67 Am. Jur. 2d, Rewards §§ 1 et seq.

21 Am. Jur. Pl & Pr Forms (Rev), Rewards, Forms 1-5, (complaint, petition, or declaration to recover reward).

21 Am. Jur. Pl & Pr Forms (Rev), Rewards, Forms 7-12, (instructions to jury pertaining to rewards).

35 Am. Jur. Proof of Facts 2d 691, Right to Reward for Information Leading to Arrest and Conviction of Criminal Offender.

Amendment Notes —

The 2007 amendment substituted “Fifteen Thousand Dollars ($15,000)” for “twenty-five hundred dollars ($2500.00)” in (1).

Cross References —

Reward for arrest and delivery of fleeing killer, see §99-3-35.

Officers entitled to statutory reward for arrest of fleeing homicides, see §99-3-37.

OPINIONS OF THE ATTORNEY GENERAL

Various municipal governing authorities may encourage the same type of citizen and community crime solving assistance as the private non-profit Crimestoppers program by directly offering monetary rewards, in their discretion, for information leading to the arrest and conviction of those responsible for committing crimes in their areas. Gunn, January 23, 1998, A.G. Op. #98-0020.

A municipality may not use general funds to make donations to a nonprofit corporation such as Crimestoppers, a not for profit Mississippi corporation established to encourage citizens to provide tips and information which may assist in solving crimes; however, a municipality may encourage the same type of citizen and community crime solving assistance by directly offering monetary rewards in their discretion for information leading to the arrest and conviction of those persons responsible for committing crimes. Prichard, Sept. 7, 2001, A.G. Op. #01-0512.

RESEARCH REFERENCES

ALR.

Knowledge of reward as condition of right thereto. 86 A.L.R.3d 1142.

Adverse presumption or inference based on state’s failure to produce or examine informant in criminal prosecution-modern cases. 80 A.L.R.4th 547.

Am. Jur.

67 Am. Jur. 2d, Rewards §§ 1 et seq.

16 Am. Jur. Legal Forms 2d, Rewards, §§ 225:14 et seq., (offers of reward).

21 Am. Jur. Pl & Pr Forms (Rev), Rewards, Forms 1-5, (complaint, petition, or declaration to recover reward).

21 Am. Jur. Pl & Pr Forms (Rev), Rewards, Forms 7-12, (instructions to jury pertaining to rewards).

35 Am. Jur. Proof of Facts 2d 691, Right to Reward for Information Leading to Arrest and Conviction of Criminal Offender.

Editor’s Notes —

Subsection (2) of this section requires the destruction of biological samples after an HIV test is performed. However, Section 99-49-1(3)(iii) requires the state to preserve all biological evidence that is secured as provided under this section, creating a conflict between this section and Section 99-49-1.

Amendment Notes —

The 2016 amendment, in (1), rewrote the former fourth sentence, which read: “The results of any positive test shall be reported by the State Department of Health to each victim of the alleged offense, or the parent, guardian, or custodian of each minor victim, and the accused not later than twenty-four (24) hours after the test results are available,” and divided it into the present fourth and fifth sentences; and in (2), substituted “HIV and/or AIDS tests” for “HIV and/or AID tests.”

Editor's Note —

Laws of 2019, ch. 466, § 1 provides:

“SECTION 1. This act shall be known and may be cited as the ‘Criminal Justice Reform Act.’ ”

Amendment Notes —

The 2019 amendment substituted “Intervention Court” for “drug court” in (b).

Amendment Notes —

The 2007 amendment added the last three paragraphs.

The 2014 amendment added the last paragraph and made minor punctuation changes.

Cross References —

Excessive bail prohibited; revocation or denial of bail, see Miss. Const., Art. 3, § 29.

Applicability of general bail provisions to the Mississippi Code of Military Justice, see §33-13-623.

Deposit of driver’s license in lieu of bail in traffic cases, see §63-9-25.

Bail provisions under Mississippi Uniform Post-Conviction Collateral Relief Act, see §99-39-25.

Form of bail, see Miss. Unif. Cir. & County Ct. Prac. R. 6.02.

JUDICIAL DECISIONS

1. Variance of bail agreement.

A surety was liable under a bail bond in light of the adjustment of the bail agreement in open court by the agent for the surety where (1) the bail agreement originally secured the defendant’s justice court appearance on a charge of grand larceny, (2) the defendant appeared in justice court and his case was bound over for consideration by the grand jury, (3) the agent for the surety then modified the bond to reflect that it was returnable to both justice court and circuit court, and (4) the defendant thereafter failed to appear in circuit court. State v. Brooks, 781 So. 2d 929, 2001 Miss. App. LEXIS 119 (Miss. Ct. App. 2001).

RESEARCH REFERENCES

ALR.

Propriety of applying cash bail to payment of fine. 42 A.L.R.5th 547.

Propriety, after obligors on appearance bond have been exonerated pursuant to Rule 46(f) of the Federal Rules of Criminal Procedure, of applying cash or other security to fine imposed on accused. 58 A.L.R. Fed. 676.

Am. Jur.

4 Am. Jur. Pl & Pr Forms (Rev), Bail and Recognizance, Form 1, (general form of undertaking).

4 Am. Jur. Pl & Pr Forms (Rev), Bail and Recognizance, Forms 11 et seq., (amount of bail).

Law Reviews.

1979 Mississippi Supreme Court Review: Criminal Law and Procedure. 50 Miss. L. J. 763, December 1979.

Practice References.

Adams, James A. and Blinka, Daniel D., Prosecutor’s Manual for Arrest, Search and Seizure (LexisNexis).

George, Jr., B. James, Tymkovich, Timothy M., Coats, Nathan B., and Erickson, William H., United States Supreme Court Cases and Comments: Criminal Law and Procedure (Matthew Bender).

Newton, Brent E., Practical Criminal Procedure: A Constitutional Manual, Second Edition (NITA).

Ordover, Abraham P., Criminal Law Advocacy (Matthew Bender).

Sacks, Garfield and Garfield, Criminal Defense Techniques (Matthew Bender Elite Products).

Schoenberg, Ronald L., Criminal Law Deskbook (Matthew Bender).

Shapiro, Jay, Criminal Practice Handbook, Fourth Edition (Michie).

Criminal Constitutional Law (Matthew Bender).

Mississippi Criminal and Traffic Law Manual (LexisNexis Law Enforcement).

Cross References —

Appearance by criminal defendant held in custody or confinement by means of closed-circuit television, see §99-1-23.

Inapplicability of Mississippi Rules of Evidence in proceedings with respect to release on bail, see Miss. R. Evid. 1101.

RESEARCH REFERENCES

Am. Jur.

4 Am. Jur. Pl & Pr Forms (Rev), Bail and Recognizance, Form 2, (undertaking to insure appearance at contempt hearing).

Cross References —

Fee on professional bondsmen, appearance bonds and recognizances, see §83-39-31.

JUDICIAL DECISIONS

1. In general.

A provision of a state bail statute whereby an accused may obtain his pretrial release by depositing with the court clerk 10 percent of the amount of bail, but upon performance of the conditions of the bail bond, the clerk returns only 90 percent of a deposit, retaining as bail bond costs 10 percent or one percent of the amount of bail, where other statutory provisions authorize release on personal recognizance, or on deposit of the full amount of bail or security, no retention of administrative charge being imposed in such situations, is not violative of equal protection as being imposed on the poor and not on the affluent, since it will not be presumed that the provision for release on personal recognizance is not utilized by state judges and made available for the poor, and it is not clear that the provision for deposit of the full amount of bail, with no retention charge, is for the affluent, who may find the 10 percent deposit provision just as attractive. Schilb v. Kuebel, 404 U.S. 357, 92 S. Ct. 479, 30 L. Ed. 2d 502, 1971 U.S. LEXIS 157 (U.S. 1971).

Bastardy proceeding being in nature of criminal proceeding as respects defendant’s arrest and binding over to appear before court, his appearance bond required him to appear at next term of court and there remain from day to day and term to term until discharged by law. Boggan v. Davis, 171 Miss. 307, 157 So. 904, 1934 Miss. LEXIS 269 (Miss. 1934).

The obligation of the sureties is not affected by the subsequent arrest of their principal upon another charge, there being no actual custody to prevent his appearance as required by the bond. Tedford v. State, 67 Miss. 363, 7 So. 352, 1889 Miss. LEXIS 89 (Miss. 1889).

The presence of the accused for trial does not relieve the sureties nor does his arraignment and trial. Lee v. State, 51 Miss. 665, 1875 Miss. LEXIS 92 (Miss. 1875).

A recognizance or bail bond is not void for a mistake in it in relation to the time of the holding of the term of court in which it is returnable. Curry v. State, 39 Miss. 511, 1860 Miss. LEXIS 82 (Miss. 1860).

OPINIONS OF THE ATTORNEY GENERAL

Only one bond should be taken when a defendant is charged with multiple counts in one warrant; however, if separate warrants are issued for felony and misdemeanor offenses or separate affidavits are filed for each offense, then a separate bond may be taken for the separate offenses. Walters, Sept. 28, 2001, A.G. Op. #01-0619.

RESEARCH REFERENCES

ALR.

Discharge, suspension, or remission of bail by reason of imprisonment of principal for a different offense. 4 A.L.R.2d 440.

Right to apply cash bail to payment of fine. 92 A.L.R.2d 1084.

Dismissal or vacation of indictment as terminating liability or obligation of surety on bail bond. 18 A.L.R.3d 1354.

Application of state statutes establishing pretrial release of accused on personal recognizance as presumptive form of release. 78 A.L.R.3d 780.

Bail: duration of surety’s liability on pretrial bond. 32 A.L.R.4th 504.

Bail: duration of surety’s liability on posttrial bail bond. 32 A.L.R.4th 575.

Bail: effect on liability of bail bond surety of state’s delay in obtaining indictment or bringing defendant to trial. 32 A.L.R.4th 600.

Bail: effect on surety’s liability under bail bond of principal’s incarceration in other jurisdiction. 33 A.L.R.4th 663.

Bail: effect on surety’s liability under bail bond of principal’s subsequent incarceration in same jurisdiction. 35 A.L.R.4th 1192.

Cross References —

Guaranteed arrest bond certificate in lieu of cash bail for certain traffic violations, see §63-9-27.

Fee on professional bondsmen, appearance bonds and recognizances, see §83-39-31.

Cash bail bond, see §99-5-9.

Approval of sureties, see §99-5-15.

JUDICIAL DECISIONS

1. In general.

It is the policy of the bail statutes generally to encourage the granting of bail in proper cases. Wooton v. Bethea, 209 Miss. 374, 47 So. 2d 158, 1950 Miss. LEXIS 401 (Miss. 1950).

RESEARCH REFERENCES

ALR.

Propriety of applying cash bail to payment of fine. 42 A.L.R.5th 547.

Amendment Notes —

The 2007 amendment designated the previously existing paragraphs as (1) through (3); and added (4).

Cross References —

Guaranteed arrest bond certificate in lieu of cash bail for certain traffic violations, see §63-9-27.

Fee on professional bondsmen, appearance bonds and recognizances, see §83-39-31.

Fidelity or surety insurance company may give bail, see §99-5-7.

Court may require additional bail, see §99-5-13.

JUDICIAL DECISIONS

1. In general.

It is the policy of the bail statutes generally to encourage the granting of bail in proper cases. Wooton v. Bethea, 209 Miss. 374, 47 So. 2d 158, 1950 Miss. LEXIS 401 (Miss. 1950).

OPINIONS OF THE ATTORNEY GENERAL

If cash bond is tendered in proper amount, it must be accepted; officials of county jail where town houses its prisoners may not refuse to accept cash bonds on city prisoners. Bond, Nov. 25, 1992, A.G. Op. #92-0834.

A defendant charged with a non-traffic offense may be allowed by the court to post a cash bond and sign an agreement that would allow the cash bond to be used to pay any fine that might be imposed against the defendant as a result of a trial in absentia should the defendant fail to appear; however, such an agreement would in no way relieve the defendant of the obligation to appear for trial, but would merely offer the court an additional option to collect a fine should the defendant fail to appear. Shirley, May 1, 2000, A.G. Op. #2000-0197.

RESEARCH REFERENCES

Am. Jur.

8A Am. Jur. 2d, Bail and Recognizance §§ 87 et seq.

CJS.

8 C.J.S., Bail §§ 71, 72.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected an error in subsection (2) by substituting “Mississippi Protection Order Registry” for “Mississippi Protective Order Registry.” The Joint Committee ratified the correction at its August 16, 2012, meeting.

Editor's Note —

Laws of 2019, ch. 466, § 1 provides as follows:

“SECTION 1. This act shall be known and may be cited as the ‘Criminal Justice Reform Act.’ ”

Amendment Notes —

The 2012 amendment rewrote the section.

The 2019 amendment added (3).

Cross References —

Money paid into the justice court clerk clearing account, see §9-11-18.

Fee on professional bondsmen, appearance bonds and recognizances, see §83-39-31.

Mississippi Protection Order Registry, see §93-21-25.

JUDICIAL DECISIONS

1. In general.

An indigent defendant charged with aggravated assault and unable to make bail was improperly denied release on her own recognizance where the record was devoid of any consideration by the judicial officer of alternative forms of release and where there was no evidence that there was a substantial risk of nonappearance. On remand to consider whether a form of pretrial release other than money bail would adequately assure defendant’s presence at trial, the ABA minimum standards relating to pretrial release would serve as a guide to the judicial officer in making the release decision. Lee v. Lawson, 375 So. 2d 1019, 1979 Miss. LEXIS 2465 (Miss. 1979).

This statute apparently applies only to instances where the accused has already been charged with an offense, and not to cases where no charge is then pending and no warrant has been issued. Sheffield v. Reece, 201 Miss. 133, 28 So. 2d 745, 1947 Miss. LEXIS 378 (Miss. 1947).

OPINIONS OF THE ATTORNEY GENERAL

Justice court judge may order constable to release defendant upon defendant’s execution of recognizance bond; when such is done defendant would not be placed in county jail and would not need to pay attendant fees. O’Brien Oct. 13, 1993, A.G. Op. #93-0701.

RESEARCH REFERENCES

ALR.

Pretrial preventive detention by state court. 75 A.L.R.3d 956.

Am. Jur.

8A Am. Jur. 2d, Bail and Recognizance §§ 6 et seq.

CJS.

8 C.J.S., Bail § 61.

Law Reviews.

1979 Mississippi Supreme Court Review: Criminal Law and Procedure. 50 Miss. L. J. 763, December 1979.

Amendment Notes —

The 2016 amendment rewrote the section, which read: “When it shall appear to the court before which any person charged with a criminal offense has given bail to appear that such bail is insufficient in any respect, the court may order the issuance of process for the arrest of such person, and may require him to give bail as may be ordered, and, in default thereof, may commit him to jail as in other cases.”

RESEARCH REFERENCES

Am. Jur.

8A Am. Jur. 2d, Bail and Recognizance §§ 92 et seq.

4 Am. Jur. Pl & Pr Forms (Rev), Bail and Recognizance, Forms 12, 14, 16, (increase of bail).

CJS.

8 C.J.S., Bail § 70.

Cross References —

Fidelity or surety insurance company may give bail, see §99-5-7.

JUDICIAL DECISIONS

1. In general.

2. Discretion to accept or reject bonds.

1. In general.

It is the policy of the bail statutes generally to encourage the granting of bail in proper cases. Wooton v. Bethea, 209 Miss. 374, 47 So. 2d 158, 1950 Miss. LEXIS 401 (Miss. 1950).

2. Discretion to accept or reject bonds.

While Miss. Code Ann. §19-25-67 authorized a sheriff to take bonds, so long as they were accompanied by good and sufficient sureties, it did not require the sheriff to accept every bond offered with sufficient sureties, and the sheriff had limited discretion as to whether to accept or reject a bond tendered for the release of an accused; Miss. Code Ann. §99-5-19 supported this finding, in that it twice mentioned the person taking and approving a bail bond. Tunica County v. Hampton Co. Nat'l Sur., LLC, 27 So.3d 1128, 2009 Miss. LEXIS 249 (Miss. 2009).

OPINIONS OF THE ATTORNEY GENERAL

In all personal surety bonds, the sheriff is vested with great discretion to approve or not approve the bond. Thompson, Mar. 11, 1992, A.G. Op. #92-0119.

A sheriff may require a professional bail agent acting as a personal surety agent to furnish a financial statement, list of assets or some other documentation to show that the bail agent is solvent and has the ability to meet the obligation of the bond and, if a bail agent refuses to provide proof of solvency, the sheriff may refuse to approve bonds from that bail agent; however, this requirement does not apply to a limited surety agent representing an authorized fidelity and surety insurance company. Dykes, Feb. 15, 2002, A.G. Op. #02-0044.

In addition to this section, §§19-25-67 and99-33-7.give a sheriff the authority to take or approve bonds. Tolar, Oct. 31, 2003, A.G. Op. 03-0571.

A sheriff may not exclude all personal surety bail bondsmen from writing bonds with the county for persons charged with felonies and accept only bonds submitted by authorized fidelity and surety insurance companies. Grimmett, Apr. 16, 2004, A.G. Op. 04-0155.

A sheriff may require a bondsman to furnish a financial statement, list of assets or some other documentation to show that the bondsman is solvent and has the ability to meet the obligation of the bond. If a bondsman refuses to provide proof of solvency, the sheriff may refuse to approve bonds from that bondsman. Grimmett, Apr. 16, 2004, A.G. Op. 04-0155.

A sheriff cannot act in an arbitrary and capricious fashion when approving or rejecting bail bonds and should be able to articulate the reason why a bond was refused. Grimmett, Apr. 16, 2004, A.G. Op. 04-0155.

A sheriff does not have authority to require insurance of bonding companies doing business with the sheriff’s department. The sheriff may refuse to approve the bond of a bondsman whom the sheriff has found to be insolvent, to have insufficient assets or to be in default. Haywood, Oct. 29, 2004, A.G. Op. 04-0547.

RESEARCH REFERENCES

ALR.

Modern status of rules and standards in state courts as to adequacy of defense counsel’s representation of criminal client. 2 A.L.R.4th 27.

Amendment Notes —

The 2004 amendment substituted “person except a properly authorized judge authorized to release a criminal defendant” for “sheriff” in the introductory language; and substituted “person” for “sheriff” in the first and second sentences.

JUDICIAL DECISIONS

1. In general.

2. Discretion to accept or reject bonds.

1. In general.

This section, which provides that determination as to need for bail bond or propriety of personal recognizance release is vested in discretion of judicial officer, and that once bail has been set duty to review adequacy of bondsmen is left to sheriff, who must satisfy himself as to reliability of surety or stand personally liable for amount of bond should surety prove insufficient, does not violate Eighth Amendment. Williams v. Farrior, 626 F. Supp. 983, 1986 U.S. Dist. LEXIS 30466 (S.D. Miss. 1986).

2. Discretion to accept or reject bonds.

While Miss. Code Ann. §19-25-67 authorized a sheriff to take bonds, so long as they were accompanied by good and sufficient sureties, it did not require the sheriff to accept every bond offered with sufficient sureties, and the sheriff had limited discretion as to whether to accept or reject a bond tendered for the release of an accused; Miss. Code Ann. §99-5-19 supported this finding, in that it twice mentioned the person taking and approving a bail bond. Tunica County v. Hampton Co. Nat'l Sur., LLC, 27 So.3d 1128, 2009 Miss. LEXIS 249 (Miss. 2009).

OPINIONS OF THE ATTORNEY GENERAL

Sheriff may refuse to approve a bond if surety is not sufficient; type of offense, whether felony or misdemeanor, should make no difference in approving bond. Brewer, Oct. 7, 1992, A.G. Op. #92-0532.

Once justice court judge issues mittimus to sheriff setting forth amount of bail and number of sureties required, sheriff can only release defendant when bond or other conditions set by judge have been fully satisfied and failure of sheriff to comply with mittimus could result in sheriff standing as special bail and having judgment rendered against him. Vess, March 18, 1994, A.G. Op. #94-0124.

As a result of the 1997 and 2004 amendments to this section the sheriff has no personal liability if the bond is taken and approved from one of the named entities. A professional bail agent is either “a licensed personal surety agent” acting without an insurer or is ‘a limited surety agent representing an insurer.” The use of either in taking and approving a bond would negate liability on the part of the sheriff. McWilliams, Nov. 15, 2004, A.G. Op. 04-0552.

JUDICIAL DECISIONS

1. In general.

A bond for the appearance for the defendant to answer the charge of robbery is good for the appearance of the defendant on a charge of grand larceny where the indictment grew out of the offense intended to be described in the bond. Smith v. State, 86 Miss. 315, 38 So. 319, 1905 Miss. LEXIS 31 (Miss. 1905); Allen v. State, 110 Miss. 384, 70 So. 362, 1915 Miss. LEXIS 38 (Miss. 1915).

A mistake does not render a bond invalid, a scire facias can be amended if necessary to show the facts. Curry v. State, 39 Miss. 511, 1860 Miss. LEXIS 82 (Miss. 1860).

RESEARCH REFERENCES

Am. Jur.

8A Am. Jur. 2d, Bail and Recognizance § 79.

JUDICIAL DECISIONS

1. In general.

This section [Code 1942, § 2489] is based on the assumption that the principal in the bail bond is lawfully in custody and has no application where there is an absolute want of power in the officer who arrested the principal in the bail bond to so do and who exacted the bond before he would release the principal therein from custody, and, accordingly, the arrest of one on a warrant issued by a circuit clerk was illegal and the bond under which he was set at liberty is void. Martin v. State, 190 Miss. 32, 199 So. 98, 1940 Miss. LEXIS 188 (Miss. 1940).

This section [Code 1942, § 2489] makes valid a bond erroneously accepted by the arresting officer after serving a warrant issued by a justice of the peace in a bastardy case in so far as an action against the sureties on the bond is concerned, since the effect of the bond and the execution of the bond availed to set the accused free from the legal custody of the arresting officer and the party so procuring is released from legal custody of any sort so that the sureties on his bond cannot thereafter deny the validity thereof because the sheriff was required to keep him in custody and deliver his person into the court of the justice of the peace. Boykin v. West, 183 Miss. 567, 184 So. 624, 1938 Miss. LEXIS 270 (Miss. 1938).

If a bond served to release the principal on the charge the sureties are bound by the bond although the offense may be erroneously described. Allen v. State, 110 Miss. 384, 70 So. 362, 1915 Miss. LEXIS 38 (Miss. 1915).

Judgment nisi should not be taken against the sureties on a bond for the accused’s failure to appear and answer an entirely different charge. McCaleb v. State, 96 Miss. 144, 50 So. 555, 1909 Miss. LEXIS 29 (Miss. 1909).

Where a justice of the peace bound a defendant over to appear before the circuit court to await the action of the grand jury on the charge of having committed a misdemeanor, the bond is void notwithstanding this section [Code 1942, § 2489] since there was not power in the justice of the peace to take such bond. Smith v. State, 86 Miss. 315, 38 So. 319, 1905 Miss. LEXIS 31 (Miss. 1905).

OPINIONS OF THE ATTORNEY GENERAL

A Mississippi court may issue a “hold order” to the sheriff of another Mississippi county, and, in such cases, the bail will be entitled to a refund. Perry, May 26, 2000, A.G. Op. #2000-0248.

RESEARCH REFERENCES

Am. Jur.

8A Am. Jur. 2d, Bail and Recognizance §§ 79 et seq.

CJS.

8 C.J.S., Bail §§ 73 et seq.

Amendment Notes —

The 1999 amendment redesignated former (1) as (1)(a) and (1)(b); in (1)(a), inserted “the entry of” preceding “such order of judgment nisi,” and added the last sentence; and in (1)(b), made a minor punctuation change.

The 2001 amendment, in (1)(a), deleted “prosecutor, or witness” following “defendant,” inserted “with a copy of the judgment nisi and bench warrant attached thereto,” substituted “ten (10) working days” for “five (5) working days,” and deleted “of the entry” preceding “of such order”; and inserted “with a copy of the final judgment to be served on the surety” in (1)(b).

The 2009 amendment, added (1)(a); redesignated former (1)(a) and (b) as present (1)(b) and (c); in (1)(b), inserted “judgment nisi and a” in the first sentence, and deleted the former second sentence, which related to the purpose of bail (similar provisions are now found in (1)(a)); and rewrote the third and fourth sentences of (1)(c).

The 2011 amendment substituted “eighteen (18) months” for “twelve (12) months” in (3).

The 2013 amendment added the last sentence in (1)(b); added language beginning “and a copy of the judgment . . . . or certified mail”, at the end of the second sentence in (1)(c); added (1)(d); and made minor stylistic changes.

Cross References —

Guaranteed arrest bond certificate in lieu of cash bail for certain traffic violations, see §63-9-27.

JUDICIAL DECISIONS

1. In general.

2. Service of scire facias.

3. Amendment of scire facias.

4. Entry of judgment final.

5. Relief of sureties.

1. In general.

Trial court did not err in ordering defendant’s arrest and reincarceration after defendant had been released on bond on a charge of aggravated assault but failed to appear for arraignment on the charge. Ray v. State, 844 So. 2d 483, 2002 Miss. App. LEXIS 690 (Miss. Ct. App. 2002), cert. denied, 846 So. 2d 229, 2003 Miss. App. LEXIS 485 (Miss. Ct. App. 2003).

The rule announced in previous cases that a forfeiture judgment is properly entered against the sureties of a defendant who fails to appear for trial due to his incarceration in another jurisdiction is overruled insofar as professional bondsmen are concerned, thus making the decisions in those case applicable only to nonprofessional bondsmen. Wood v. State, 345 So. 2d 616, 1977 Miss. LEXIS 2470 (Miss. 1977).

A bail bondsman is entitled to an extension of time delaying final judgment when he can establish to the court’s satisfaction that the defendant is in the lawful custody of another jurisdiction and previous cases which hold otherwise are overruled. Wood v. State, 345 So. 2d 616, 1977 Miss. LEXIS 2470 (Miss. 1977).

The illness of a defendant which prevents his appearance in court as required by the condition of his bail bond is an Act of God for which no forfeiture should be taken against his surety. United Bonding Ins. Co. v. State, 252 Miss. 428, 175 So. 2d 182, 1965 Miss. LEXIS 1116 (Miss. 1965).

2. Service of scire facias.

Service of process on a bail bondsman’s agent was insufficient when defendant failed to appear at trial because by statute an agent could not be served to achieve service of process on a bail bondsman. However, because the bail bondsman remained as surety for defendant, reversal and remand were appropriate for proper process of scire facias to be had on the bail bondsman, at which point the trial court could proceed in accordance with the applicable law. Newell v. State, — So.3d —, 2019 Miss. App. LEXIS 335 (Miss. Ct. App. July 23, 2019).

Issuance and “not found” return of second scire facias must be accomplished five days before return day, and failure to comply with this requirement rendered final judgment void for lack of process. Resolute Ins. Co. v. State, 308 So. 2d 924, 1975 Miss. LEXIS 1860 (Miss. 1975).

The service of a scire facias on a forfeited bail bond must be served on the sureties before the return day of the summons. Robertson v. State, 87 Miss. 285, 39 So. 478, 1905 Miss. LEXIS 113 (Miss. 1905).

Two returns of “not found” on a writ of scire facias is by the statute made equal to the service of the same, but it does not make service or such returns as to all the parties a prerequisite to judgment final against those who are served. Saffold v. State, 60 Miss. 928, 1883 Miss. LEXIS 38 (Miss. 1883).

3. Amendment of scire facias.

The scire facias can be amended. Curry v. State, 39 Miss. 511, 1860 Miss. LEXIS 82 (Miss. 1860); Tucker v. State, 55 Miss. 452, 1877 Miss. LEXIS 157 (Miss. 1877).

4. Entry of judgment final.

A proceeding to make final a judgment nisi is a civil action and not criminal. Washington v. State, 98 Miss. 150, 53 So. 416, 1910 Miss. LEXIS 45 (Miss. 1910).

Where the scire facias is not supported in a material particular by the judgment nisi a judgment final inconsistent with the judgment nisi is erroneous. Smith v. State, 76 Miss. 728, 25 So. 491, 1899 Miss. LEXIS 8 (Miss. 1899).

Two returns of “not found” on a writ of scire facias is by the statute made equal to the service of the same, but it does not make service or such returns as to all the parties a prerequisite to judgment final against those who are served. Saffold v. State, 60 Miss. 928, 1883 Miss. LEXIS 38 (Miss. 1883).

If judgment final have been taken by default on a scire facias, a variance between the bond and the scire facias will not avail on appeal. Ditto v. State, 30 Miss. 126, 1855 Miss. LEXIS 70 (Miss. 1855); Saffold v. State, 60 Miss. 928, 1883 Miss. LEXIS 38 (Miss. 1883).

It is not error to enter judgment by default on a scire facias to enforce a judgment nisi while there is a plea to the indictment undisposed of. Ditto v. State, 30 Miss. 126, 1855 Miss. LEXIS 70 (Miss. 1855).

5. Relief of sureties.

Forfeiture of a pretrial bond was not proper under this section and the surety was entitled to recover its bond where, after conviction, the defendant was released on the existing bond plus an additional bond, but the surety was not notified nor did he accept a new obligation for posttrial bond. Frontier Ins. Co. v. State, 741 So. 2d 1021, 1999 Miss. App. LEXIS 366 (Miss. Ct. App. 1999).

The release of sureties on a bail bond from liability thereon is not within the discretion of the courts; they being authorized to grant such relief only when a legal right thereto has been made to appear. Nix v. State, 213 So. 2d 554, 1968 Miss. LEXIS 1292 (Miss. 1968), overruled, Wood v. State, 345 So. 2d 616, 1977 Miss. LEXIS 2470 (Miss. 1977); Stewart v. State, 150 Miss. 545, 117 So. 533, 1928 Miss. LEXIS 187 (Miss. 1928).

Where pursuant to a court order of commitment, secured at the instance of the attorneys for the accused and principal obligor on the bail bond, the sheriff carried the accused to the state hospital for a sanity examination, and subsequently the accused was found sane and released from the institution, but failed to appear for trial, the order of commitment did not relieve the sureties on the bail bond since there was no arrest of the accused for the same or other crime, or any interference with the custody of the sureties such as the law could regard as an excuse for the failure of the accused to appear for trial. Hall v. State, 231 Miss. 767, 97 So. 2d 649, 1957 Miss. LEXIS 564 (Miss. 1957).

OPINIONS OF THE ATTORNEY GENERAL

Under this section, once a scire facias has been returned to the court, and lacking a sufficient showing of cause, a final judgment may be entered against the surety for the forfeiture of bond. A final judgment may be enforced the same as any other judgment, including attachments, executions and garnishments. Schmidt, May 31, 1996, A.G. Op. #96-0328.

This section prescribes the procedure for forfeiture of bail bonds. The bond is due at the time final judgment is entered. Perry, August 23, 1996, A.G. Op. #96-0558.

A scire facias may be personally served on a limited surety agent, and that process will be binding on the insurer represented by that agent. Johnson, November 6, 1998, A.G. Op. #98-0672.

The statute authorizes a court to order bail forfeited any time a defendant fails to appear for any proceeding as ordered by the court; if the defendant fails to appear for the scheduled trial of a non-traffic offense, he may be tried in his absence and sentenced accordingly; however, there must be enough evidence presented at the trial in absentia to support a conviction, and, if the prosecutor or witnesses do not appear, the defendant cannot be convicted. Shirley, May 1, 2000, A.G. Op. #2000-0197.

A municipality does not have the authority to require a bondsman to locate an office within the city limits in order to write bonds for municipal prisoners. Lawrence, Jr., Feb. 8, 2002, A.G. Op. #02-0007.

Upon a bond forfeiture, the surety should be notified of the forfeiture by service of a scire facias along with a copy of the judgment nisi and bench warrant attached. The scire facias may be served either by personal service or by certified mail. Personal service upon the surety may be accomplished by personally delivering the scire facias to the professional bondsman. Aldridge, Sept. 24, 2004, A.G. Op. 04-0464.

Personal service of a scire facias may be performed by a constable, sheriff or deputy, or any other reputable person at least 18 years of age that the justice court clerk may appoint. This would include the clerk or a deputy clerk. Personal service could be accomplished by having the professional bondsman pick up the scire facias along with the judgment nisi and bench warrant or by having the clerk or deputy clerk deliver the scire facias and attachments to the professional bondsman. A proper return should be made to the court by the person serving the scire facias. Aldridge, Sept. 24, 2004, A.G. Op. 04-0464.

Where a judgment has been rendered against the surety and the bond has not been paid, the court should require payment of the judgment by surety; if the defendant is surrendered to the court or incarcerated in accordance with Section 99-5-25(3) “the amount of bail, less reasonable extradition cost, excluding attorney fees, shall be refunded by the court upon application by the surety.”

RESEARCH REFERENCES

ALR.

Appealability of order relating to forfeiture of bail. 78 A.L.R.2d 1180.

Bail: effect on surety’s liability under bail bond of principal’s incarceration in other jurisdiction. 33 A.L.R.4th 663.

Bail: effect on surety’s liability under bail bond of principal’s subsequent incarceration in same jurisdiction. 35 A.L.R.4th 1192.

State statutes making default on bail a separate criminal offense. 63 A.L.R.4th 1064.

Forfeiture of bail for breach of conditions of release other than that of appearance. 68 A.L.R.4th 1082.

What is proper venue under Rule 18 of the Federal Rules of Criminal Procedure for offense of bail jumping. 52 A.L.R. Fed. 901.

Am. Jur.

8A Am. Jur. 2d, Bail and Recognizance §§ 135 et seq.

4 Am. Jur. Pl & Pr Forms (Rev), Bail and Recognizance, Forms 111 et seq., (forfeiture proceedings).

4 Am. Jur. Pl & Pr Forms (Rev), Bail and Recognizance, Forms 121 et seq., (vacation of forfeiture).

CJS.

8 C.J.S., Bail §§ 150, 152 et seq.

Amendment Notes —

The 1999 amendment, in (1)(b), deleted “or” following “detained on another charge,” and inserted “with the provision that, upon release . . . if the first option were available.”

The 2011 amendment substituted “bail agent” for “bail” throughout and made minor stylistic changes.

Cross References —

Guaranteed arrest bond certificate in lieu of cash bail for certain traffic violations, see §63-9-27.

JUDICIAL DECISIONS

1. In general.

Bail bondsmen do not have authority to surrender a principal for civil debt. Brooks v. Pennington, 995 So. 2d 733, 2007 Miss. App. LEXIS 378 (Miss. Ct. App. 2007), cert. dismissed, 2008 Miss. LEXIS 680 (Miss. Dec. 4, 2008).

In cases where bail bondsmen attempt to surrender a principal, the following duties must be satisfied: (1) the sheriff or his agent must verify the identity of the defendant, that the defendant is in fact who the bondsman says he is; (2) the sheriff or his agent must verify the identity of the bondsman, and that the surrendering individual is in fact a licensed professional bondsman entitled to invoke Miss. Code Ann. §99-5-27; and (3) the sheriff or his agent must use reasonable care to verify that the bond upon which the accused is being surrendered is presently valid and binding on the principal and surety. Brooks v. Pennington, 995 So. 2d 733, 2007 Miss. App. LEXIS 378 (Miss. Ct. App. 2007), cert. dismissed, 2008 Miss. LEXIS 680 (Miss. Dec. 4, 2008).

Bail bondsmen, who were looking to arrest a man for jumping bail, did not have the authority to search the man’s mother’s home without a search warrant. Milburn v. Vinson, 850 So. 2d 1219, 2002 Miss. App. LEXIS 562 (Miss. Ct. App. 2002), cert. dismissed, 2004 Miss. LEXIS 607 (Miss. May 27, 2004).

Trial court did not err in ordering defendant’s arrest and reincarceration after defendant had been released on bond on a charge of aggravated assault but failed to appear for arraignment on the charge. Ray v. State, 844 So. 2d 483, 2002 Miss. App. LEXIS 690 (Miss. Ct. App. 2002), cert. denied, 846 So. 2d 229, 2003 Miss. App. LEXIS 485 (Miss. Ct. App. 2003).

The release of sureties on a bail bond from liability thereon is not within the discretion of the courts; they being authorized to grant such relief only when a legal right thereto has been made to appear. Nix v. State, 213 So. 2d 554, 1968 Miss. LEXIS 1292 (Miss. 1968), overruled, Wood v. State, 345 So. 2d 616, 1977 Miss. LEXIS 2470 (Miss. 1977); Stewart v. State, 150 Miss. 545, 117 So. 533, 1928 Miss. LEXIS 187 (Miss. 1928).

Where a defendant in criminal proceedings failed to appear and defaulted, but was surrendered by his sureties in open court before a final judgment of forfeiture of his bail bonds was entered, such surrender under the clear terms of Code 1942, § 2493, had the effect of discharging the surety’s liability. Resolute Ins. Co. v. State, 233 So. 2d 788, 1970 Miss. LEXIS 1672 (Miss. 1970).

Statutes authorizing sureties to arrest principal anywhere, or to authorize another to do so, are declaratory of common law. Cartee v. State, 162 Miss. 263, 139 So. 618 (Miss. 1932).

Constable who, at surety’s request, accompanied surety to another district to accept surrender of principal, had duty and right of arresting principal. Cartee v. State, 162 Miss. 263, 139 So. 618 (Miss. 1932).

In homicide prosecution against constable, refusal to instruct that it was constable’s duty to accept surety’s surrender of deceased principal held reversible error. Cartee v. State, 162 Miss. 263, 139 So. 618 (Miss. 1932).

OPINIONS OF THE ATTORNEY GENERAL

A private probation service does not have the same arresting authority that a bail bondsman has under this section. Perry, June 28, 1996, A.G. Op. #96-0399.

A Mississippi court may issue a “hold order” to the sheriff of another Mississippi county, and, in such cases, the bail will be entitled to a refund. Perry, May 26, 2000, A.G. Op. #2000-0248.

A bondsman may surrender his principal in accordance with the statute at any time, with or without cause, and relieve his obligation and liability to the court; specifically, a bondsman’s surrender right is not limited to situations where the defendant is found detained in another jurisdiction. Martin, May 26, 2000, A.G. Op. #2000-0282.

When a defendant who is released on bond is found incarcerated in another jurisdiction, the bondsman may surrender the defendant by notifying the authorities that are holding the defendant that he wishes to surrender the defendant and that a hold order is being requested; the bondsman should then present a written surrender notice to the court that has jurisdiction over the bond notifying the court of the defendant’s incarceration in another jurisdiction and request the court to place a “hold order” on the defendant, and the court should then send a “hold order” to the authorities that have incarcerated the defendant; the bondsman’s liability on the bond should then be released except for the costs of returning the defendant from the location of incarceration to the court with proper jurisdiction; the judge may prepare the “hold order” himself or direct the bondsman to prepare the “hold order” that is to be sent to the authorities holding the defendant; if a bondsman properly surrenders a defendant but the court fails to issue a “hold order” on the defendant, the bondsman should be released from his obligation on the bond and an arrest warrant may be issued for the defendant. Aldridge, Feb. 15, 2002, A.G. Op. #02-0046.

Where a prisoner is in custody of another jurisdiction, the bail must either personally return the prisoner or pay to the county the reasonable cost of the return if the other jurisdiction will not release the prisoner to bail. Rawson, Apr. 29, 2005, A.G. Op. 05-0088.

RESEARCH REFERENCES

ALR.

Bail: duration of surety’s liability on pretrial bond. 32 A.L.R.4th 504.

Bail: duration of surety’s liability on posttrial bail bond. 32 A.L.R.4th 575.

Bail: effect on liability of bail bond surety of state’s delay in obtaining indictment or bringing defendant to trial. 32 A.L.R.4th 600.

Am. Jur.

8A Am. Jur. 2d, Bail and Recognizance §§ 107 et seq., 120 et seq.

4 Am. Jur. Pl & Pr Forms (Rev), Bail and Recognizance, Forms 71 et seq., (voluntary surrender of principal).

4 Am. Jur. Pl & Pr Forms (Rev), Bail and Recognizance, Forms 91, 92, (authorization by surety to arrest principal).

CJS.

8 C.J.S., Bail § 143.

JUDICIAL DECISIONS

1. In general.

Statutes authorizing sureties to arrest principal anywhere, or to authorize another to do so, are declaratory of common law. Cartee v. State, 162 Miss. 263, 139 So. 618 (Miss. 1932).

Constable who, at surety’s request, accompanied surety to another district to accept surrender of principal, had duty and right of arresting principal. Cartee v. State, 162 Miss. 263, 139 So. 618 (Miss. 1932).

RESEARCH REFERENCES

Am. Jur.

8A Am. Jur. 2d, Bail and Recognizance §§ 107 et seq.

4 Am. Jur. Pl & Pr Forms (Rev), Bail and Recognizance, Forms 91, 92, (authorization by surety to arrest principal).

CJS.

8 C.J.S., Bail § 143.

OPINIONS OF THE ATTORNEY GENERAL

Once justice court judge issues mittimus to sheriff setting forth amount of bail and number of sureties required, sheriff can only release defendant when bond or other conditions set by judge have been fully satisfied and failure of sheriff to comply with mittimus could result in sheriff standing as special bail and having judgment rendered against him. Vess, March 18, 1994, A.G. Op. #94-0124.

RESEARCH REFERENCES

ALR.

Insanity of accused as affecting right to bail in criminal case. 11 A.L.R.3d 1385.

Am. Jur.

8A Am. Jur. 2d, Bail and Recognizance §§ 1, 2 et seq.

CJS.

8 C.J.S., Bail §§ 37 et seq.

Lawyers’ Edition.

Considerations affecting grant, continuance, reduction, or revocation of bail by individual Justice of Supreme Court. 30 L. Ed. 2d 952.

RESEARCH REFERENCES

ALR.

Pretrial preventive detention by state court. 75 A.L.R.3d 956.

Cross References —

Bail provisions under Mississippi Uniform Post-Conviction Collateral Relief Act, see §99-39-25.

RESEARCH REFERENCES

ALR.

Propriety of court’s dismissing indictment or prosecution because of failure of jury to agree after successive trials. 4 A.L.R.4th 1274.

Am. Jur.

8A Am. Jur. 2d, Bail and Recognizance § 96.

CJS.

8 C.J.S., Bail

Release and Detention Pending Proceedings §§ 48-52, 54.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Committee on Compilation, Revision and Publication of Legislation corrected a typographical error in a statutory reference appearing in the first sentence. The reference to “Section 99-3-7” was changed to “Section 97-3-7.” The Joint Committee ratified the correction at its April 28, 1999 meeting.

Amendment Notes —

The 2003 amendment added the third sentence, and inserted “a misdemeanor which is an act of” in the last sentence.

The 2007 amendment substituted “Section 99-3-7(5)” for “Section 97-3-7” in the first sentence; substituted the present fifth sentence for the former last sentence, which read: “Upon setting bail in any case involving a misdemeanor which is an act of domestic violence, the judge shall give particular consideration to the exigencies of the case, including the potential for further violence, and shall impose any specific conditions as he or she may deem necessary”; and added the last two sentences.

The 2009 amendment rewrote the first and third sentences and the last sentence.

The 2010 amendment added “the judge may order a twenty-four-hour cooling-off period” in the second sentence; deleted “certified” preceding “copy of any such order” in the last sentence; and made minor stylistic changes.

The 2012 amendment rewrote the section.

OPINIONS OF THE ATTORNEY GENERAL

Defendant who has been convicted of a misdemeanor which is an act of domestic violence and has filed an appeal may have conditions imposed on his appeal bond similar to those of a bail bond. A violation of such conditions may be remedied with revocation of the bond and incarceration pending appeal. Tallant, Sept. 26, 2003, A.G. Op. 03-0485.

Amendment Notes —

The 2008 amendment substituted the present second sentence for the former second sentence, which read: “Upon seventy-two (72) hours’ notice by the court or the clerk of court, the bail agent shall surrender the defendant in open court or to the sheriff.”

Cross References —

Bail bonds and bondsmen, generally, see §§83-39-1 et seq.

Cross References —

Rights of accused in criminal prosecution generally, see Miss. Const. Art. 3, § 26.

Charging the grand jury, see Miss. Unif. Cir. & County Ct. Prac. R. 7.01.

Form of the indictment, see Miss. Unif. Cir. & County Ct. Prac. R. 7.06.

JUDICIAL DECISIONS

1. In general.

2. Indictment sufficient.

1. In general.

While the State is not required to prosecute a criminal defendant under the statute with a lesser penalty when the facts which constitute a criminal offense may fall under either of two statutes, if the indictment is ambiguous, the accused can only be punished under the statute with the lesser penalty. Thus, a defendant who was indicted for escape was required to be prosecuted under §97-9-45, which simply takes away earned time towards parole, rather than §97-9-49, which provides for a possible sentence of up to two years, where the indictment was silent as to the applicable statute. Beckham v. State, 556 So. 2d 342, 1990 Miss. LEXIS 11 (Miss. 1990).

It is only necessary that misdemeanors be substantially charged and in charging them, the use of technical terms is not essential to a description of the offense. Wilson v. State, 80 Miss. 388, 31 So. 787, 1902 Miss. LEXIS 250 (Miss. 1902).

Extortion in office, under Code 1906, § 1161 [Code 1942, § 2144], being a common-law offense, may, under this section [Code 1942, § 2561], be charged according to the statute or common law, and it is not necessary under the latter to charge that it was “knowingly” done. State v. Jones, 71 Miss. 872, 15 So. 237, 1894 Miss. LEXIS 33 (Miss. 1894).

The statute does not apply in a case where the act charged is a misdemeanor at common law and a felony by statute. In such case the offense must be charged to have been committed “feloniously.” Wile v. State, 60 Miss. 260, 1882 Miss. LEXIS 45 (Miss. 1882).

2. Indictment sufficient.

Appellate court overruled defendant’s assertion that the indictment was defective because it did not state the statute under which he was charged, because the indictment clearly set out the elements of the crime with which he was charged; it was not necessary for an indictment to state a specific statute under which a defendant was charged. Trice v. State, 992 So. 2d 638, 2007 Miss. App. LEXIS 841 (Miss. Ct. App. 2007), cert. denied, 997 So. 2d 924, 2008 Miss. LEXIS 538 (Miss. 2008).

RESEARCH REFERENCES

ALR.

Validity of indictment as affected by substitution or addition of grand jurors after commencement of investigation. 2 A.L.R.4th 980.

Limitations on state prosecuting attorney’s discretion to initiate prosecution by indictment or by information. 44 A.L.R.4th 401.

Effect on operation of Speedy Trial Act (18 USCS §§ 3161 et seq.) of indictment returned by grand jury whose term has expired. 64 A.L.R. Fed. 916.

Practice References.

Blinka, Daniel D., and Imwinkelried, Edward J., Criminal Evidentiary Foundations (Michie).

George, Jr., B. James, Tymkovich, Timothy M., Coats, Nathan B., and Erickson, William H., United States Supreme Court Cases and Comments: Criminal Law and Procedure (Matthew Bender).

Mauriello, P. Thomas, Criminal Investigation Handbook (Matthew Bender).

Newton, Brent E., Practical Criminal Procedure: A Constitutional Manual, Second Edition (NITA).

Ordover, Abraham P., Criminal Law Advocacy (Matthew Bender).

Sacks, Garfield and Garfield, Criminal Defense Techniques (Matthew Bender Elite Products).

Schoenberg, Ronald L., Criminal Law Deskbook (Matthew Bender).

Shapiro, Jay, Criminal Practice Handbook, Fourth Edition (Michie).

Criminal Constitutional Law (Matthew Bender).

Mississippi Criminal and Traffic Law Manual (LexisNexis Law Enforcement).

Pretrial Motions in Criminal Prosecutions 4th Edition (LexisNexis).

JUDICIAL DECISIONS

1. In general.

2. Illustrative cases.

1. In general.

Trial court’s denial of defendant’s motion to sever was not an abuse of discretion because the State presented a prima facie case that the crimes were part of a common scheme or plan; defendant made no showing that the crimes were separate and distinct transactions. Graves v. State, 216 So.3d 1152, 2016 Miss. LEXIS 150 (Miss. 2016).

Trial court erred in imposing a general sentence because defendant was convicted of three separate offenses; specific sentences for each conviction were required. Aucoin v. State, 17 So.3d 142, 2009 Miss. App. LEXIS 155 (Miss. Ct. App. 2009), cert. denied, 2009 Miss. LEXIS 434 (Miss. Sept. 17, 2009), cert. denied, 17 So.3d 99, 2009 Miss. LEXIS 435 (Miss. 2009).

Circuit court did not err in refusing to sever Counts I and II of defendant’s indictment as they were separated by only one day, the alleged crimes were the same, and they involved substantially the same facts and witnesses. Parker v. State, 5 So.3d 458, 2008 Miss. App. LEXIS 580 (Miss. Ct. App. 2008), cert. denied, 11 So.3d 1250, 2009 Miss. LEXIS 131 (Miss. 2009).

Indictment stated that the offenses giving rise to the four counts with which defendant was charged were all part of a common scheme or plan; therefore, it was permissible for the State to charge defendant in a multi-count indictment. Davis v. State, 5 So.3d 435, 2008 Miss. App. LEXIS 366 (Miss. Ct. App. 2008).

Inclusion of the language found in the multicount indictment statute, Miss. Code Ann. §99-7-2(1), is not necessary for an indictment to be valid. Miller v. State, 973 So. 2d 319, 2008 Miss. App. LEXIS 45 (Miss. Ct. App.), cert. dismissed, 981 So. 2d 298, 2008 Miss. LEXIS 218 (Miss. 2008).

Defendant did not show ineffective assistance of counsel where, even if defense counsel had successfully moved to have the charges severed, given the strength of the State’s case against defendant, he could not reasonably have expected a different result on the manufacture-of-marijuana charge. Williams v. State, 971 So. 2d 581, 2007 Miss. LEXIS 571 (Miss. 2007).

Defendant’s motion for post-conviction relief was properly denied where the state did not improperly indict him under multiple indictments; Miss. Code Ann. §99-7-2(1) made single, multi-count indictments permissive, not mandatory. Jones v. State, 956 So. 2d 310, 2006 Miss. App. LEXIS 871 (Miss. Ct. App. 2006).

Trial court properly dismissed defendant’s motion for post-conviction relief after he was convicted of possession of more than two grams but less than 10 grams of cocaine, possession of more than 30 grams but less than 250 grams of marijuana, and possession of a firearm by a convicted felon, where the sentencing order was not illegal because he was sentenced separately on each charge pursuant to Miss. Code Ann. §99-7-2(3). Ward v. State, 944 So. 2d 908, 2006 Miss. App. LEXIS 860 (Miss. Ct. App. 2006).

Trial court properly denied defendant’s motion to sever three prescription forgery counts that occurred over a five-month period because the trial court applied the Corley Factors and found that five months was not a significant amount of time so as to require severance, and the total evidence in the case would have been admissible in separate trials of each count under Miss. R. Evid. 404(b). Rushing v. State, 911 So. 2d 526, 2005 Miss. LEXIS 612 (Miss. 2005).

As to verdicts and the imposition of separate sentences, separate charges on a multicount indictment may be handled in one hearing. Stovall v. State, 873 So. 2d 1056, 2004 Miss. App. LEXIS 454 (Miss. Ct. App. 2004).

Defendant’s capital murder convictions and death sentence were proper where the trial court did not err in denying defendant’s motion to sever count one of the indictment because the killings occurred within a few hours and were all part of the common scheme to rob his ex-father-in-law and eliminate any witnesses; additionally the murders were all interwoven and occurred at the same place and closely in time. Brawner v. State, 872 So. 2d 1, 2004 Miss. LEXIS 458 (Miss. 2004).

Multicount indictment is permissible if the offenses are based on the same act or transaction, if the offenses are so connected as to constitute a single transaction or occurrence, or if the offenses constitute parts of a common scheme or plan. Stone v. State, 867 So. 2d 1032, 2003 Miss. App. LEXIS 1026 (Miss. Ct. App. 2003).

Trial judge, in ruling on defendant’s motion for severance, recognized that the offenses occurred at the same place, that the entire incident was over in a matter of minutes, and that there would be difficulties if the fact witnesses were allowed only to testify to a specific charge since the offenses were so interrelated that telling the story of what happened would be much harder if the offenses were severed; defendant did not make a showing of how each offense was separate and distinct such that there was no reversible error in the trial court’s ruling. Riser v. State, 845 So. 2d 720, 2003 Miss. App. LEXIS 433 (Miss. Ct. App. 2003).

Trial court properly denied appellant’s motion for postconviction relief; appellant’s argument that it was error to have charged him in separate indictments was procedurally barred. Brooks v. State, 832 So. 2d 607, 2002 Miss. App. LEXIS 855 (Miss. Ct. App. 2002).

State was permitted to try charges of kidnapping and assault together because the charges were so intertwined and overlapping that they constituted one episode or event. Williams v. State, 791 So. 2d 895, 2001 Miss. App. LEXIS 311 (Miss. Ct. App. 2001).

The applicability of subsection (1) is not limited where some element of the necessary proof as to one charge would be inadmissible on the other charge were it being tried separately. Wright v. State, 797 So. 2d 1028, 2001 Miss. App. LEXIS 152 (Miss. Ct. App. 2001).

State bears burden of prima facie showing that offenses charged in multi-count indictment are within language of statute that allows multi-count indictments. Hughes v. State, 665 So. 2d 852, 1995 Miss. LEXIS 564 (Miss. 1995).

In hearing for severance of multi-count indictment, if state meets its burden of prima facie showing that offenses are within language of statute allowing multi-count indictments, defense may rebut by showing that offenses were separate and distinct acts or transactions. Hughes v. State, 665 So. 2d 852, 1995 Miss. LEXIS 564 (Miss. 1995).

In determining whether multi-count indictment warrants severance, trial court should consider time period between offenses, whether evidence proving each offense would be admissible to prove the other counts, and whether offenses are interwoven. Hughes v. State, 665 So. 2d 852, 1995 Miss. LEXIS 564 (Miss. 1995).

If trial court follows proper procedure in determining whether multi-count indictment warrants severance, Supreme Court will give deference to trial court’s findings on review, employing abuse of discretion standard. Hughes v. State, 665 So. 2d 852, 1995 Miss. LEXIS 564 (Miss. 1995).

Charges of 2 counts of sexual battery and one count of attempted sexual battery were properly combined in indictment, where transactions upon which offenses were based occurred over period of 5 months, and offenses were committed only against one child even when other children were present and available targets, which showed common plan. Hughes v. State, 665 So. 2d 852, 1995 Miss. LEXIS 564 (Miss. 1995).

When a defendant raises the issue of severance, a trial court should hold a hearing on the issue. The State has the burden of making a prima facie case showing that the offenses charged fall within the language of the statute allowing multi-count indictments. If the State meets its burden, the defendant may rebut by showing that the offenses were separate and distinct acts or transactions. In making its determination regarding severance, the trial court should pay particular attention to whether the time period between the occurrences is insignificant, whether the evidence proving each count would be admissible to prove each of the other counts, and whether the crimes are interwoven. If a trial court follows this procedure, the Supreme Court will review the trial court’s decision under the abuse of discretion standard giving due deference to the trial court’s findings. On review, the Supreme Court will defer to the trial court’s findings even if the jury later acquits the defendant on one or more counts or if the Supreme Court concludes on appeal that a directed verdict, j.n.o.v. or new trial should have been granted on one or more counts. Corley v. State, 584 So. 2d 769, 1991 Miss. LEXIS 480 (Miss. 1991).

An indictment charging 2 rapes and one attempted rape committed by the defendant upon the same victim at different times was proper. The charges were properly joined under one indictment since they were part of a common scheme or plan, pursuant to the language of §99-7-2(1)(b), in that they were connected by the identity of the victim and by the identity of the kind of act committed by the defendant. Furthermore, all of the evidence proving each count was fully admissible to prove each of the other counts and, therefore, if the State had tried the defendant at 3 separate trials, testimony as to the 2 other acts of rape would have been admissible at each of the 3 trials. Allman v. State, 571 So. 2d 244, 1990 Miss. LEXIS 705 (Miss. 1990).

On convictions for kidnapping and rape pursuant to §§97-3-53 and97-3-65, where the jury was unable to agree on life imprisonment as the appropriate sentence, and the court was required to impose some lesser sentence than life, each sentence was to be imposed without respect to the other so that the total of the sentences imposed could amount to more than the actuarial life expectancy of the defendant, even though the crimes grew out of a series of violent acts by one individual toward another individual in an unbroken chain of events. If this matter were treated differently, circumstances might arise where it would be impossible for the State to impose any meaningful sentence where more than one crime was committed. Erwin v. State, 557 So. 2d 799, 1990 Miss. LEXIS 57 (Miss. 1990), but see Strahan v. State, 729 So. 2d 800, 1998 Miss. LEXIS 343 (Miss. 1998).

A multi-count indictment is proper only where the charged offenses arise from a common transaction or occurrence or, when the occurrences are at different times, where that time period is insignificant. Thus, 2 burglaries could not be charged in the same indictment where the burglaries were committed on 2 different days and at least 2 days apart, the 2 houses involved in the burglaries belonged to different individuals and were miles apart, and nothing in the record indicated that there was a plan involved in burglarizing the houses. McCarty v. State, 554 So. 2d 909, 1989 Miss. LEXIS 499 (Miss. 1989).

An indictment improperly joined 8 counts of making harassing telephone calls where the indictment charged the defendant with 2 different crimes on 2 different dates against 2 different victims. Gray v. State, 549 So. 2d 1316, 1989 Miss. LEXIS 436 (Miss. 1989).

A multiple-count indictment, charging murder and aggravated assault, was permissible where both the murder and the aggravated assault arose from a single fusillade, the defendant presented the same defense – self-defense – to the two charges, almost all of the evidence admissible against the defendant on the murder count was also admissible against him on the assault count and visa-versa, and no legally cognizable prejudice could be said to have resulted from the consolidation at trial of the 2 charges. Blanks v. State, 542 So. 2d 222, 1989 Miss. LEXIS 165 (Miss. 1989).

2. Illustrative cases.

Trial court properly considered the appropriate factors before denying defendant’s motion to sever the two counts of the indictment; even in separate trials, the evidence would be admissible to prove the other count. Donaldson v. State, 262 So.3d 1135, 2018 Miss. App. LEXIS 303 (Miss. Ct. App. 2018), cert. denied, 260 So.3d 800, 2019 Miss. LEXIS 59 (Miss. 2019).

It was not error to try defendant for four murders at a single trial when there were four, single-count indictments rather than a multicount indictment. The State could have brought a multi-count indictment but was not required to do so. Flowers v. State, 240 So.3d 1082, 2017 Miss. LEXIS 431 (Miss. 2017), rev'd, — U.S. —, 139 S. Ct. 2228, 204 L. Ed. 2d 638, 2019 U.S. LEXIS 4196 (U.S. 2019).

Trial court erred in refusing to sever the simple-assault charges from the rape charge, because 18 days passed between the two incidents, the charges were not based on the same act or transaction, and the victims were not the same. Lomax v. State, 192 So.3d 975, 2016 Miss. LEXIS 235 (Miss. 2016).

Although defendant asserted that the indictment was fatally defective for failure to specify the contraband that defendant conspired to possess in a correctional facility, the two count indictment included the essential statutory elements of the charges against defendant and provided sufficient notice so that defendant suffered no prejudice in preparing a defense. Furthermore, defendant was procedurally barred from arguing an objection to a multi-count indictment on appeal because defendant failed to raise the objection at trial. Graham v. State, 204 So.3d 329, 2016 Miss. App. LEXIS 113 (Miss. Ct. App. 2016).

Trial court did not abuse its discretion by denying defendant’s motion to sever the sexual battery count from the child exploitation count where both charges were based on the same act or transaction, namely defendant’s sexual assault of the victim that he photographed. Moore v. State, 160 So.3d 728, 2015 Miss. App. LEXIS 182 (Miss. Ct. App. 2015).

Trial court did not err in failing to sever the counts of the indictment, as the offenses were similar in type and all had the same motive, acquiring money, and the fact that the offense had different victims was not controlling Gunn v. State, 174 So.3d 848, 2014 Miss. App. LEXIS 641 (Miss. Ct. App. 2014), cert. denied, — So.3d —, 2015 Miss. LEXIS 479 (Miss. 2015).

Although the indictment spanned approximately seven years, the trial court did not err in denying defendant’s motion to sever, as the trial court used the proper legal standard and considered factors of similar conduct, the same victim, and the time period to find that defendant’s acts constituted a common scheme or plan. Singleton v. State, 151 So.3d 1046, 2014 Miss. App. LEXIS 678 (Miss. Ct. App. 2014).

Defendant’s sentence was affirmed because the trial judge was well within his authority in Miss. Code Ann. §99-19-21 to impose concurrent or consecutive sentences, and pursuant to Miss. Code Ann. §99-7-2(3), the court could impose separate sentences for each of his sexual battery of a minor convictions under Miss. Code Ann. §97-3-95(1)(d). Eason v. Epps, 32 So.3d 538, 2009 Miss. App. LEXIS 723 (Miss. Ct. App. 2009).

Defendant’s indictment included the relevant language from Miss. Code Ann. §97-3-79 and the evidence clearly showed that the armed robbery crimes were based on the same act or transaction. Thus, there was no defect in the indictment under Miss. Code Ann. §99-7-2(1). Thomas v. State, 14 So.3d 812, 2009 Miss. App. LEXIS 520 (Miss. Ct. App. 2009).

Indictment charged defendant with one count of touching a child for lustful purposes pursuant to Miss. Code Ann. §97-5-23(1) and one count of sexual battery pursuant to Miss. Code Ann. §97-3-95(1)(d), and the crimes formed a common scheme of sexual misconduct and all the crimes occurred over a period of time against the same victim in a similar manner; thus, the court rejected defendant’s claim that it was error for him to be tried on a multi-count indictment, for purposes of Miss. Code Ann. §99-7-2, plus the court noted that the trial court instructed the jury to evaluate each count separately and return separate verdicts. Wilson v. State, 990 So. 2d 798, 2008 Miss. App. LEXIS 572 (Miss. Ct. App. 2008).

Because defendant did not raise the issue at trial that it was error for him to be tried on a multi-count indictment, defendant was procedurally barred from asserting the issue on appeal, but because the issue affected his substantial rights, the court reviewed the matter under the plain error doctrine. Wilson v. State, 990 So. 2d 798, 2008 Miss. App. LEXIS 572 (Miss. Ct. App. 2008).

Denial of petitioner state death row inmate’s motion for severance did not violate his Fifth Amendment rights because Miss. Code Ann. §99-7-2 allowed for joinder of the four counts of capital murder and the state did not tie a weak case to a stronger one; the evidence against the inmate in each count was roughly the same and overwhelming, and it was not likely that four different juries would have returned different verdicts. Stevens v. Epps, 2008 U.S. Dist. LEXIS 69564 (S.D. Miss. Sept. 15, 2008), aff'd, 618 F.3d 489, 2010 U.S. App. LEXIS 18696 (5th Cir. Miss. 2010).

Where defendant was charged with armed robbery, kidnapping, and possession of a firearm as a convicted felon and where the trial court denied defendant’s motion to sever the latter charge, the trial court erred in not permitting defendant to stipulate to the prior conviction and permitting the State to present evidence regarding the conviction because evidence of the prior conviction was a necessary element of the crime for which defendant was on trial but evidence of the specific nature of the crime for which defendant was previously convicted was not an essential element of the crime for which defendant was on trial. Because the evidence of defendant’s guilt was overwhelming, however, the error was harmless. Williams v. State, 991 So. 2d 593, 2008 Miss. LEXIS 399 (Miss. 2008).

Defendant’s confession as to a possession of cocaine count did not materially prejudice his right to a fair trial on a sale or transfer of cocaine count because a jury was instructed to consider each count separately and substantial evidence supported defendant’s conviction on the sale count. Armstead v. State, 978 So. 2d 642, 2008 Miss. LEXIS 169 (Miss. 2008).

Appellant’s indictment was not grounds for post-conviction relief because appellant waived the argument when he entered his guilty plea and, while appellant claimed that the indictment was defective for failing to include the language of Miss. Code Ann. §99-7-2(1), there was no defect in the indictment because (1) inclusion of the language found in §99-7-2(1) was not necessary for the indictment to be valid; (2) the indictment tracked the language Miss. Code Ann. §41-29-139, which was the relevant statute for the crime of sale of a controlled substance; and (3) the indictment included the applicable statute number. Miller v. State, 973 So. 2d 319, 2008 Miss. App. LEXIS 45 (Miss. Ct. App.), cert. dismissed, 981 So. 2d 298, 2008 Miss. LEXIS 218 (Miss. 2008).

Two rapes occurred only three hours apart, and clearly a span of only three hours between the two crimes was not a sufficient lapse of time to weigh in favor of severance; also, the rapes were interwoven because: (1) they occurred only three hours apart; (2) both of defendant’s victims knew him personally; (3) he showed up at both victims’ homes unannounced and told them that he just needed a place to sit down for a minute because his parents would not allow him into their home; (4) he asked both victims for a glass of water before he jumped them and raped them; and (5) he held a gun to their heads. Golden v. State, 968 So. 2d 378, 2007 Miss. LEXIS 530 (Miss. 2007), cert. dismissed, 977 So. 2d 343, 2008 Miss. LEXIS 111 (Miss. 2008).

Denial of the inmate’s petition for post-conviction relief pursuant to Miss. Code Ann. §§99-39-1 et seq. was appropriate in part because the two murders that he was convicted of were interwoven; thus, the trial court did not abuse its discretion in its decision not to sever the counts. Turner v. State, 953 So. 2d 1063, 2007 Miss. LEXIS 2 (Miss. 2007).

Motion to sever was properly denied as to charges relating to church burglaries because they were part of a common scheme or plan, pursuant to Miss. Code Ann. §99-7-2; however, drug and paraphernalia charges stemming from evidence found at defendant’s residence during the execution of a search warrant were severed. Dimaio v. State, 951 So. 2d 581, 2006 Miss. App. LEXIS 782 (Miss. Ct. App. 2006).

Denial of the inmate’s petition for post-conviction relief was proper where the sentencing order was appropriate pursuant to Miss. Code Ann. §99-7-2 because the circuit court imposed separate sentences for each count of the indictment. Ramage v. State, 914 So. 2d 274, 2005 Miss. App. LEXIS 772 (Miss. Ct. App. 2005).

Common thread running through each of the counts was the gun. It was taken in the burglary, it was possessed, and it was sold, and each of the offenses were based on two or more acts or transactions connected together or constituting parts of a common scheme or plan. It appeared that the scheme or plan was to commit a burglary and get items which could be sold illegally for cash. Severance of the counts was not warranted, and there was no impediment to trying count three (felon in possession of a firearm), with counts one (burglary of an inhabited dwelling) and two (sale of a stolen firearm), even though part of the necessary proof on count three would not have been admissible in counts one and two. Harris v. State, 908 So. 2d 868, 2005 Miss. App. LEXIS 530 (Miss. Ct. App. 2005).

Defendant’s counsel was not ineffective for failing to request a severance of the two charges against defendant as the acts could be tried together under Miss. Code Ann. §99-7-2 as defendant sold the same drug to the same undercover officer within 72 hours. Watkins v. State, 874 So. 2d 486, 2004 Miss. App. LEXIS 485 (Miss. Ct. App. 2004).

Trial court did not err in denying defendant’s motion to sever counts of grand larceny and auto theft; where a pick-up truck was stolen on the same night that defendant was seen attempting to detach a trailer from a trailer hitch, the evidence showed a common scheme to obtain a pickup truck with which to steal equipment. Stone v. State, 867 So. 2d 1032, 2003 Miss. App. LEXIS 1026 (Miss. Ct. App. 2003).

In a case where defendant was convicted of two counts of lustful touching of a child and two counts of sexual battery, since the trial court properly held a hearing concerning severance and also made it known that the jury would be required to evaluate each count of the indictment individually, the trial court did not abuse its discretion when it denied the motion for severance. Broderick v. State, 878 So. 2d 103, 2003 Miss. App. LEXIS 855 (Miss. Ct. App. 2003), cert. denied, 878 So. 2d 66, 2004 Miss. LEXIS 937 (Miss. 2004).

The fact that there was a multicount indictment against the defendant that pertained to separate and distinct crimes did not mandate reversal where the defendant was tried on charges of armed robbery and burglary of an inhabited dwelling stemming from the same incident and the remaining charges in the indictment were severed prior to trial. Washington v. State, 800 So. 2d 1140, 2001 Miss. LEXIS 256 (Miss. 2001).

As the second of two armed robberies was part of common plan, and the first robbery had been completed just shortly before commission of the second began, the court did not err in refusing to sever the offenses. Williams v. State, 794 So. 2d 1019, 2001 Miss. LEXIS 236 (Miss. 2001).

A multi-count indictment was in compliance with this section, notwithstanding that all of the crimes involved different victims, since the defendant’s crime spree constituted a “common scheme or plan” as contemplated in subsection 1(b); all of the events occurred over the brief period of seven hours in relatively close proximity to each other and all of the offenses were interrelated as they each involved assault and/or theft of property. Patrick v. State, 754 So. 2d 1194, 2000 Miss. LEXIS 49 (Miss. 2000).

There was no improper multiplicity or duplicity in an indictment that charged the defendant with four distinct and separate counts of embezzlement in Counts I - IV and one count of embezzlement that covered a time frame exclusive of the specific dates enumerated in Counts I - IV, but inclusive of the dates surrounding Counts II - IV. Taylor v. State, 754 So. 2d 598, 2000 Miss. App. LEXIS 25 (Miss. Ct. App. 2000).

The court properly allowed the joint trial of two counts for the sale of marijuana based on a common plan or scheme to sell marijuana to callers who paged him and met him at a specific location; a different result was not required by the fact that the second buy was not arranged until the first buy was completed or that the sales involved separate purchasers and occurred at separate times. Ott v. State, 722 So. 2d 576, 1998 Miss. LEXIS 522 (Miss. 1998).

OPINIONS OF THE ATTORNEY GENERAL

Where a person commits multiple acts of receiving more Temporary Assistance for Needy Families than that to which he or she is entitled, he or she may be tried in a single proceeding and separate sentences for each conviction may be imposed. Taylor, November 6, 1998, A.G. Op. #98-0665.

RESEARCH REFERENCES

ALR.

Additional peremptory challenges because of multiple criminal charges. 5 A.L.R.4th 533.

Joinder of offenses under Rule 8(a), Federal Rules of Criminal Procedure.39 A.L.R. Fed. 479.

Am. Jur.

41 Am. Jur. 2d, Indictments and Informations §§ 196 et seq.

8 Am. Jur. Pl & Pr Forms (Rev), Criminal Procedure, Forms 91-102, (proceedings to quash, dismiss, or set aside accusatory pleading).

5 Am. Jur. Trials, §§ 12-20, (pretrial procedures and motions in criminal cases).

CJS.

42 C.J.S., Indictments and Informations §§ 215, 218 et seq.

Law Reviews.

1989 Mississippi Supreme Court Review: Multiple Count Indictments. 59 Miss. L. J. 887, Winter, 1989.

Practice References.

Blinka, Daniel D., and Imwinkelried, Edward J., Criminal Evidentiary Foundations (Michie).

George, Jr., B. James, Tymkovich, Timothy M., Coats, Nathan B., and Erickson, William H., United States Supreme Court Cases and Comments: Criminal Law and Procedure (Matthew Bender).

Mauriello, P. Thomas, Criminal Investigation Handbook (Matthew Bender).

Newton, Brent E., Practical Criminal Procedure: A Constitutional Manual, Second Edition (NITA).

Ordover, Abraham P., Criminal Law Advocacy (Matthew Bender).

Sacks, Garfield and Garfield, Criminal Defense Techniques (Matthew Bender Elite Products).

Schoenberg, Ronald L., Criminal Law Deskbook (Matthew Bender).

Shapiro, Jay, Criminal Practice Handbook, Fourth Edition (Michie).

Criminal Constitutional Law (Matthew Bender).

Mississippi Criminal and Traffic Law Manual (LexisNexis Law Enforcement).

Pretrial Motions in Criminal Prosecutions 4th Edition (LexisNexis).

Cross References —

Indictments for violation of liquor laws not being quashed for want of form or having negative exceptions, see §99-7-29.

Necessity for formal or technical words in an indictment, see Miss. Unif. Cir. & County Ct. Prac. R. 7.06.

JUDICIAL DECISIONS

1. In general.

2. Particular crimes.

1. In general.

The habitual offender portion of an indictment which was returned under §99-19-83 was faulty in that it did not give the date of the judgment for a prior conviction and, therefore, the conviction should not have been allowed to be used in the habitual sentencing portion of the trial. Ormond v. State, 599 So. 2d 951, 1992 Miss. LEXIS 153 (Miss. 1992).

Defendants were sufficiently apprised of the offenses with which they were charged where the indictment cited and quoted relevant statutory language and provided a concise description of the essential facts pertaining to each offense. King v. State, 580 So. 2d 1182, 1991 Miss. LEXIS 319 (Miss. 1991).

The entry of a knowing and voluntary guilty plea waives all other defects or insufficiencies in the indictment, with only 2 exceptions; the principle exception to the general rule is that the failure of the indictment to charge a criminal offense or, more specifically, to charge an essential element of a criminal offense, is not waived, and additionally, a guilty plea does not waive subject matter jurisdiction. Jefferson v. State, 556 So. 2d 1016, 1989 Miss. LEXIS 485 (Miss. 1989).

The fact that a defendant could have been prosecuted under either of 2 statutes did not require the state to select the offense with the lesser penalty so long as the indictment made clear which statute the state did select for prosecution. Craig v. State, 520 So. 2d 487, 1988 Miss. LEXIS 44 (Miss. 1988).

An indictment which charges the commission of a crime in the language of a statute, or in words aptly describing the offense, is sufficient although it does not designate the statute. Pearson v. State, 248 Miss. 353, 158 So. 2d 710, 1963 Miss. LEXIS 401 (Miss. 1963).

An indictment must state name of victim of an offense where that is an element of the offense, and a failure to state or material variance between statement and proof of the name is fatal. Hughes v. State, 207 Miss. 594, 42 So. 2d 805, 1949 Miss. LEXIS 372 (Miss. 1949).

Ordinarily, it is not necessary for an indictment which properly sets forth the commission of a crime in language that brings it within the provisions of a statute to refer specifically to the statute. Rogers v. State, 198 Miss. 495, 22 So. 2d 550, 1945 Miss. LEXIS 220 (Miss. 1945).

Omission of allegations in an indictment which go to the very essence of the offense attempted to be charged are not waived by defendant’s failure to demur to the indictment. Rogers v. State, 198 Miss. 495, 22 So. 2d 550, 1945 Miss. LEXIS 220 (Miss. 1945).

Where the words of a statute defining a crime are so specific as to give notice of the act made unlawful and so exclusive as to prevent its application to other acts it is sufficient to charge a statutory crime in an indictment in the language of the statute. State v. Hinton, 139 Miss. 513, 104 So. 354, 1925 Miss. LEXIS 172 (Miss. 1925).

A clerical omission of an otherwise essential word in an indictment will not render the indictment void where the indictment sets out the nature and cause of the accusation. Smith v. State, 132 Miss. 521, 97 So. 4, 1923 Miss. LEXIS 87 (Miss. 1923).

The omission of the word “feloniously” from an indictment charging an offense in the language of the statute cannot be raised in the supreme court on appeal for the first time, where the indictment otherwise informs the accused of the nature and cause of the accusation against him. Patterson v. State, 127 Miss. 256, 90 So. 2, 1921 Miss. LEXIS 220 (Miss. 1921).

Statute applied and words “contrary to the form of the statute,” held to be unnecessary. Smith v. State, 58 Miss. 867, 1881 Miss. LEXIS 55 (Miss. 1881).

The use of words substantially synonymous with those in the statute is sufficient. Harrington v. State, 54 Miss. 490, 1877 Miss. LEXIS 32 (Miss. 1877); Roberts v. State, 55 Miss. 421, 1877 Miss. LEXIS 152 (Miss. 1877).

While it is better and safer to follow approved precedents and to adhere closely and precisely to the statutory description of offenses, yet the indictment will be good if “the offense be certainly and substantially described.” Kline v. State, 44 Miss. 317, 1870 Miss. LEXIS 114 (Miss. 1870).

The general rule is modified by the statute (Code 1906, § 1423 [Code 1942, § 2446]), so as to render unnecessary merely formal or technical words if, without them, the offense be certainly and substantially described. Kline v. State, 44 Miss. 317, 1870 Miss. LEXIS 114 (Miss. 1870).

Statutory indictments: When the enacting clause describes the offense with certain exceptions named therein, it is necessary to negative the exceptions, but where the exceptions are in separate clauses of the statute, they may be omitted from the indictment and the defendant must show that his case comes within them to avail himself of their benefit. Kline v. State, 44 Miss. 317, 1870 Miss. LEXIS 114 (Miss. 1870).

If there is in the language of the statute no sufficient words to define any offense, then the use of the exact and technical language of the statute alone is not sufficient, but in addition to the statutory language the full measure of the offense must be charged by the use of such words as are necessary and proper under established rules of law to characterize the crime. Jesse v. State, 28 Miss. 100, 1854 Miss. LEXIS 154 (Miss. 1854); Sarah v. State, 28 Miss. 267, 1854 Miss. LEXIS 172 (Miss. 1854); Harrington v. State, 54 Miss. 490, 1877 Miss. LEXIS 32 (Miss. 1877); Sullivan v. State, 67 Miss. 346, 7 So. 275, 1889 Miss. LEXIS 54 (Miss. 1889).

2. Particular crimes.

Indictment for sexual battery was insufficient where it failed to notify defendant that he was being charged with sexually penetrating victim without victim’s consent; indictment did not include without consent in its charge. Peterson v. State, 671 So. 2d 647, 1996 Miss. LEXIS 54 (Miss. 1996).

An indictment properly charged the defendant with simple assault under §97-3-7, even though the indictment contained the word “feloniously” which does not appear in the statute. Reining v. State, 606 So. 2d 1098, 1992 Miss. LEXIS 542 (Miss. 1992).

An indictment charging a defendant with intentional murder and assigning a maximum penalty of life was sufficient to give the defendant fair notice of the crime charged, even though the jury instructions in the ensuing prosecution failed to include a charge that the murder was intentional. Berry v. State, 575 So. 2d 1, 1990 Miss. LEXIS 849 (Miss. 1990), cert. denied, 500 U.S. 928, 111 S. Ct. 2042, 114 L. Ed. 2d 126, 1991 U.S. LEXIS 2673 (U.S. 1991).

An indictment charging the defendant with rape under §97-3-65 was proper, even though the indictment used the language “a female person under the age of 14,” while the statute states, in pertinent part, “a child under the age of 14.” The indictment’s language was wholly included within the statutory language, since a female person under the age of 14 is a child under the age of 14; the indictment need not use the precise words of the statute. Furthermore, the defendant was not prejudiced in the preparation of his defense or exposed to double jeopardy by the indictment’s language. Allman v. State, 571 So. 2d 244, 1990 Miss. LEXIS 705 (Miss. 1990).

Surplus language contained in an indictment for rape under §97-3-65(1) did not prejudice the defendant and was not improper where the indictment used the language “unlawfully, willfully and feloniously rape, ravish and carnally know.” The term “unlawfully” appeared in both the indictment and the statute, the term “feloniously” means unlawfully with the intent to commit a felony-grade crime, “willfully” simply means voluntarily, and “ravish” means rape. Allman v. State, 571 So. 2d 244, 1990 Miss. LEXIS 705 (Miss. 1990).

The State could properly proceed against a defendant under §97-29-45(1)(c), which prohibits making a harassing telephone call, rather than under §97-29-45(1)(e), which prohibits repeated harassing telephone calls, even though the defendant allegedly made 7 harassing telephone calls to a single individual, so long as the indictment was clear and unequivocal. Gray v. State, 549 So. 2d 1316, 1989 Miss. LEXIS 436 (Miss. 1989).

Under the constitutions of both the United States and the State of Mississippi and under §99-19-5, a jury instruction on child fondling should not have been given where the indictment charged only forcible rape since child fondling is not a necessarily included offense of forcible rape and, therefore, the indictment did not sufficiently notify the defendant that he might face a charge of child fondling. Hailey v. State, 537 So. 2d 411, 1988 Miss. LEXIS 632 (Miss. 1988).

It is not necessary that an indictment charging conspiracy include the penalty sections of the code applicable to the underlying crime in order to trigger the conspiracy provisions of §97-1-1, and to properly charge a felony. Gardner v. State, 531 So. 2d 805, 1988 Miss. LEXIS 481 (Miss. 1988).

An indictment was sufficient to notify the defendant that he had been charged with rape where it alleged that he made a lewd suggestion combined with a physical act (the placing of a towel over the victim’s face), which was an overt act sufficient for the ultimate commission of a rape. Alexander v. State, 520 So. 2d 127, 1988 Miss. LEXIS 53 (Miss. 1988).

An indictment under the wording of the statute making it unlawful for the holder of a permit for the sale of beer or wine at retail to sell, give or furnish any beer or wine to a person under the age of 18 years, was not defective for failing to charge the defendant with knowing that his employee sold or gave beer to a minor, where the statute itself does not use the word “knowing” and where the indictment was based upon an affidavit so worded as to show that the defendant knew of his employee’s activities in selling beer to a minor. State v. Labella, 232 So. 2d 354, 1970 Miss. LEXIS 1620 (Miss. 1970).

An indictment charging the holder of a permit for the sale of beer and wine at retail with selling, giving or furnishing beer to a person under 18 years of age, was not defective in failing to charge the defendant with knowledge that his employee sold or gave beer to the minor, since the defendant’s lack of knowledge of the acts of his employee was a defense and a question of fact for submission to the jury, and neither matters of evidence nor matters of defense need by averred in an indictment or information. State v. Labella, 232 So. 2d 354, 1970 Miss. LEXIS 1620 (Miss. 1970).

Where an indictment charged that the defendant unlawfully, feloniously and by culpable negligence, did kill a person contrary to Code 1942, § 2220, and against the peace and dignity of the State of Mississippi, the indictment adequately charged the defendant with the offense of manslaughter by culpable negligence in operation of an automobile, despite the mistake in citation of the statute, inasmuch as reference to the code section in the indictment was surplusage and unnecessary to the charge of the crime for which the defendant was tried. Dendy v. State, 224 Miss. 208, 79 So. 2d 827, 1955 Miss. LEXIS 481 (Miss. 1955).

In a prosecution for rape where the indictment charged that prosecuting witness was a female of the age of 12 years or more, the failure of the indictment to allege that the prosecutrix was a child or a person or a human being did not constitute a fatal defect in the indictment. Gillespie v. State, 215 Miss. 380, 61 So. 2d 150, 1952 Miss. LEXIS 577 (Miss. 1952).

Insufficiency of bigamy indictment may be raised for first time on appeal when indictment is fatally defective for failure to set forth time, place and circumstance of former marriage, or name of person with whom former marriage is alleged to have been contracted. Wash v. State, 206 Miss. 858, 41 So. 2d 29, 1949 Miss. LEXIS 307 (Miss. 1949).

An indictment for grand larceny containing an incongruous description of the cow allegedly stolen if defective should have been availed of by demurrer and such defect could not be raised for first time on appeal. Clark v. State, 39 So. 2d 783 (Miss. 1949).

RESEARCH REFERENCES

ALR.

Use of abbreviation in indictment or information. 92 A.L.R.3d 494.

Am. Jur.

41 Am. Jur. 2d, Indictments and Informations §§ 115 et seq.

CJS.

42 C.J.S., Indictments and Informations §§ 176 et seq.

Cross References —

Failure to state the correct date on which the offense was allegedly committed, see Miss. Unif. Cir. & County Ct. Prac. R.7.06.

JUDICIAL DECISIONS

1. In general.

2. Time, generally.

3. —Amendment.

4. Venue.

1. In general.

Variance in the indictment and the proof was one of form only; it did not prejudice defendant’s defense, or his theory of the case. Leonard v. State, 972 So. 2d 24, 2008 Miss. App. LEXIS 16 (Miss. Ct. App. 2008).

In defendant’s prosecution for wire fraud, a change of date in the indictment did not rise to a level of prejudice to defendant. Mississippi law forgives indictments that are flawed for “stating the time imperfectly” of an offense, where the timing of such is not an essential element of the charge. McGee v. State, 853 So. 2d 125, 2003 Miss. App. LEXIS 159 (Miss. Ct. App.), cert. denied, 852 So. 2d 577, 2003 Miss. App. LEXIS 834 (Miss. Ct. App. 2003).

An indictment should state some time and place where the offense was committed; otherwise it is demurrable. State v. Glennen, 93 Miss. 836, 47 So. 550, 1908 Miss. LEXIS 154 (Miss. 1908).

2. Time, generally.

Defendant’s conviction for fondling a child under the age of 18 was appropriate because his indictment sufficiently apprised him of all of the charges against him. Further, there was nothing indicating that time was an essential element of the offense, and there was nothing in the record that indicated that defendant planned to assert a time-sensitive defense, such as an alibi. Sellars v. Walgreen Co., 971 So. 2d 1278, 2008 Miss. App. LEXIS 3 (Miss. Ct. App. 2008).

Fact that a traffic ticket issued in a DUI case had a scrivener’s error regarding the date of offense did not render it ineffective under Miss. Unif. Cir. & County Ct. Prac. R. 7.06 because defendant was put on notice of the date of the offense by the fact that the date was correct on the other two citations he was issued. Scott v. City of Booneville, 962 So. 2d 698, 2007 Miss. App. LEXIS 185 (Miss. Ct. App.), cert. denied, 968 So. 2d 948, 2007 Miss. LEXIS 637 (Miss. 2007).

Defendant’s conviction for sexual battery was affirmed; while the indictment did not identify singular dates as to when the incidents of sexual battery occurred, the indictment was not insufficient under Miss. Code Ann. §99-7-5 because the indictment adequately prepared defendant and allowed him to prepare any possible defense. Allred v. State, 908 So. 2d 889, 2005 Miss. App. LEXIS 549 (Miss. Ct. App. 2005).

Defendant’s indictment accused him of two counts of sexual battery against one child; the wording of the counts was identical, but the evidence and jury instruction conference indicated that the two counts were based upon defendant’s confession of two separate incidents of sexual contact with the victim. Because there was nothing to indicate that time was an essential element of the offense, and defendant made no mention of an alibi defense, defendant was fully and fairly advised of the charges against him. Baker v. State, 930 So. 2d 399, 2005 Miss. App. LEXIS 447 (Miss. Ct. App. 2005), cert. denied, 933 So. 2d 303, 2006 Miss. LEXIS 497 (Miss. 2006).

Defendant’s conviction for sexual battery was affirmed; while the indictment did not identify singular dates as to when the incidents of sexual battery occurred, the indictment was not insufficient under Miss. Code Ann. §99-7-5 because the indictment adequately prepared defendant and allowed him to prepare any possible defense. Allred v. State, 908 So. 2d 889, 2005 Miss. App. LEXIS 549 (Miss. Ct. App. 2005).

In an aggravated assault case, defendant was not prejudiced by the lack of specificity in the listing of the date of the offenses charged in the indictment, as a change in the date of the offenses did not affect the viability of defendant’s defense, as the date was not the essence of the crimes and was, therefore, amendable and not fatal. Davis v. State, 866 So. 2d 1107, 2003 Miss. App. LEXIS 900 (Miss. Ct. App. 2003).

In a prosecution for sexual battery of a child under the age of 14, the court properly denied a motion to compel the state to declare with more certainty exactly when the alleged offenses occurred; given the limited intellectual abilities of the victim, it would have been impossible for the state to prove the exact date of the offense with any more precision than had already been demonstrated. Little v. State, 744 So. 2d 339, 1999 Miss. App. LEXIS 314 (Miss. Ct. App. 1999).

An indictment charging a defendant with committing sexual battery “on or about” a certain date was specific enough to put the defendant on notice of the charge against him and the approximate date the crime took place, though the evidence presented at trial indicated that the sexual battery occurred 4 days after the date set forth in the indictment. Daniel v. State, 536 So. 2d 1319, 1988 Miss. LEXIS 611 (Miss. 1988).

An indictment charging escape from jail was not insufficient though it charged that the escape occurred one day before the date the escape actually took place. Corley v. State, 536 So. 2d 1314, 1988 Miss. LEXIS 613 (Miss. 1988).

Evidence of prior molestation of child was admissible because in context of sexual crimes, relaxation of rule that prosecution cannot offer evidence of criminal conduct not charged in indictment of which accused has not been convicted has long been recognized; substantially similar prior sexual acts with same person, that is, sexual acts of same general type as those charged in indictment, are as matter of common sense probative of issue being tried. Wilson v. State, 515 So. 2d 1181, 1987 Miss. LEXIS 2926 (Miss. 1987).

An indictment incorrectly charging that the grand larceny was committed on November 14, 1968, while the evidence showed that it was actually committed on August 16, was not insufficient where the defendant was not surprised or prejudiced by testimony that the offense occurred on August 16, and in fact offered testimony of alibi for both dates. Deaton v. State, 242 So. 2d 452, 1970 Miss. LEXIS 1385 (Miss. 1970).

In a prosecution on a charge of assault and battery with a stick, time was not of the essence and an indictment was sufficient, notwithstanding the failure to allege the day of the month on which the crime was committed. Moffett v. State, 223 Miss. 276, 78 So. 2d 142, 1955 Miss. LEXIS 378 (Miss. 1955).

An indictment is not defective because it does not state definitely the time at which the offense was committed. Washington v. State, 222 Miss. 782, 77 So. 2d 260, 1955 Miss. LEXIS 663 (Miss. 1955).

Indictment for embezzlement under Code 1942, § 2118, which alleges that embezzlement was committed on November 17, 1948, when in fact indictment was returned on that date, is not invalid for not stating date alleged crime was committed. State v. May, 208 Miss. 862, 45 So. 2d 728, 1950 Miss. LEXIS 306 (Miss. 1950).

In prosecution for trespass, state was not required to prove commission of offense on date alleged in affidavit, but could prove commission on any date within two years prior to indictment. Card v. State, 182 Miss. 229, 181 So. 524, 1938 Miss. LEXIS 176 (Miss. 1938).

Refusal of instruction which in effect would require the state to prove commission of offense on date alleged in affidavit held not reversible. Card v. State, 182 Miss. 229, 181 So. 524, 1938 Miss. LEXIS 176 (Miss. 1938).

Proof of possession of liquor, subsequent to date charged in the indictment for possession, held competent. Smith v. State, 144 Miss. 872, 110 So. 690, 1926 Miss. LEXIS 424 (Miss. 1926).

Ordinarily, date of commission of offense need not be alleged, but on demurrer to indictment facts alleged therein, including date, must be assumed as true. State v. Clark, 145 Miss. 207, 110 So. 447, 1926 Miss. LEXIS 15 (Miss. 1926).

An allegation as to the time of the commission of embezzlement held to be sufficient. State v. Yeates, 140 Miss. 224, 105 So. 498, 1925 Miss. LEXIS 253 (Miss. 1925).

Under a charge of unlawful cohabitation proof of acts within two years before indictment is permissible. State v. Meyer, 135 Miss. 878, 101 So. 349, 1924 Miss. LEXIS 84 (Miss. 1924).

Where the indictment charged the offense to have been committed Jan. 23, 1922, evidence may be admitted of the commission of the said crime at any time two years prior to the finding of the indictment, where the two-years statute of limitations barred the offense. Kolb v. State, 129 Miss. 834, 93 So. 358, 1922 Miss. LEXIS 97 (Miss. 1922).

In a prosecution for the unlawful sale of liquor, the state relied on a sale at a different time from that laid in the indictment. This entitled the accused to a continuance on timely application and proper showing; but on his failure to make such application he has waived his right after verdict. Peebles v. State, 105 Miss. 834, 63 So. 271, 1913 Miss. LEXIS 266 (Miss. 1913).

Evidence of the sale of liquor after date laid in the indictment warrants a conviction. Oliver v. State, 101 Miss. 382, 58 So. 6, 1912 Miss. LEXIS 5 (Miss. 1912).

3. —Amendment.

In defendant’s prosecution for wire fraud, a change of date in the indictment did not rise to a level of prejudice to defendant. Mississippi law forgives indictments that are flawed for “stating the time imperfectly” of an offense, where the timing of such is not an essential element of the charge. McGee v. State, 853 So. 2d 125, 2003 Miss. App. LEXIS 159 (Miss. Ct. App.), cert. denied, 852 So. 2d 577, 2003 Miss. App. LEXIS 834 (Miss. Ct. App. 2003).

In a prosecution for illegal distribution of a controlled substance, time is not an essential element and, therefore, an amendment of the indictment to change the date on which the offense occurred is one of form only. Martin v. State, 724 So. 2d 420, 1998 Miss. App. LEXIS 974 (Miss. Ct. App. 1998).

In a prosecution for rape, the court properly allowed the amendment of the indictment with respect to the date of the rape where the victim’s statement to the police, which contained the amended date, was admitted into evidence without objection and, assumedly, had been provided to the defendant. Levy v. State, 724 So. 2d 405, 1998 Miss. App. LEXIS 957 (Miss. Ct. App. 1998).

The state was permitted to amend an indictment charging sale of cocaine to change the date of the alleged sale, even though the jury had already been selected and impaneled, where the defendant’s alibi defense and supporting witnesses were applicable for both dates. Doby v. State, 532 So. 2d 584, 1988 Miss. LEXIS 500 (Miss. 1988).

In a prosecution for aggravated assault upon a police officer, the trial court properly allowed the amendment of the indictment which contained an incorrect date of the crime where there was no proof of surprise or prejudice to the defendant as a result of the discrepancy. Norman v. State, 385 So. 2d 1298, 1980 Miss. LEXIS 2008 (Miss. 1980).

Where 2 dates appear in an affidavit or an indictment, one of which is impossible and apparently a clerical error, the indictment is not invalid but may be amended. Torrence v. State, 283 So. 2d 595, 1973 Miss. LEXIS 1232 (Miss. 1973).

Where an indictment, charging a father with neglect to provide for the support and maintenance of his children failed to state the year in which the offense was committed, and where a demurrer was interposed, it was not error for the court to permit an amendment so as to state the year and overrule the demurrer. Archer v. State, 214 Miss. 742, 59 So. 2d 339, 1952 Miss. LEXIS 515 (Miss. 1952).

4. Venue.

Indictment’s failure to charge venue was a facially apparent defect that petitioner waived by not objecting before trial. The indictment’s apparent venue defect did not void petitioner’s guilty plea because sufficient evidence established that the crime occurred in Lafayette County. Pegues v. State, 65 So.3d 351, 2011 Miss. App. LEXIS 364 (Miss. Ct. App. 2011).

Defendant attempted to draw a distinction between an indictment that completely omitted any reference to venue and one that had an improper or imperfect statement of the venue of the crime as set out in Miss. Code Ann. §99-7-5; an omission of any reference to venue was encompassed within the meaning of the phrase “imperfect statement” found in the applicable statute. Garner v. State, 856 So. 2d 729, 2003 Miss. App. LEXIS 936 (Miss. Ct. App. 2003).

An indictment must give defendant notice of the place where the offense is alleged to have been committed by properly charging venue. Evans v. State, 144 Miss. 1, 108 So. 725, 1926 Miss. LEXIS 334 (Miss. 1926).

An indictment for grand larceny in a county composed of two judicial districts, which simply stated the crime was committed in the county without designating the district does not charge venue of the crime as required by constitution. Evans v. State, 144 Miss. 1, 108 So. 725, 1926 Miss. LEXIS 334 (Miss. 1926).

But under this section [Code 1942, § 2451] an indictment may be amended by order of the court so as to charge venue properly. Evans v. State, 144 Miss. 1, 108 So. 725, 1926 Miss. LEXIS 334 (Miss. 1926).

The affidavit should state venue. Jones v. State, 133 Miss. 801, 98 So. 342, 1923 Miss. LEXIS 193 (Miss. 1923).

An instance where the venue is imperfectly stated. Smith v. Corporation of Oxford, 91 Miss. 651, 45 So. 365, 1907 Miss. LEXIS 176 (Miss. 1907).

RESEARCH REFERENCES

Am. Jur.

41 Am. Jur. 2d, Indictments and Informations §§ 128 et seq., 139 et seq.

CJS.

42 C.J.S., Indictments and Informations §§ 167-172.

Cross References —

Form of the indictment, see Miss. Unif. Cir. & Ct. Prac. R. 7.06.

JUDICIAL DECISIONS

1. In general.

When the false pretense charged in an indictment is in writing, the writing need not be set out in specific words, but it is sufficient to set out the purport thereof, unless some question turns on the form or construction of the instrument or some other legal description is given in the indictments, the accuracy of which may be material for the court to determine. Prisock v. State, 244 Miss. 408, 141 So. 2d 711, 1962 Miss. LEXIS 463 (Miss. 1962).

In an indictment charging the accused with the crime of attempting to commit false pretenses or cheats by organizing a group of people who attempted to defraud insurance companies by staging a fake or false wreck with automobiles, a statement that certain named individuals involved in the scheme bought insurance contracts to indemnify themselves from loss occasioned by personal injuries received in automobile accidents, and that another person, also involved, had bought an insurance contract of indemnity for loss occasioned by acts of negligence committed by him in the operation of the automobiles, sufficiently described the insurance policies by designation and type and thereby indicated their purport within the meaning of this section [Code 1942, § 2453]. Prisock v. State, 244 Miss. 408, 141 So. 2d 711, 1962 Miss. LEXIS 463 (Miss. 1962).

This section [Code 1942, § 2453] does not dispense with such certainty of description as will clearly identify the offense. An example furnished of insufficient averment. Roberts v. State, 72 Miss. 110, 16 So. 233, 1894 Miss. LEXIS 69 (Miss. 1894).

RESEARCH REFERENCES

Am. Jur.

41 Am. Jur. 2d, Indictments and Informations §§ 112 et seq.

CJS.

42 C.J.S., Indictments and Informations §§ 191-195.

Lawyers’ Edition.

State regulation of judicial proceedings as violating commerce clause (Art I, § 8, cl 3) of Federal Constitution – Supreme Court cases. 100 L. Ed. 2d 1049.

Amendment Notes —

The 2008 amendment added the last paragraph.

Cross References —

Severance of joint indictments, see §§99-15-47,99-15-49.

Inapplicability of Mississippi Rules of Evidence to proceedings before grand juries, see Miss. R. Evid. Rule 1101.

Grand jury’s power to accuse a person by name of an offense in absence of an indictment, see Miss. Unif. Cir. & County Ct. Prac. R. 7.03.

Docket management, see Miss. Unif. Cir. & County Ct. Prac. R. 9.02.

JUDICIAL DECISIONS

1. In general.

2. Correction of clerical error.

3. Indorsement or signing of indictment.

4. Filing of indictment.

5. Service on defendant.

6. Affidavit of foreman.

7. Waiver of defects.

1. In general.

Defendant offered no evidence to show unfair surprise or that the amendment to the indictment prejudiced his ability to defend the case; defendant did not contest or dispute the prior charges against him. Wynn v. State, 964 So. 2d 1196, 2007 Miss. App. LEXIS 592 (Miss. Ct. App. 2007).

In a prosecution for burglary, the trial court did not err in overruling defendants’ demurrer to the complaint for failure to attach a sworn and subscribed affidavit thereto, as required by this section. Usry v. State, 378 So. 2d 635, 1979 Miss. LEXIS 2540 (Miss. 1979).

The purpose and intent of the legislature in amending this section was to do away with the necessity of having at least 12 members of the grand jury, including the foreman, physically present when each and every indictment was returned to the court by providing an easier method, i.e., affidavits, by which the results of deliberations could be made known to the court. Thus, in a prosecution for selling marijuana, the trial court correctly overruled a demurrer to the indictment, even though the indictment was not accompanied by the foreman’s affidavit, where the entire grand jury was before the court and filed the indictment, thus showing full compliance with the old, more laborious method of presenting indictments, and where there was no proof whatsoever of prejudice to defendant. McCormick v. State, 377 So. 2d 1070, 1979 Miss. LEXIS 2551 (Miss. 1979).

A motion to quash an indictment could not be granted on the ground that only hearsay evidence was presented to the grand jury, since the court will not go beyond an indictment and inquire into evidence considered by the grand jury to determine whether the evidence was in whole or in part hearsay. Case v. State, 220 So. 2d 289, 1969 Miss. LEXIS 1447 (Miss. 1969).

Where an indictment was lost and the accused made no objection to going to trial on a mere purported copy of the original indictment without the same being certified to, the omission of the clerk to certify the copy was an amendable defect which was waived by the failure of the accused to object. Grimsley v. State, 215 Miss. 43, 60 So. 2d 509, 1952 Miss. LEXIS 535 (Miss. 1952).

Burden is upon accused, moving to quash indictment duly signed, presented and filed, to prove twelve grand jurors did not concur, and that district attorney was in grand jury room; affidavits are not sufficient. Temple v. State, 165 Miss. 798, 145 So. 749, 1933 Miss. LEXIS 276 (Miss. 1933).

2. Correction of clerical error.

In a prosecution for armed robbery, the trial court properly overruled the defendant’s demurrer to the indictment where the defect in the indictment was the omission of the words “21” and “January” from the line beginning with the word “Filed”, which omission was later cured with the permission of the court and did not prejudice the defendant in any way. Smith v. State, 394 So. 2d 1340, 1981 Miss. LEXIS 1961 (Miss. 1981).

Order of court entered on minutes is unnecessary to authorize clerk to correct manifest error or omission in filing of indictment. Fairley v. State, 163 Miss. 682, 138 So. 330, 1931 Miss. LEXIS 5 (Miss. 1931).

Clerk, at same term at which indictment was returned, lawfully corrected manifest clerical error in date of filing indictment given as July 6, 1921, instead of 1931. Fairley v. State, 163 Miss. 682, 138 So. 330, 1931 Miss. LEXIS 5 (Miss. 1931).

3. Indorsement or signing of indictment.

Although defendant, who was convicted of statutory rape, asserted that his indictment lacked the grand-jury foreman’s signature and was not marked “filed,” with the entry signed and dated by the circuit-court clerk, the appellate court found that these alleged defects in the indictment were nonjurisdictional. Johnson v. State, 196 So.3d 1118, 2016 Miss. App. LEXIS 475 (Miss. Ct. App. 2016).

Trial court properly denied defendant’s motion for postconviction relief after defendant pled guilty in two cases to the sale of cocaine because the statutory requirements for presentation of an indictment were met; the indictments were complete with signatures by the grand jury foreman and the signature and date “filed and recorded” by the trial court clerk. Hunt v. State, 11 So.3d 764, 2009 Miss. App. LEXIS 322 (Miss. Ct. App. 2009).

Defendant’s indictment met the requirements of Miss. Unif. Cir. & County Ct. Prac. R. 7.06 where, under Miss. Code Ann. §99-7-9, the endorsement by the foreman, together with the marking, dating, and signing by the clerks shall be the legal evidence of the finding and presenting to the court of the indictment; defendant’s indictment was endorsed by the grand jury foreman; it was also marked “filed,” dated, and signed by the clerk of the circuit court, and as such, his indictment was free from jurisdictional defects. Watts v. State, 981 So. 2d 1034, 2008 Miss. App. LEXIS 272 (Miss. Ct. App. 2008).

Where appellant pleaded guilty to two counts of sexual battery, his lawyer was not deficient because he allowed appellant to plead guilty to a faulty indictment which allegedly did not meet the requirements of Miss. Code Ann. §99-7-9 and Miss. Unif. Cir. & County Ct. Prac. R. 7.06. The indictments charging defendant with committing sexual battery bore a signature of the grand jury foreman and each was stamped filed on October 20, 2005, by the circuit clerk; three unsigned and unfiled indictments in the case were not cause to grant appellant relief on his ineffective assistance of counsel claim. Kimble v. State, 983 So. 2d 1069, 2008 Miss. App. LEXIS 116 (Miss. Ct. App. 2008).

Defendant’s conviction and sentence for possession of more than one kilogram of marijuana with intent to distribute were both proper where the evidence met the totality of the circumstances test, including the drug dog’s alerting to the package; further, her argument that the indictment was invalid because the foreman failed to sign it was improper because she raised the argument for the first time on appeal. Arguelles v. State, 867 So. 2d 1036, 2003 Miss. App. LEXIS 1081 (Miss. Ct. App. 2003).

Allegations that indictments were defective because the record did not identify them as the indictments returned by the appropriate grand jury and because they were not accompanied by the affidavit of the grand jury foreman, involved nonjurisdictional defects which were waived when the defendant entered a voluntary guilty plea and failed to timely assert his claims in the lower court. Moreover, it was not clear that the defendant would have been entitled to relief even if the claims had been timely asserted because the indictments were signed by the foreman of the grand jury and marked “filed” by the county circuit clerk. Brooks v. State, 573 So. 2d 1350, 1990 Miss. LEXIS 776 (Miss. 1990).

In a prosecution for burglary, the trial court properly overruled defendant’s demurrer to the indictment, even though the indictment did not contain an affidavit that it was concurred in by 12 or more members of the grand jury and that 15 had been present during deliberations, where the indictment was presented to the court in accord with common law procedure, in that all members of the grand jury were present at the time of their report to the court, and where the indictment showed on its face that it was endorsed by the foreman, dated, signed and marked filed by the circuit clerk. Stewart v. State, 377 So. 2d 1067, 1979 Miss. LEXIS 2550 (Miss. 1979).

Defects in an indictment which was not marked “filed” and was not signed and dated by the circuit clerk, as required by this section, were procedural in nature and, unless raised by special demurrer, were waived and could not be raised for the first time on appeal. Jones v. State, 356 So. 2d 1182, 1978 Miss. LEXIS 2479 (Miss. 1978).

The names of the state’s witnesses need not be endorsed on an indictment for burglary. Kelly v. State, 239 Miss. 683, 124 So. 2d 840, 1960 Miss. LEXIS 341 (Miss. 1960).

An indorsement in back of an indictment of a person whom the record showed was duly appointed and sworn as foreman of the jury was sufficient compliance with the section [Code 1942, § 2441]. Moffett v. State, 223 Miss. 276, 78 So. 2d 142, 1955 Miss. LEXIS 378 (Miss. 1955).

Where an indictment was signed by the county attorney, it was not necessary for the district attorney to sign the indictment and it was sufficient for the indictment to be returned in court by the grand jury as provided by this section [Code 1942, § 2441]. Watson v. State, 212 Miss. 788, 55 So. 2d 441, 1951 Miss. LEXIS 513 (Miss. 1951).

Objection that foreman of grand jury did not indorse name on indictment could not be raised for first time on appeal. Pruitt v. State, 163 Miss. 47, 139 So. 861, 1932 Miss. LEXIS 16 (Miss. 1932).

The complaint that an indictment was not sufficiently identified because of absence of clerk’s filing indorsement could not be raised for first time on appeal. Wooten v. State, 155 Miss. 726, 125 So. 103, 1929 Miss. LEXIS 349 (Miss. 1929).

Claimed defect in indictment as not properly signed can only be reached on motion to quash and is not available for first time on appeal. Wilcher v. State, 152 Miss. 13, 118 So. 356, 1928 Miss. LEXIS 207 (Miss. 1928).

The foreman of the grand jury is not required to endorse his name on the dotted line on an indictment, but an endorsement at some other place will be sufficient. Dawsey v. State, 144 Miss. 452, 110 So. 239, 1926 Miss. LEXIS 397 (Miss. 1926).

4. Filing of indictment.

Although defendant’s indictment was defective in that the circuit clerk had failed to stamp the indictment “filed,” the error was procedural only and did not overcome the three-year time bar for filing for post-conviction relief. Cochran v. State, 969 So. 2d 119, 2007 Miss. App. LEXIS 476 (Miss. Ct. App. 2007).

Dating, signing, and filing of indictment by clerk need not be done in presence of grand jury. Fairley v. State, 163 Miss. 682, 138 So. 330, 1931 Miss. LEXIS 5 (Miss. 1931).

After conviction the accused cannot for the first time make the point that the indictment was not filed until after the argument was begun. Washington v. State, 78 Miss. 189, 28 So. 850, 1900 Miss. LEXIS 107 (Miss. 1900).

The filing of an indictment, the dating of it and signing of the entry by the circuit clerk is the exclusive evidence of its finding and presentation by the grand jury to the court. Stanford v. State, 76 Miss. 257, 24 So. 536, 1898 Miss. LEXIS 94 (Miss. 1898).

An indictment not so “filed” is invalid, that is, a trial cannot be had on it. Williamson v. State, 64 Miss. 229, 1 So. 171, 1886 Miss. LEXIS 50 (Miss. 1886).

The indorsement of the word “filed” on the indictment and the date signed by the clerk is the evidence of the finding and return. Smith v. State, 58 Miss. 867, 1881 Miss. LEXIS 55 (Miss. 1881); Cooper v. State, 59 Miss. 267, 1881 Miss. LEXIS 116 (Miss. 1881); Holland v. State, 60 Miss. 939, 1883 Miss. LEXIS 41 (Miss. 1883); Lea v. State, 64 Miss. 294, 1 So. 244, 1886 Miss. LEXIS 59 (Miss. 1886).

5. Service on defendant.

Record did not support defendant’s assertions that he never received personal service of a copy of his indictment; his attorney received service of the indictment on defendant’s behalf, defendant admitted that the clerk sent him a copy of his indictment after he requested one, and his indictment was read to him in open court before entering his plea. Parks v. State, 228 So.3d 853, 2017 Miss. App. LEXIS 58 (Miss. Ct. App.), cert. denied, 220 So.3d 977, 2017 Miss. LEXIS 262 (Miss. 2017).

In defendant’s auto burglary case, the indictment was properly served because defendant was already in possession of a copy of the indictment at the time his counsel moved to dismiss for improper service, at the hearing the circuit court judge stated that he wanted the lack of proper service to be cured, and defendant was re-served with the second indictment by the assistant district attorney and in the presence of the trial judge and his defense counsel. Qualls v. State, 947 So. 2d 365, 2007 Miss. App. LEXIS 21 (Miss. Ct. App. 2007).

The delivery of a copy of an indictment to an accused in compliance with Code 1942 § 2441, is mandatory. Yarbrough v. Dowell Div. of Dow Chemical Co., 285 So. 2d 170, 1973 Miss. LEXIS 1281 (Miss. 1973).

Defendant waived the requirements of Code 1942 § 2441, by voluntarily waiving a reading of the indictment without having made an objection to having been arraigned prior to receiving a copy of the indictment, although such is not necessarily so in capital cases. Yarbrough v. Dowell Div. of Dow Chemical Co., 285 So. 2d 170, 1973 Miss. LEXIS 1281 (Miss. 1973).

Although this section [Code 1942, § 2441] is mandatory in its requirements, a conviction would not be reversed on the ground that the state failed to serve a copy of the indictment on the defendant as required by the section, where the matter was not raised in the trial court and the record did not affirmatively show that the indictment was not served on the defendant. Hall v. State, 220 So. 2d 279, 1969 Miss. LEXIS 1442 (Miss. 1969).

Where the matter was not raised in the trial court and the record does not show that a copy of the indictment was not served on the defendant, the presumption is that the provisions of this section [Code 1942, § 2441] in that respect had been complied with. Hall v. State, 220 So. 2d 279, 1969 Miss. LEXIS 1442 (Miss. 1969).

Where the record is silent as to whether a copy of the indictment was in fact presented to the defendant prior to his arraignment, the supreme court will indulge the presumption that the judge and officers of the court have done their duty in the absence of authoritative evidence to the contrary. Ford v. State, 218 So. 2d 731, 1969 Miss. LEXIS 1616 (Miss. 1969).

This section [Code 1942, § 2441] does not provide for any certain length of time between the serving of the copy of an indictment and the arraignment of the defendant, and in the absence of evidence that the defendant was prejudiced by the state’s failure to serve a copy upon him sooner, it was not error to refuse to grant a continuance on this basis. State v. Pearson, 185 So. 2d 677, 1966 Miss. LEXIS 1530 (Miss. 1966).

6. Affidavit of foreman.

An indictment is not rendered defective because it is not accompanied by an affidavit of the foreman of the grand jury; the legal evidence of the concurrence of 12 or more of the grand jurors in finding and presenting the indictment is fully established by the signing thereof on the part of the foreman and the marking of it as “filed” by the clerk of the court. Morris v. State, 767 So. 2d 255, 2000 Miss. App. LEXIS 275 (Miss. Ct. App. 2000), overruled in part, Edwards v. Booker, 796 So. 2d 991, 2001 Miss. LEXIS 185 (Miss. 2001).

This section in its present form only requires an affidavit attesting that all indictments then being returned meet the requirement that 15 members were present at the deliberations and that at least 12 concurred in the indictment, and does not require formal execution of the affidavit; thus, in a prosecution for armed robbery, the trial court did not err in overruling defendant’s demurrer to the indictment, even though the foreman of the grand jury had failed to complete the affidavit on the back of the indictment, where the trial court announced that the record was to show that all grand jurors were in the courtroom for the presentation of the indictment, and where no prejudice resulted from the failure to complete the affidavit. If the affidavit was omitted, such omission not appearing on the face of the indictment, the omission might be subject to a motion to quash pursuant to §99-7-23. Jackson v. State, 377 So. 2d 1060, 1979 Miss. LEXIS 2548 (Miss. 1979).

7. Waiver of defects.

Where appellant was convicted on a plea of guilty to selling methamphetamine, appellant failed to show the plea was invalid based on an invalid indictment, as appellant’s indictment was signed by the foreman of the grand jury, stamped “filed,” and marked, dated, and signed by the clerk; by entering a valid guilty plea, appellant waived all non-jurisdictional defects in the indictment and failed to allege any prejudice resulted due to the alleged defects in the indictment. Carroll v. State, 963 So. 2d 44, 2007 Miss. App. LEXIS 532 (Miss. Ct. App. 2007).

RESEARCH REFERENCES

ALR.

Validity of jury selection as affected by accused’s absence from conducting of procedures for selection and impaneling of final jury panel for specific cases. 33 A.L.R.4th 429.

Am. Jur.

41 Am. Jur. 2d, Indictments and Informations §§ 25 et seq., 65, 76 et seq.

CJS.

42 C.J.S., Indictments and Informations §§ 22 et seq., 87.

Law Reviews.

1979 Mississippi Supreme Court Review: Criminal Law and Procedure. 50 Miss. L. J. 763, December 1979.

Cross References —

Constitutional provision on indictable offenses, see Miss. Const. Art. 3, § 27.

Charge to grand jury, see §13-5-47.

Grand jury convening in vacation, see Miss. Unif. Cir. & County Ct. Prac. R. 7.02.

JUDICIAL DECISIONS

1. In general.

Presentment of indictment in court by grand jury foreman in other grand jurors’ presence implies concurrence of requisite number thereof. Temple v. State, 165 Miss. 798, 145 So. 749, 1933 Miss. LEXIS 276 (Miss. 1933).

Burden was on accused, moving to quash indictment duly signed, presented and filed, to prove that twelve grand jurors did not concur, and that district attorney was in grand jury room when indictment was found; affidavits as to such facts being insufficient. Temple v. State, 165 Miss. 798, 145 So. 749, 1933 Miss. LEXIS 276 (Miss. 1933).

The fact that the foreman of a grand jury was excused from voting where as many as twelve of the grand jurors concurred in finding the indictment did not invalidate the indictment. State v. Coulter, 104 Miss. 764, 61 So. 706, 1913 Miss. LEXIS 84 (Miss. 1913).

RESEARCH REFERENCES

ALR.

Necessity of alleging in indictment or information limitation-tolling facts. 52 A.L.R.3d 922.

Cross References —

Circuit court criminal docket, see §9-7-175.

Penalty for disclosing facts about indictment, see §97-9-53.

Secrecy of grand jury proceedings, see Miss. Unif. Cir. & County Ct. Prac. R. 7.04.

JUDICIAL DECISIONS

1. In general.

This section [Code 1942, § 2442] is constitutional. A defendant can be tried upon the certified copy of the secret record. McGuire v. State, 76 Miss. 504, 25 So. 495, 1898 Miss. LEXIS 148 (Miss. 1898).

RESEARCH REFERENCES

Am. Jur.

41 Am. Jur. 2d, Indictments and Informations §§ 61 et seq.

CJS.

42 C.J.S., Indictments and Informations § 57.

Cross References —

Secrecy of grand jury proceedings, see Miss. Unif. Cir. & County Ct. Prac. R. 7.04.

OPINIONS OF THE ATTORNEY GENERAL

A sheriff is authorized to obtain information concerning which indictments have been returned with a true bill or no bill, and this information may be acquired from the district attorney or through a personal inspection of the indictments. Ferrell, July 3, 1997, A.G. Op. #97-0379.

Narcotics task force agents who are contract agents with the Mississippi Bureau of Narcotics have the power to execute a capias warrant issued pursuant to a grand jury indictment if such warrant is directed to such agents after it has been issued. Bowen, July 11, 1997, A.G. Op. #97-0408.

A district attorney (as a “person in charge of a law enforcement agency”) or a circuit court clerk (as an officer of the court) may comply with Section 45-27-9 by providing to the Mississippi Justice Information Center the information on a capias that either cannot or has not been served within a reasonable time period; if for some reason the sheriff cannot serve the capias on the defendant and returns the capias unserved, the information on the capias may be provided to the Mississippi Justice Information Center without violation of Section 97-9-53 or 99-7-15. Kitchens, Jr., April 17, 2000, A.G. Op. #2000-0192.

Cross References —

Dilatory pleas; amendment of indictment or information, see §99-7-19.

Cross References —

Dilatory pleas must be verified by oath, see §99-7-17.

Amendment of indictment where person whose name is unknown is afterward found to be known, see §99-7-25.

Amendments in criminal case when variance is found between matter stated in indictment and proof, see §99-17-13.

Amendments to proceedings brought up from justice of the peace or municipal courts, see §99-35-11.

JUDICIAL DECISIONS

1. In general.

Where the appellant failed to plead that his surname was not shown in the indictment before pleading not guilty, he waived his right to claim that he was not the person named in the indictment, and the trial court was not required to amend the indictment on its own motion. Anselmo v. State, 312 So. 2d 712, 1975 Miss. LEXIS 1656 (Miss. 1975).

In a prosecution for rape, the omission of the Christian name of the accused constituted a formal defect in the indictment but the omission was not fatal and the court properly permitted amendment by inserting defendant’s Christian name. Gillespie v. State, 215 Miss. 380, 61 So. 2d 150, 1952 Miss. LEXIS 577 (Miss. 1952).

Indictment for forgery is defective but amendable when it fails to allege the names of the individual persons composing the partnership defrauded by the forged instrument. Wilson v. State, 204 Miss. 111, 37 So. 2d 19, 1948 Miss. LEXIS 348 (Miss. 1948).

RESEARCH REFERENCES

ALR.

Sufficiency of indictment, information, or other forms of criminal complaint, omitting or misstating middle name or initial of person named therein. 15 A.L.R.3d 968.

Am. Jur.

41 Am. Jur. 2d, Indictments and Informations §§ 160 et seq.

CJS.

42 C.J.S., Indictments and Informations §§ 302 et seq.

Cross References —

Amendments in criminal case when variance is found between matter stated in indictment and proof, see §99-17-13.

Amendments to proceedings brought up from justice of the peace or municipal courts, see §99-35-11.

JUDICIAL DECISIONS

1. In general.

2. Amendment.

3. Loss of remedy by failure to demur.

4. Matters subject to attack at any time.

1. In general.

Although defendant, who was convicted of statutory rape, asserted that his indictment lacked the grand-jury foreman’s signature and was not marked “filed,” with the entry signed and dated by the circuit-court clerk, the appellate court found that these alleged defects in the indictment were nonjurisdictional. Johnson v. State, 196 So.3d 1118, 2016 Miss. App. LEXIS 475 (Miss. Ct. App. 2016).

Trial court did not err in allowing the trial to proceed with the amended indictment, which replaced “confidential informant” with the named co-defendant, because defendant could not have been “surprised” by the State’s attempt to prove defendant transferred cocaine to co-defendant, and defendant knew of the circumstances of his arrest and the possibility of the State needing to prove defendant transferred cocaine to co-defendant. Jones v. State, 912 So. 2d 973, 2005 Miss. LEXIS 704 (Miss. 2005), cert. denied, 547 U.S. 1043, 126 S. Ct. 1624, 164 L. Ed. 2d 339, 2006 U.S. LEXIS 2564 (U.S. 2006).

A trial court did not err in overruling a defendant’s motion to quash the indictment and/or demur to the indictment, even though the minutes of the court did not reflect that a grand jury foreman was appointed or that the foreman was given the oath as required by §13-5-45, where one of the names of the grand jurors was listed on the indictment as the grand jury foreman, the foreman signed the grand jury report and indictment in the slot where the foreman signs, and the foreman’s name was listed along with the other sworn grand jurors, since the statute does not provide that the court minutes must reflect that a grand jury foreman was appointed and sworn. Rogers v. State, 599 So. 2d 930, 1992 Miss. LEXIS 123 (Miss.), overruled in part, Mayfield v. State, 612 So. 2d 1120, 1992 Miss. LEXIS 861 (Miss. 1992).

An indictment charging defendant with aggravated assault, apparently in violation of §97-3-7(2), was substantially defective in that it did not set out any alleged overt act whatsoever regarding defendant’s alleged attempt to cause bodily harm to a patrolman, and, thus, his failure to file a demurrer under the provisions of §99-7-21 did not prevent him from challenging the indictment. Joshua v. State, 445 So. 2d 221, 1984 Miss. LEXIS 1582 (Miss. 1984), overruled, Brooks v. State, 18 So.3d 833, 2009 Miss. LEXIS 471 (Miss. 2009).

In a prosecution for attempted escape, the trial court erred in sentencing defendant, who was under a sentence of life imprisonment for a murder conviction, to a term of two years under §97-9-49, where the correct sentence for defendant under §97-9-45, which specifically covers persons convicted of escape from custody after being sentenced to the penitentiary for life, would be forfeiture of all earned time toward a parole. Carleton v. State, 438 So. 2d 278, 1983 Miss. LEXIS 2845 (Miss. 1983).

Where five members of the coroner’s jury and one arresting officer, who had heard accused voluntarily testify before the coroner’s jury, appeared before the grand jury which indicted the accused and testified, accused’s objection to the indictment should have been taken by a motion to quash before the issuance of the venire facias. Dykes v. State, 232 Miss. 379, 99 So. 2d 602, 1957 Miss. LEXIS 484 (Miss. 1957).

Assuming that an indictment charging the defendant with an assault with a deadly weapon “with the intent and in the attempt to kill and murder” a named person, charged two offenses, one under § 787, Code of 1930, and the other under § 793 of the code, as contended by defendant, the defendant should have demurred, as the objection appeared on the face of the indictment, and such objection can only be made on demurrer where an offense is charged. Norwood v. State, 182 Miss. 898, 183 So. 523, 1938 Miss. LEXIS 205 (Miss. 1938).

Under statute, a motion to withdraw a plea of not guilty and for permission to file a demurrer to an indictment after a jury had been impaneled and both sides were ready to offer evidence was properly overruled as not timely. Bryant v. State, 179 Miss. 739, 176 So. 590, 1937 Miss. LEXIS 67 (Miss. 1937).

Where affidavit charging offense is defective on its face, demurrer is necessary to reach defect, and if defect is dehors record, motion to quash and evidence to support motion is necessary to reach defect. Wampold v. State, 170 Miss. 732, 155 So. 350, 1934 Miss. LEXIS 170 (Miss. 1934).

Statutory provisions relating to demurrers to and motions to quash indictments held applicable to affidavits charging crime. Sullivan v. State, 150 Miss. 542, 117 So. 374, 1928 Miss. LEXIS 184 (Miss. 1928); Wampold v. State, 170 Miss. 732, 155 So. 350, 1934 Miss. LEXIS 170 (Miss. 1934).

The facts alleged by a plea in bar are admitted on demurrer only for the purpose of testing the legal question raised. State v. Mitchell, 95 Miss. 130, 48 So. 963, 1909 Miss. LEXIS 251 (Miss. 1909).

Charging two offenses in the same count is bad practice but can be objected to only by demurrer under this section [Code 1942, § 2449]. Clue v. State, 78 Miss. 661, 29 So. 516, 1900 Miss. LEXIS 165 (Miss. 1900).

Objections to an indictment for defects apparent on its face must be made by demurrer only. Gates v. State, 71 Miss. 874, 16 So. 342, 1894 Miss. LEXIS 32 (Miss. 1894); Norton v. State, 72 Miss. 128, 16 So. 264, 1894 Miss. LEXIS 61 (Miss. 1894); McQueen v. State, 143 Miss. 787, 109 So. 799, 1926 Miss. LEXIS 322 (Miss. 1926); Wallace v. State, 182 Miss. 441, 181 So. 522, 1938 Miss. LEXIS 175 (Miss. 1938).

2. Amendment.

Even if defendant had timely objected to the indictment alleging the expiration of the statute of limitations for the first two years of the indictment’s time span, the circuit court’s solution would have been to amend the indictment to reflect a time period not in conflict with any alleged statute-of-limitations issues, which was essentially done when defense counsel requested and was granted jury instructions that limited the time span for the offenses to 15 months that were within the statute of limitations. Hines v. State, 126 So.3d 985, 2013 Miss. App. LEXIS 819 (Miss. Ct. App. 2013).

Because the amendment to defendant’s indictment did not alter his defense, it was proper; the amendment merely corrected the sentencing date of one of the underlying convictions contained in the habitual-offender portion of the indictment, and the original indictment put defendant on notice that the State planned to use his prior conviction to enhance his sentence. Peterson v. State, 37 So.3d 669, 2010 Miss. App. LEXIS 58 (Miss. Ct. App. 2010).

Defendant was not prejudiced by the last-minute amendment to the indictment accusing him of a drug sale when the change was merely a change of the date on which the transaction allegedly took place. Alexander v. State, 875 So. 2d 261, 2004 Miss. App. LEXIS 558 (Miss. Ct. App. 2004).

It was not error to permit the amendment of an indictment for murder to change the date of the offense from “on or about June 10, 1995” to “on or about June 7, 1995,” i.e. from the date of death of the victim to the date of the crime, since such amendment was one of form rather than substance. James v. State, 2000 Miss. App. LEXIS 164 (Miss. Ct. App. Apr. 11, 2000), op. withdrawn, sub. op., 777 So. 2d 682, 2000 Miss. App. LEXIS 457 (Miss. Ct. App. 2000).

Indictment may only be amended at trial if amendment is immaterial to merits of case and if defense will not be prejudiced by amendment; test for whether amendment to indictment will prejudice defense is whether defense, as it originally stood, would be equally available after amendment is made. Hughes v. State, 665 So. 2d 852, 1995 Miss. LEXIS 564 (Miss. 1995).

Amendment to indictment as to substance of charge must be made by grand jury. Hughes v. State, 665 So. 2d 852, 1995 Miss. LEXIS 564 (Miss. 1995).

Amendment of indictment from sexual battery to attempted sexual battery during trial did not prejudice defendant; by virtue of attempt statute, defendant had notice that he could be convicted of attempt charge. Hughes v. State, 665 So. 2d 852, 1995 Miss. LEXIS 564 (Miss. 1995).

A trial court committed reversible error in allowing an indictment to be amended to charge the defendant with a violation of §97-3-95(2) for sexual battery of a female “over” the age of 14 years, instead of §97-3-95(1) for sexual battery of a female “under the age of 14 years, since the defendant’s defense that the victim was not under 14 years of age but was 26 years old would have required the jury to return a verdict of acquittal; the amendment was “of substance” and was therefore beyond the power of the trial court to authorize. Rhymes v. State, 638 So. 2d 1270, 1994 Miss. LEXIS 321 (Miss. 1994).

A trial court did not err in allowing the State to amend an indictment charging the defendant with touching a child for a lustful purpose under §97-5-23 by changing the dates on which the offenses occurred since the change was one of mere form rather than substance. Baine v. State, 604 So. 2d 258, 1992 Miss. LEXIS 350 (Miss. 1992).

A second indictment against a defendant, which added that the defendant was charged as a habitual offender, was not an improper amendment without the required action of the grand jury, since the second indictment was not an amendment of the original amendment on motion by the State, but was a second indictment returned by a grand jury. Wilson v. State, 574 So. 2d 1324, 1990 Miss. LEXIS 845 (Miss. 1990).

In a prosecution for aggravated assault under §97-3-7, the defendant’s conviction would be reversed where the grand jury returned the indictment under §97-3-7(2)(b), which requires purposeful, willful and knowing actions, on the morning of the trial the State moved to amend the indictment to allow the jury to convict under §97-3-7(2)(a), which requires only that the defendant recklessly cause serious bodily injury under circumstances manifesting extreme indifference to the value of human life, and, though there was no order allowing the amendment, the jury instructions clearly reflected the new element which was not contained in the original indictment and it was apparently that part of the instruction upon which the jury returned its verdict. The proposed amendment was a change of substance, rather than form, and therefore the court had no power to amend the indictment without the concurrence of the grand jury. Quick v. State, 569 So. 2d 1197, 1990 Miss. LEXIS 662 (Miss. 1990).

An amendment of an indictment which charged the defendant as a habitual offender under §99-19-81 rather than §99-19-83, which imposes a greater sentence than does §99-19-81, was an amendment of form rather than substance and was, therefore, permissible since the amendment affected only the sentence and not the underlying offenses for which the defendant was tried. Nathan v. State, 552 So. 2d 99, 1989 Miss. LEXIS 470 (Miss. 1989).

A court committed reversible error in permitting the State to amend an indictment charging aggravated assault at the close of the State’s case, at a time when the defendant had indicated his desire to file a motion for a directed verdict, from the charge “by shooting the [victim] in the head” to that of “a pistol, a means likely to produce serious bodily harm.” Had the court not permitted the amendment of the indictment, the defendant would have been entitled to a directed verdict of not guilty on the aggravated assault charge of shooting the victim in the head with the pistol since the evidence was uncontradicted that the gun accidentally fired and that the victim was not wounded by the firing of the weapon. Griffin v. State, 540 So. 2d 17, 1989 Miss. LEXIS 144 (Miss. 1989).

It was not error for trial judge to not allow defendant to amend indictment to charge him with simple assault rather than gratification of lust, because indictment may only be amended for matters of form and not of substance, and trial court cannot amend indictment to change charge therein to another crime, except by action of grand jury which returned indictment; where defendant actually desired submission of lesser charge for deliberation by jury, which trial court did, amendment would be merely idle gesture. Shive v. State, 507 So. 2d 898, 1987 Miss. LEXIS 2548 (Miss. 1987).

As in Mississippi, indictments can be amended in federal courts for matters of form but not substance, and the standards for judging the sufficiency of an indictment are essentially the same in both jurisdictions. Copeland v. State, 423 So. 2d 1333, 1982 Miss. LEXIS 2401 (Miss. 1982).

In a prosecution for armed robbery, the trial court did not err in allowing the state to amend the indictment to change the amount from $5,000 to $1,700. This amendment was of form and not of substance, and was properly allowed under this section and Code 1972 §99-17-13. Sanders v. State, 313 So. 2d 398, 1975 Miss. LEXIS 1673 (Miss. 1975).

Where 2 dates appear in an affidavit or an indictment, one of which is impossible and apparently a clerical error, the indictment is not invalid but may be amended. Torrence v. State, 283 So. 2d 595, 1973 Miss. LEXIS 1232 (Miss. 1973).

An indictment charging arson in the disjunctive by use of the word “or” may properly be amended to charge the offense in the conjunctive by substituting the word “and” for the word “or”. Byrd v. State, 228 So. 2d 874, 1969 Miss. LEXIS 1408 (Miss. 1969).

Affidavit on which criminal prosecution is based, not demurred to for defect appearing on the face, will be treated as sufficient; defect on face of affidavit, on which person is prosecuted in justice court, may be amended in circuit court on appeal; affidavit on which prosecution for failing to turn motor truck to right of center of highway on meeting another was based, not demurred to, held sufficient. Sullivan v. State, 150 Miss. 542, 117 So. 374, 1928 Miss. LEXIS 184 (Miss. 1928).

An instance where the word “liquors” may be inserted into an indictment charging the sale of “spirituous and intoxicating” by way of amendment. Keys v. State, 110 Miss. 433, 70 So. 457, 1915 Miss. LEXIS 50 (Miss. 1915).

3. Loss of remedy by failure to demur.

Defendant neither alleged jurisdictional defect in the indictment, nor did she identify any actual prejudice she suffered as a result of any non-jurisdictional defect, so her claim could not be raised for the first time in her appeal. Brown v. State, 37 So.3d 1205, 2009 Miss. App. LEXIS 945 (Miss. Ct. App. 2009), cert. denied, 39 So.3d 5, 2010 Miss. LEXIS 329 (Miss. 2010), cert. denied, 562 U.S. 1015, 131 S. Ct. 533, 178 L. Ed. 2d 392, 2010 U.S. LEXIS 8510 (U.S. 2010).

Defendant waived any claim that the indictment was defective because it did not name the confidential informant as the purchaser, and the issue was not raised in the trial court by way of a demurrer as required by Miss. Code Ann. §99-7-21. Griffin v. State, 918 So. 2d 882, 2006 Miss. App. LEXIS 12 (Miss. Ct. App. 2006).

Defendant first argued that the indictment issued against him was defective, as the indictment misspelled his last name. However, the issue was not properly before the appellate court, as there was no substantive error in the indictment and because defendant did not object to the indictment at the trial level; thus, the issue was waived on appeal. Forkner v. State, 902 So. 2d 615, 2004 Miss. App. LEXIS 1105 (Miss. Ct. App. 2004), cert. denied, 901 So. 2d 1273, 2005 Miss. LEXIS 345 (Miss. 2005).

Motion to quash capital murder indictment, made before issuance of venire facias and renewed following impanelment of jury, was timely, where defendant did not press court to rule on initial motion in reliance upon state’s assurance that burglary count was predicated on underlying assault and state subsequently informed defendant five days before trial that it might prosecute other felonies not named in indictment as basis for burglary charge. State v. Berryhill, 703 So. 2d 250, 1997 Miss. LEXIS 532 (Miss. 1997).

An indictment’s formal defect in failing to conclude with the words, “against the peace and dignity of the State of Mississippi,” is curable by amendment; thus, such a defect is subject to waiver for the failure to demur to the indictment in accordance with §99-7-21. Brandau v. State, 662 So. 2d 1051, 1995 Miss. LEXIS 301 (Miss. 1995).

In a prosecution for possession of a deadly weapon by a defendant previously convicted of a felony, failure to charge in the indictment that the weapon had been “concealed in whole or in part” as provided in §97-37-1 did not entitle defendant to a directed verdict and a peremptory instruction of not guilty where the defense never objected to the defective indictment by means of a demurrer as required by this section, where the defendant was fully informed of the charges against him by the inclusion in the indictment of §97-37-5 in conjunction with §97-37-1, and where there was no statute making it a crime to carry a deadly weapon unless it was concealed in whole or in part. Jones v. State, 383 So. 2d 498, 1980 Miss. LEXIS 1983 (Miss. 1980).

In a prosecution for unlawful possession of a controlled substance described as preludin, the omission of a recital in the indictment that preludin contained phenmetrazine was an omission of substance, so that the trial court was without power under Code 1972 §99-7-21 to allow the state to amend the indictment to correct the omission, notwithstanding defendant’s failure to demur or otherwise challenge the sufficiency of the indictment; in order to make out a prima facie case under the indictment, it was necessary for the state to prove extrinsic facts showing that preludin contained phenmetrazine, a controlled substance under Code 1972 §41-29-115, since preludin itself is not designated as a controlled substance. Anthony v. State, 349 So. 2d 1066, 1977 Miss. LEXIS 2203 (Miss. 1977).

Where a county had been divided into two judicial districts for purpose of holding circuit and chancery courts, with each district to stand exactly as if it were a separate county, failure of the indictment to allege from which district the grand jurors were selected or in which district the crime was committed was a formal defect and could be amended; being amendable, the defect could not be raised for the first time in the Supreme Court. Bolen v. State, 309 So. 2d 524, 1975 Miss. LEXIS 1882 (Miss. 1975).

Where, prior to the empaneling of a jury, the defendant failed to interpose a demurrer to an indictment charging a violation of the tax provisions of the Local Option Alcoholic Beverage Control Law but which failed to charge that the defendant “engaged or continued” in the business of selling intoxicating liquor without paying the required tax, objection to the sufficiency of the indictment cannot be raised for the first time on appeal. Northcutt v. State, 206 So. 2d 824, 1967 Miss. LEXIS 1245 (Miss. 1967).

An indictment for burglary which stated in the body thereof that the grand jurors were taken from Sunflower County where in fact they were taken from Humphreys County was defective as to form but did not prejudice the defendant nor violate any of his constitutional rights and the defendant could not raise an objection for the first time after his conviction. Temple v. State, 221 Miss. 569, 73 So. 2d 174, 1954 Miss. LEXIS 564 (Miss. 1954).

In prosecution for murder, a motion to quash an indictment was too late where it was made five days after issuance of venire facias and after the selection of jury, where the defendant had a week after the return of indictment and before the issuance of venire facias in which to file a motion to quash. Forman v. State, 220 Miss. 276, 70 So. 2d 848, 1954 Miss. LEXIS 436 (Miss. 1954).

Where an affidavit charged the defendant did wilfully and unlawfully sell one-half pint of liquor and it was amended to charge defendant with unlawful sale of intoxicating liquor, the affidavit sufficiently indicated the offense intended to be charged and the defect was on the face of it, it was amendable and the failure to demur to it constituted a waiver of defect. Perciful v. Holley, 217 Miss. 203, 63 So. 2d 817, 1953 Miss. LEXIS 423 (Miss. 1953).

In a prosecution for contributing to the delinquency of a minor, where the affidavit was amended to add public drunkenness as an additional act and the record did not disclose any evidence as to surprise and there was no motion by defendant for continuance nor process for additional witnesses, the defendant could not now complain of the amendment. Hall v. State, 211 Miss. 90, 50 So. 2d 924, 1951 Miss. LEXIS 334 (Miss. 1951).

An original affidavit upon which prosecution for contributing to delinquency of a minor was based must be considered as sufficient where no demurrer was filed. Hall v. State, 211 Miss. 90, 50 So. 2d 924, 1951 Miss. LEXIS 334 (Miss. 1951).

If the insufficiency of an indictment was due to a defect which could have been remedied by the trial court, by an amendment, the point is waived by the accused if he fails to interpose a demurrer. Crosby v. State, 191 Miss. 173, 2 So. 2d 813, 1941 Miss. LEXIS 155 (Miss. 1941).

An indictment charging the crime of assault and battery on a named person with intent to kill and murder was not void for failing to charge that such person was a human being, since at most, it was only defective, and if a defect it should have been availed of by demurrer to the indictment prior to the impanelling of the jury and could not be raised first on appeal. Rowland v. State, 182 Miss. 886, 183 So. 527, 1938 Miss. LEXIS 208 (Miss. 1938).

Defendant not demurring to robbery indictment for omission of word “by” before “means” cannot complain of such amendable defect after verdict. Williamson v. State, 167 Miss. 783, 149 So. 795, 1933 Miss. LEXIS 130 (Miss. 1933).

The defects in an indictment which can be cured by amendment must be raised by demurrer, and it is too late after verdict to raise the question for the first time. Moran v. State, 137 Miss. 435, 102 So. 388, 1925 Miss. LEXIS 3 (Miss. 1925).

An indictment of a woman for infanticide describing the persons killed as “two certain human beings, the same being her (the defendant’s) children,” is good after verdict because of the provisions of Code 1892, §§ 1341, 1354, 1435 [Code 1942, §§ 2436, 2449, 2532]. Wilkinson v. State, 77 Miss. 705, 27 So. 639, 1900 Miss. LEXIS 24 (Miss. 1900).

4. Matters subject to attack at any time.

A substantive defect in an indictment cannot be cured by extrinsic proof and is not waived by the failure to demur thereto. Copeland v. State, 423 So. 2d 1333, 1982 Miss. LEXIS 2401 (Miss. 1982).

Lack of specificity in indictment as to accused having “been previously convicted of a felony” was not a formal defect correctable by amendment under §99-7-21, and by failing to demur, accused did not waive the defect. Morgan v. United States Fidelity & Guaranty Co., 291 So. 2d 741, 1974 Miss. LEXIS 1749 (Miss. 1974).

Where an indictment failed to charge an essential element of the crime sought to be charged, the point was not waivable by the accused and might be raised for the first time on appeal. Burchfield v. State, 277 So. 2d 623, 1973 Miss. LEXIS 1421 (Miss. 1973), but see Monk v. State, 532 So. 2d 592, 1988 Miss. LEXIS 501 (Miss. 1988).

An indictment for embezzlement that does not set out the name of the owner of the property embezzled is fatally defective, and the defect was not waived by the defendant’s failure to demur. Meyer(S) v. State, 193 So. 2d 728, 1967 Miss. LEXIS 1563 (Miss. 1967).

This section [Code 1942, § 2449] does not preclude an appellant from raising the insufficiency of an indictment to charge an offense on appeal, notwithstanding that the accused failed to demur to the same in trial court. Cohran v. State, 219 Miss. 767, 70 So. 2d 46, 1954 Miss. LEXIS 384 (Miss. 1954).

An allegation as to the ownership of the building said to have been burglarized being an essential element of an indictment for burglary, failure of an indictment for burglary to contain such allegation was fatally defective, and could not be remedied by amendment. Crosby v. State, 191 Miss. 173, 2 So. 2d 813, 1941 Miss. LEXIS 155 (Miss. 1941).

Failure of an indictment for burglary to contain the required allegation as to the ownership of the property claimed to have been burglarized is not a variance, and so does not render applicable a statutory provision permitting an amendment to an indictment in the discretion of the court, whenever, on the trial of the indictment, there shall appear to be any variance between the statement in the indictment and the evidence offered in proof thereof. Crosby v. State, 191 Miss. 173, 2 So. 2d 813, 1941 Miss. LEXIS 155 (Miss. 1941).

An indictment for obtaining money on checks fraudulently must allege intent to defraud and this fatal error is not waived by failure to demur thereto. Herron v. State, 118 Miss. 420, 79 So. 289, 1918 Miss. LEXIS 91 (Miss. 1918).

An omission in an indictment for a felony going to the very essence of the offense renders it void and subject to attack at any time notwithstanding this section [Code 1942, § 2449]. Cook v. State, 72 Miss. 517, 17 So. 228, 1895 Miss. LEXIS 4 (Miss. 1895); Taylor v. State, 74 Miss. 544, 21 So. 129, 1896 Miss. LEXIS 150 (Miss. 1896).

RESEARCH REFERENCES

ALR.

Power of court to make or permit amendment of indictment with respect to allegations as to time. 14 A.L.R.3d 1297.

Power of court to make or permit amendment of indictment with respect to allegations as to place. 14 A.L.R.3d 1335.

Power of court to make or permit amendment of indictment with respect to allegations as to name, status, or description of persons or organizations. 14 A.L.R.3d 1358.

Power of court to make or permit amendment of indictment with respect to allegations as to property, objects, or instruments, other than money. 15 A.L.R.3d 1357.

Power of court to make or permit amendment of indictment with respect to allegations as to money. 16 A.L.R.3d 1076.

Power of court to make or permit amendment of indictment with respect to allegations as to criminal intent or scienter. 16 A.L.R.3d 1093.

Power of court to make or permit amendment of indictment. 17 A.L.R.3d 1181.

Power of court to make or permit amendment of indictment with respect to allegations as to prior convictions. 17 A.L.R.3d 1265.

Power of court to make or permit amendment of indictment with respect to allegations as to nature of activity, happening, or circumstances. 17 A.L.R.3d 1285.

Am. Jur.

41 Am. Jur. 2d, Indictments and Informations §§ 160 et seq., 282 et seq.

8 Am. Jur. Pl & Pr Forms (Rev), Indictments and Informations, Form 71, (demurrer).

CJS.

42 C.J.S., Indictments and Informations §§ 293 et seq., 302 et seq.

Cross References —

Amendments in criminal case when variance is found between matter stated in indictment and proof, see §99-17-13.

Amendments to proceedings brought up from justice of the peace or municipal court, see §99-35-11.

JUDICIAL DECISIONS

1. In general.

2. Timeliness.

3. Appropriateness.

1. In general.

Defendant’s challenge to her indictment was procedurally barred because defendant failed to raise the issue in the circuit court; the indictment clearly alleged both of the essential elements of the aggravated driving while under the influence statute, and thus, the alleged defect was not “jurisdictional” in nature. Dartez v. State, 271 So.3d 733, 2018 Miss. App. LEXIS 636 (Miss. Ct. App. 2018).

The function of a motion to quash is to test the legality of an indictment for some defect not appearing on the face of the indictment, and neither a motion to quash nor any other pretrial pleading can be employed to test the sufficiency of the evidence to support the indictment. State v. Grady, 281 So. 2d 678, 1973 Miss. LEXIS 1499 (Miss. 1973).

Where defendant’s neighbor, a private person, not connected with the police and observed from his own premises marijuana growing on defendant’s adjoining land, and after conversation with an officer, he went back alone and at his own election, and plucked several of the plants which he later took to the police, and there was no participation by the police in any of these actions and nothing at all was done by them until after a search warrant had been issued, trial court did not err in denying a motion to suppress the evidence and quash the indictment on grounds that the neighbor committed a trespass upon defendant’s land in obtaining the marijuana plants. Wolf v. State, 281 So. 2d 445, 1973 Miss. LEXIS 1497 (Miss. 1973).

Grand jurors are incompetent to testify that return of an indictment was influenced by presence of circuit judge in grand jury room and by his participation in its deliberations, for purpose of impeaching the indictment on a motion to quash. Sanders v. State, 198 Miss. 587, 22 So. 2d 500, 1945 Miss. LEXIS 231 (Miss. 1945).

Where affidavit charging offense is defective on its face, demurrer is necessary to reach defect, and if defect is dehors record, motion to quash and evidence to support motion is necessary to reach defect. Wampold v. State, 170 Miss. 732, 155 So. 350, 1934 Miss. LEXIS 170 (Miss. 1934).

Statutory provisions relating to demurrers to and motions to quash indictments held applicable to affidavits charging crime. Wampold v. State, 170 Miss. 732, 155 So. 350, 1934 Miss. LEXIS 170 (Miss. 1934).

Objections dehors the face of an indictment are properly presented by motion to quash. State v. Coulter, 104 Miss. 764, 61 So. 706, 1913 Miss. LEXIS 84 (Miss. 1913); Chandler v. State, 143 Miss. 312, 108 So. 723, 1926 Miss. LEXIS 268 (Miss. 1926).

The absence of a formal order permitting the filing of a motion to quash is waived by failure to object. Hardy v. State, 96 Miss. 844, 51 So. 460, 1910 Miss. LEXIS 176 (Miss. 1910).

An indictment should not be quashed for failure to allege facts which may properly be shown under a plea of not guilty. State v. Mitchell, 95 Miss. 130, 48 So. 963, 1909 Miss. LEXIS 251 (Miss. 1909); Hays v. State, 96 Miss. 153, 50 So. 557, 1909 Miss. LEXIS 30 (Miss. 1909); Hardy v. State, 96 Miss. 844, 51 So. 460, 1910 Miss. LEXIS 176 (Miss. 1910).

Where a judgment quashing an indictment is reversed on appeal by the state, the case will be remanded and a new trial ordered on the same indictment. State v. McDowell, 72 Miss. 138, 17 So. 213, 1894 Miss. LEXIS 133 (Miss. 1894); State v. Jolly, 73 Miss. 42, 18 So. 541, 1895 Miss. LEXIS 78 (Miss. 1895); State v. Gillis, 75 Miss. 331, 24 So. 25, 1897 Miss. LEXIS 149 (Miss. 1897); State v. Bacon, 77 Miss. 366, 27 So. 563, 1899 Miss. LEXIS 78 (Miss. 1899).

2. Timeliness.

Motion to quash capital murder indictment, made before issuance of venire facias and renewed following impanelment of jury, was timely, where defendant did not press court to rule on initial motion in reliance upon state’s assurance that burglary count was predicated on underlying assault and state subsequently informed defendant five days before trial that it might prosecute other felonies not named in indictment as basis for burglary charge. State v. Berryhill, 703 So. 2d 250, 1997 Miss. LEXIS 532 (Miss. 1997).

Where five members of the coroner’s jury and one arresting officer, who had heard accused voluntarily testify before the coroner’s jury, appeared before the grand jury which indicted the accused and testified, accused’s objection to the indictment should have been taken by a motion to quash before the issuance of the venire facias. Dykes v. State, 232 Miss. 379, 99 So. 2d 602, 1957 Miss. LEXIS 484 (Miss. 1957).

The legislature in enacting this section [Code 1942, § 2450] had in mind that if a defendant expects to bring some action to an indictment, it should be done before the county is put to the large expense of summoning a special venire and incurring liability for mileage and fees to the prospective jurors thus brought to court. Forman v. State, 220 Miss. 276, 70 So. 2d 848, 1954 Miss. LEXIS 436 (Miss. 1954).

In prosecution for murder, a motion to quash an indictment was too late where it was made five days after issuance of venire facias and after the selection of jury, where the defendant had a week after the return of indictment and before the issuance of venire facias in which to file a motion to quash. Forman v. State, 220 Miss. 276, 70 So. 2d 848, 1954 Miss. LEXIS 436 (Miss. 1954).

Motion to quash affidavit charging offense, made at conclusion of state’s evidence and during introduction of defendant’s evidence, and which failed to name defect in affidavit, held properly overruled as being too general and as coming too late. Wampold v. State, 170 Miss. 732, 155 So. 350, 1934 Miss. LEXIS 170 (Miss. 1934).

3. Appropriateness.

A trial court did not err in overruling a defendant’s motion to quash the indictment and/or demur to the indictment, even though the minutes of the court did not reflect that a grand jury foreman was appointed or that the foreman was given the oath as required by §13-5-45, where one of the names of the grand jurors was listed on the indictment as the grand jury foreman, the foreman signed the grand jury report and indictment in the slot where the foreman signs, and the foreman’s name was listed along with the other sworn grand jurors, since the statute does not provide that the court minutes must reflect that a grand jury foreman was appointed and sworn. Rogers v. State, 599 So. 2d 930, 1992 Miss. LEXIS 123 (Miss.), overruled in part, Mayfield v. State, 612 So. 2d 1120, 1992 Miss. LEXIS 861 (Miss. 1992).

An indictment charging the defendant with the crimes of perjury and conspiracy to commit perjury would not be quashed based upon the fact that the same grand jurors who heard the defendant testify, and were therefore witnesses to his alleged perjury, were the same grand jurors who returned the indictment against him, even though it would have been the better practice not to have sought the perjury and conspiracy indictments from the same grand jury who heard the alleged perjury, where there was no evidence of any fraud or wrongdoing on the part of the grand jurors. Smallwood v. State, 584 So. 2d 733, 1991 Miss. LEXIS 405 (Miss. 1991).

An indictment may not be challenged because of incompetent evidence. Hood v. State, 523 So. 2d 302, 1988 Miss. LEXIS 74 (Miss. 1988).

Determination of sufficiency of evidence proposed to be presented to support crime charged in indictment is not appropriate matter for motion to quash. State v. Peoples, 481 So. 2d 1069, 1986 Miss. LEXIS 2337 (Miss. 1986).

When constable resigns from office and does not seek re-election in compliance with agreement with district attorney, in which district attorney agrees not to prosecute constable, and constable is subsequently indicted for extortion, constable is entitled to have indictment quashed. Edwards v. State, 465 So. 2d 1085, 1985 Miss. LEXIS 1989 (Miss. 1985).

An indictment will not be quashed because found by a grand jury after it had been orally discharged, where no order had been entered. Earnest v. State, 237 Miss. 509, 115 So. 2d 295, 1959 Miss. LEXIS 497 (Miss. 1959).

Murder indictment was quashed for conduct of circuit judge in entering grand jury room and informing grand jurors that, because of absence of district attorney due to illness in his family, the circuit judge would perform the duties of district attorney pending the latter’s arrival at court, in running over dockets with grand jurors and requesting them to take up the murder case in question, and being in grand jury room when sheriff exhibited weapon used in the homicide and heard the sheriff’s testimony, notwithstanding that the circuit judge was actuated by the best of motives and took particular pains not to express an opinion as to what their presentment should be, and was not in the grand jury room when the grand jurors discussed the evidence and voted upon the indictment. Sanders v. State, 198 Miss. 587, 22 So. 2d 500, 1945 Miss. LEXIS 231 (Miss. 1945).

Statements by circuit judge dictated into record that he informed grand jury, that, because of absence of district attorney due to illness in his family, the circuit judge would advise the grand jury and would generally perform the duties of district attorney pending the latter’s arrival at court, that circuit judge returned to the grand jury room after they had organized, ran over the docket with them, requested them to take up a particular homicide case, was in the grand jury room when the sheriff exhibited the weapon used in the homicide and heard the sheriff’s testimony, but that the circuit judge took particular pains not to express an opinion as to what the grand jurors’ presentment should be, as well as not to be in the grand jury room when they discussed the evidence and voted upon indictments, constituted an adverse ruling on motion to quash the particular homicide indictment on grounds that circuit judge acted as district attorney and his presence in the grand jury room, in view of fact that the court immediately proceeded to try the case on its merits under such indictment. Sanders v. State, 198 Miss. 587, 22 So. 2d 500, 1945 Miss. LEXIS 231 (Miss. 1945).

A motion to quash was the appropriate remedy to attack an indictment based upon documents and papers obtained from the defendant under a writ of duces tecum, in view of defendant’s immunity from prosecution under such circumstances. State v. Bates, 187 Miss. 172, 192 So. 832, 1940 Miss. LEXIS 209 (Miss. 1940).

Where motion to quash affidavit charging offense was too general in that it failed to set out alleged defect and was not supported by evidence, motion to quash affidavit, made before jury was impaneled, held properly overruled. Wampold v. State, 170 Miss. 732, 155 So. 350, 1934 Miss. LEXIS 170 (Miss. 1934).

Motion to quash affidavit charging offense, made at conclusion of state’s evidence and during introduction of defendant’s evidence, and which failed to name defect in affidavit, held properly overruled as being too general and as coming too late. Wampold v. State, 170 Miss. 732, 155 So. 350, 1934 Miss. LEXIS 170 (Miss. 1934).

Motion to quash indictment held properly denied where there was no offer of evidence by defendant when case was tried on merits in support of allegations. Smith v. State, 158 Miss. 355, 128 So. 891, 1930 Miss. LEXIS 12 (Miss. 1930).

RESEARCH REFERENCES

ALR.

Privilege against self-incrimination as to testimony before grand jury. 38 A.L.R.2d 225.

Failure to swear or irregularity in swearing witnesses appearing before grand jury as ground for dismissal of indictment. 23 A.L.R.4th 154.

Presence of unauthorized persons during state grand jury proceedings as affecting indictment. 23 A.L.R.4th 397.

Am. Jur.

41 Am. Jur. 2d, Indictments and Informations §§ 160 et seq., 276, 278 et seq.

8 Am. Jur. Pl & Pr Forms (Rev), Indictments and Informations, Forms 91 et seq., 111 et seq., (motion to quash, dismiss, or set aside).

CJS.

42 C.J.S., Indictments and Informations §§ 265-268 et seq., 302 et seq.

Cross References —

Publication of summons for unknown heirs and unknown defendants in chancery court proceedings, see §13-3-25.

Amendment of indictment or information in case of misnomer, or dilatory plea, see §99-7-19.

Amendments in criminal case where variance is found between matter stated in indictment and proof, see §99-17-13.

Amendments to proceedings brought up from justice of the peace or municipal court, see §99-35-11.

JUDICIAL DECISIONS

1. In general.

Where the appellant failed to plead that his surname was not shown in the indictment before pleading not guilty, he waived his right to claim that he was not the person named in the indictment, and the trial court was not required to amend the indictment on its own motion. Anselmo v. State, 312 So. 2d 712, 1975 Miss. LEXIS 1656 (Miss. 1975).

Variance between the name of accused in an indictment and the name under which he was extradited is immaterial where in all the proof he was named as in the indictment. Stokes v. State, 240 Miss. 453, 128 So. 2d 341, 1961 Miss. LEXIS 477 (Miss. 1961).

RESEARCH REFERENCES

Am. Jur.

41 Am. Jur. 2d, Indictments and Informations § 173.

CJS.

42 C.J.S., Indictments and Informations §§ 174, 309.

Cross References —

Gambling in general, see §§97-33-1 et seq.

Another section derived from same 1942 code section, see §97-33-5.

RESEARCH REFERENCES

CJS.

38 C.J.S., Gaming §§ 174 et seq.

Editor’s Notes —

Sections 97-31-1 and 97-31-3, included in Chapter 31 of Title 97, referred to in this section, were repealed by Laws of 1988, ch. 562, § 3, effective from and after July 1, 1988.

Section 97-31-13, included in Chapter 31 of Title 97, referred to in this section, was repealed by Laws of 1980, ch. 453, effective from and after passage (approved May 1, 1980).

Cross References —

Dispensation of formalities in indictment, see §99-7-3.

JUDICIAL DECISIONS

1. In general.

In charging offense of unlawful possession of wine, it is not necessary to negative exception of homemade wine, and state is not required to prove that wine was not homemade wine used for domestic and household purposes only. Forbert v. State, 179 Miss. 66, 174 So. 248, 1937 Miss. LEXIS 15 (Miss. 1937).

Indictment charging unlawful possession of still held not demurrable because it did not show it was a whisky still. Powe v. State, 176 Miss. 455, 169 So. 763, 1936 Miss. LEXIS 144 (Miss. 1936).

Indictment for possession need not negative exceptions in statute. Frazier v. State, 141 Miss. 18, 106 So. 443, 1925 Miss. LEXIS 227 (Miss. 1925).

That an indictment for unlawful possession of a still must negative exceptions. State v. Speaks, 132 Miss. 159, 96 So. 176, 1923 Miss. LEXIS 46 (Miss. 1923); Dawsey v. State, 136 Miss. 18, 100 So. 526, 1924 Miss. LEXIS 105 (Miss. 1924); State v. Clark, 145 Miss. 207, 110 So. 447, 1926 Miss. LEXIS 15 (Miss. 1926).

RESEARCH REFERENCES

Am. Jur.

45 Am. Jur. 2d, Intoxicating Liquors §§ 266 et seq.

CJS.

48 C.J.S., Intoxicating Liquors §§ 405, 406 et seq.

Amendment Notes —

The 2006 amendment added (2).

Cross References —

Embezzlement involving public officers, see §§97-11-25 through97-11-31.

Larceny-stealing bond, note, bill, securities or other evidences of debt, see §97-17-45.

Embezzlement-property held in trust or received on contract, see §97-23-25.

JUDICIAL DECISIONS

1. Larceny.

2. Embezzlement.

1. Larceny.

While this section [Code 1942, § 2459] provides the exception as to descriptions of property in indictments for larceny by allowing the same to be described in general terms where the charge is for larceny of money or evidences of debt, the chapter on criminal procedure does not otherwise abrogate the common-law rule requiring the description of personal property in an indictment for larceny to be reasonably definite and certain. Rutherford v. State, 196 Miss. 321, 17 So. 2d 803, 1944 Miss. LEXIS 195 (Miss. 1944).

A case where the description of money stolen is held to be sufficient where it is described as so many dollars of the value of so many dollars. State v. Walker, 115 Miss. 700, 76 So. 634, 1917 Miss. LEXIS 252 (Miss. 1917).

2. Embezzlement.

An indictment for embezzlement should allege the ownership of the property alleged to have been embezzled. Langford v. State, 239 Miss. 483, 123 So. 2d 614, 1960 Miss. LEXIS 311 (Miss. 1960).

Indictment for embezzlement does not have to set forth evidence, but only enough to inform defendant sufficiently of charge therein laid against him. State v. May, 208 Miss. 862, 45 So. 2d 728, 1950 Miss. LEXIS 306 (Miss. 1950).

Indictment for embezzlement of money received on sale of automobile by agent of seller is not demurrable for failure to state date of alleged sale by agent or name of person to whom automobile was alleged to have been sold. State v. May, 208 Miss. 862, 45 So. 2d 728, 1950 Miss. LEXIS 306 (Miss. 1950).

Indictment charging embezzlement by schoolteacher of money belonging to trustees of school without charging names of the trustees or alleging their names were unknown, is defective. Voss v. State, 208 Miss. 303, 44 So. 2d 402, 1950 Miss. LEXIS 249 (Miss. 1950).

An indictment for embezzling money need not state the value of the money. Richberger v. State, 90 Miss. 806, 44 So. 772, 1907 Miss. LEXIS 122 (Miss. 1907).

RESEARCH REFERENCES

Am. Jur.

26 Am. Jur. 2d, Embezzlement §§ 36 et seq.

50 Am. Jur. 2d, Larceny §§ 108 et seq.

CJS.

29A C.J.S., Embezzlement §§ 36 et seq.

Cross References —

Criminal libel generally, see §§97-3-55,97-3-57.

RESEARCH REFERENCES

ALR.

Validity of criminal defamation statutes. 68 A.L.R.4th 1014.

Am. Jur.

50 Am. Jur. 2d, Libel and Slander §§ 515 et seq.

RESEARCH REFERENCES

Am. Jur.

38 Am. Jur. 2d, Gambling §§ 107 et seq.

CJS.

38 C.J.S., Gaming §§ 131 et seq.

54 C.J.S., Lotteries §§ 30, 34.

Amendment Notes —

The 2004 amendment added (2) and made minor stylistic changes.

Cross References —

Right of accused in criminal prosecution to demand nature and cause of accusation, see Miss. Const. Art. 3, § 26.

JUDICIAL DECISIONS

1. In general.

2. Validity.

3. Construction and application.

4. Sufficiency of indictment.

5. Sufficiency of the evidence.

6. Heat of passion instruction.

1. In general.

An indictment charging that the defendant unlawfully, feloniously and by culpable negligence, did kill a person contrary to Code 1942, § 2220 and against the peace and dignity of the State of Mississippi, adequately charged the defendant with the offense of manslaughter by culpable negligence in operation of an automobile, despite the mistake in citation of the statute, inasmuch as reference to the code section in the indictment was surplusage and unnecessary to the charge of the crime for which the defendant was tried. Dendy v. State, 224 Miss. 208, 79 So. 2d 827, 1955 Miss. LEXIS 481 (Miss. 1955).

Indictment in language of statute for murder need not set forth manner and details of homicide. Talbert v. State, 172 Miss. 243, 159 So. 549, 1935 Miss. LEXIS 120 (Miss. 1935).

2. Validity.

Mississippi capital murder indictments alleging that defendant entered house “to unlawfully do violence to the persons situated therein” were fatally defective for their failure to state intended felony that comprised charged burglary; “intent to do violence” was not a crime, prosecutor based his argument to support charge of burglary upon that “non-crime,” and jury was instructed that burglary charge could be predicated upon defendant’s intent either to steal or to “unlawfully do violence.” Lockett v. Puckett, 988 F. Supp. 1019, 1997 U.S. Dist. LEXIS 20731 (S.D. Miss. 1997), rev'd, vacated, 230 F.3d 695, 2000 U.S. App. LEXIS 25501 (5th Cir. Miss. 2000).

The means and manner of the commission of murder are not necessarily embraced in a description “of the nature and cause of the accusation” in the sense of Art. 3, § 26 of the constitution of the state; hence the statute is constitutional. Newcomb v. State, 37 Miss. 383, 1859 Miss. LEXIS 27 (Miss. 1859).

3. Construction and application.

This section [Code 1942, § 2454] covers all homicides, both statutory and common law, and under an indictment drawn in accordance therewith any facts that evidence murder or manslaughter may be introduced in evidence. Carrol v. State, 183 Miss. 1, 183 So. 703, 1938 Miss. LEXIS 211 (Miss. 1938).

Assault with intent is not within statutory indictment for murder. Bell v. State, 149 Miss. 745, 115 So. 896, 1928 Miss. LEXIS 84 (Miss. 1928); Scott v. State, 60 Miss. 268, 1882 Miss. LEXIS 48 (Miss. 1882).

The word “feloniously” carries with it the idea the killing is unlawful in an indictment for murder. Winston v. State, 127 Miss. 477, 90 So. 177, 1921 Miss. LEXIS 246 (Miss. 1921).

The word “did” in an indictment for murder held to be a part of the offense charged. Hall v. State, 91 Miss. 216, 44 So. 826, 1907 Miss. LEXIS 151 (Miss. 1907).

4. Sufficiency of indictment.

A murder indictment which stated that the defendant, “willfully, and feloniously, with the deliberate design to effect the death” of the two victims, killed them by “suffocation,” sufficiently notified defendant of the charges against her, even though expert testimony established the victims died of strangulation, which is not exactly synonymous with suffocation; the purpose of the indictment is to give the accused notice and a reasonable description of the charges, to enable her to prepare a defense, and there is no requirement that it set forth the means of the victims’ death. Blakeney v. State, 2009 Miss. App. LEXIS 887 (Miss. Ct. App.), op. withdrawn, sub. op., 2009 Miss. App. LEXIS 978 (Miss. Ct. App. Dec. 8, 2009).

Denial of the inmate’s petition for postconviction relief was appropriate because his motion was time-barred and there was no applicable exception to the time limit; the supreme court held that the inmate was required, and failed, to prove that he was prejudiced by evidence that should have been excluded in a simple murder trial; additionally, the first portion of his indictment, standing alone, sufficiently charged him with simple murder. Lambert v. State, 941 So. 2d 804, 2006 Miss. LEXIS 485 (Miss. 2006).

Defendant was properly apprised of the nature and cause of a homicide by an indictment, despite the fact that the manner and method of the crime was not disclosed; the jury instructions sufficiently informed the jury that the act committed by defendant involved asphyxiation. Starns v. State, 867 So. 2d 227, 2003 Miss. LEXIS 873 (Miss. 2003).

Manslaughter is not a lesser-included offense of murder; therefore, a trial court was not permitted to enter a limited directed verdict on a murder charge and allow a jury to consider the unindicted offense of manslaughter because defendant did not receive notice of the manslaughter charge in the murder indictment. State v. Shaw, 2003 Miss. LEXIS 525 (Miss. Oct. 9, 2003), op. withdrawn, sub. op., 880 So. 2d 296, 2004 Miss. LEXIS 1027 (Miss. 2004).

Eyewitness testimony of multiple witnesses was sufficient evidence that homicide committed by defendant, an armed late arriver to a nightclub fight, was not self-defense, and defendant was not prejudiced by the failure of the original indictment to state a specific overt act by which the homicide was committed, particularly where the indictment was amended to read “by shooting with a pistol.” Jones v. State, 856 So. 2d 285, 2003 Miss. LEXIS 363 (Miss. 2003).

An indictment charging a defendant with intentional murder and assigning a maximum penalty of life was sufficient to give the defendant fair notice of the crime charged, even though the jury instructions in the ensuing prosecution failed to include a charge that the murder was intentional. Berry v. State, 575 So. 2d 1, 1990 Miss. LEXIS 849 (Miss. 1990), cert. denied, 500 U.S. 928, 111 S. Ct. 2042, 114 L. Ed. 2d 126, 1991 U.S. LEXIS 2673 (U.S. 1991).

Murder indictment which follows language of “depraved heart” provision of §97-3-19 need not use words “malice aforethought.” Johnson v. State, 475 So. 2d 1136, 1985 Miss. LEXIS 2238 (Miss. 1985).

The trial court was correct in overruling defendant’s demurrer to the indictment in a prosecution for manslaughter, notwithstanding the contention that the indictment should have charged that the death had occurred “by culpable negligence” and that use of the word “willfully” resulted in a charge of voluntary rather than involuntary manslaughter. Yazzie v. State, 366 So. 2d 240, 1979 Miss. LEXIS 2197 (Miss. 1979), overruled in part, State v. Buckhalter, 119 So.3d 1015, 2013 Miss. LEXIS 405 (Miss. 2013).

Where an indictment charged that the defendant did willfully, unlawfully, feloniously, and of his malice aforethought, kill and murder the deceased, the indictment was sufficient to charge murder in the proper terms, and the state was entitled to instructions setting forth both the theory of a premeditated killing and the theory of a homicide resulting from the commission of a crime of violence. Wilson v. J. Ed Turner, Inc., 221 So. 2d 368, 1969 Miss. LEXIS 1497 (Miss. 1969).

An indictment for manslaughter in the statutory form is sufficient. Jones v. State, 244 Miss. 596, 145 So. 2d 446, 1962 Miss. LEXIS 483 (Miss. 1962).

An indictment for manslaughter charging that the defendant “did unlawfully and feloniously kill and slay” a certain person, a human being, was sufficient. Cutshall v. State, 191 Miss. 764, 4 So. 2d 289, 1941 Miss. LEXIS 185 (Miss. 1941).

Manslaughter indictment charging defendant wilfully and feloniously killed certain person by culpable negligence held not defective because of word “wilful.” Williams v. State, 161 Miss. 406, 137 So. 106, 1931 Miss. LEXIS 269 (Miss. 1931), overruled in part, State v. Buckhalter, 119 So.3d 1015, 2013 Miss. LEXIS 405 (Miss. 2013).

Manslaughter indictment charging culpable negligence held not defective because not setting forth conduct constituting culpable negligence. Williams v. State, 161 Miss. 406, 137 So. 106, 1931 Miss. LEXIS 269 (Miss. 1931), overruled in part, State v. Buckhalter, 119 So.3d 1015, 2013 Miss. LEXIS 405 (Miss. 2013).

Indictment for manslaughter setting up alleged negligence in operation of automobile was sufficient against demurrer. Bradford v. State, 158 Miss. 210, 127 So. 277, 1930 Miss. LEXIS 2 (Miss. 1930).

An indictment for a homicide may follow the form given in the statute and it will be sufficient. Lee v. State, 124 Miss. 398, 86 So. 856, 1920 Miss. LEXIS 522 (Miss. 1920).

5. Sufficiency of the evidence.

Eyewitness testimony of multiple witnesses was sufficient evidence that homicide committed by defendant, an armed late arriver to a nightclub fight, was not self-defense; viewing as true the evidence which supports the jury’s verdict, it could not be said that the verdict was so contrary to the overwhelming weight of the evidence that allowing it to stand would result in “an unconscionable injustice.” Jones v. State, 856 So. 2d 285, 2003 Miss. LEXIS 363 (Miss. 2003).

6. Heat of passion instruction.

Defendant was not entitled to a heat-of-passion manslaughter instruction under Miss. Code Ann. §97-3-35 as a lesser included offense of murder under Miss. Code. Ann. §99-7-37(2) since: (1) defendant’s testimony that he snapped did not elevate the shooting to the heat of passion; (2) two witnesses testified that defendant approached the victim from behind and shot him; and (3) even if the victim had previously assaulted him and defendant suspected that he had had a sexual relationship with his wife, there was not an immediate and reasonable provocation. Sanders v. State, 103 So.3d 775, 2012 Miss. App. LEXIS 795 (Miss. Ct. App. 2012).

RESEARCH REFERENCES

ALR.

Necessity and materiality of statement of place of death in indictment or information charging homicide. 59 A.L.R.2d 901.

Homicide: Liability where death immediately results from treatment or mistreatment of injury inflicted by defendant. 50 A.L.R.5th 467.

Determination of “materiality” under USCS § 1623, penalizing false material declarations before grand jury or court. 60 A.L.R. Fed. 76.

Am. Jur.

40 Am. Jur. 2d, Homicide §§ 199 et seq., 441 et seq.

Law Reviews.

Lesser Included Offenses in Mississippi, 74 Miss. L.J. 135, Fall, 2004.

CJS.

40 C.J.S., Homicide §§ 223 et seq.

Cross References —

Conviction for perjury or subornation of perjury disqualifying witness, see §13-1-11.

Indictment for subornation of perjury, see §99-7-41.

Perjury generally, see §§97-9-59 et seq.

JUDICIAL DECISIONS

1. In general.

An indictment for perjury must specifically allege the true facts; thus, an indictment for perjury was fatally defective and should have been quashed where it did not attempt to set out the truth as to the allegation that the defendant had “testified falsely that he had not been court-martialed in the military and that he had an honorable discharge and a general discharge under honorable conditions from the United States Army.” Ford v. State, 610 So. 2d 370, 1992 Miss. LEXIS 747 (Miss. 1992).

An indictment charging the defendant with the crimes of perjury and conspiracy to commit perjury would not be quashed based upon the fact that the same grand jurors who heard the defendant testify, and were therefore witnesses to his alleged perjury, were the same grand jurors who returned the indictment against him, even though it would have been the better practice not to have sought the perjury and conspiracy indictments from the same grand jury who heard the alleged perjury, where there was no evidence of any fraud or wrongdoing on the part of the grand jurors. Smallwood v. State, 584 So. 2d 733, 1991 Miss. LEXIS 405 (Miss. 1991).

Conviction of defendant for perjury was upheld over objection that alleged perjury was not proved by testimony of 2 witnesses or by one witness and corroborating circumstances; common-law rule requiring one witness and corroborating circumstances to sustain perjury conviction refers only to proof of falsity of accused’s statement, but does not extend to proof of other elements of crime; testimony of defendant’s mother satisfied requirement that one witness testify to falsity of defendant’s testimony at trial where perjury was allegedly committed, and her testimony was consistent with defendant’s 2 prior sworn statements; to sustain conviction, both of contradictory statements must be under oath. McFee v. State, 510 So. 2d 790, 1987 Miss. LEXIS 2631 (Miss. 1987).

Where an exhibit attached to an indictment for perjury showed on its face that the defendant was not under oath when the allegedly false statements in his application for voter registration were made, the indictment was fatally defective, and in a coram nobis proceeding the defendant was discharged. Echoles v. State, 254 Miss. 133, 180 So. 2d 630, 1965 Miss. LEXIS 936 (Miss. 1965).

To charge that the assistant cashier of a bank “did make oath” is sufficient to show that oath was made in writing. State v. Kelly, 113 Miss. 461, 74 So. 325, 1917 Miss. LEXIS 123 (Miss. 1917).

This section [Code 1942, § 2457] does not dispense with the necessity of averring the substance of the issue on which the perjury is charged to have been committed. To do so would violate Const. 1890 § 26, securing to the defendant the right to demand the nature and cause of the action against him. State v. Silverberg, 78 Miss. 858, 29 So. 761, 1901 Miss. LEXIS 135 (Miss. 1901).

An indictment for perjury must aver what the truth is in relation to the matter of which perjury is assigned. State v. Silverberg, 78 Miss. 858, 29 So. 761, 1901 Miss. LEXIS 135 (Miss. 1901).

An indictment for perjury setting forth the court proceedings, issue and trial in which and date at which the perjury was committed and not otherwise defective is sufficient under this section [Code 1942, § 2457]. State v. Jolly, 73 Miss. 42, 18 So. 541, 1895 Miss. LEXIS 78 (Miss. 1895).

RESEARCH REFERENCES

Am. Jur.

60A Am. Jur. 2d, Perjury §§ 25 et seq.

CJS.

70 C.J.S., Perjury §§ 48 et seq.

Cross References —

Subornation of perjury, see §97-9-63.

Indictment for perjury, see §99-7-39.

RESEARCH REFERENCES

Am. Jur.

60A Am. Jur. 2d, Perjury § 61.

RESEARCH REFERENCES

Practice References.

Blinka, Daniel D., and Imwinkelried, Edward J., Criminal Evidentiary Foundations (Michie).

Doyle, Loftus, and Dysart, Eyewitness Testimony: Civil and Criminal, Fifth Edition (LexisNexis).

George, Jr., B. James, Tymkovich, Timothy M., Coats, Nathan B., and Erickson, William H., United States Supreme Court Cases and Comments: Criminal Law and Procedure (Matthew Bender).

Mauriello, P. Thomas, Criminal Investigation Handbook (Matthew Bender).

Newton, Brent E., Practical Criminal Procedure: A Constitutional Manual, Second Edition (NITA).

Ordover, Abraham P., Criminal Law Advocacy (Matthew Bender).

Sacks, Garfield and Garfield, Criminal Defense Techniques (Matthew Bender Elite Products).

Schoenberg, Ronald L., Criminal Law Deskbook (Matthew Bender).

Shapiro, Jay, Criminal Practice Handbook, Fourth Edition (Michie).

Criminal Constitutional Law (Matthew Bender).

Mississippi Criminal and Traffic Law Manual (LexisNexis Law Enforcement).

Pretrial Motions in Criminal Prosecutions 4th Edition (LexisNexis).

JUDICIAL DECISIONS

1. In general.

The term “process,” within the meaning of the section stipulating that all process, except where otherwise provided, shall be issued and signed by the clerk of the court, includes the ordinary warrant for arrest, and certainly so when taken in connection with this section [Code 1942, § 2461] opening with the sentence that “the process for arrest on an indictment shall be a capias,” etc. Cooper v. State, 193 Miss. 672, 10 So. 2d 764, 1942 Miss. LEXIS 156 (Miss. 1942).

The fact that a capias for arrest on a misdemeanor charge was issued on the affidavit of the county prosecuting attorney, by the clerk of the county court without any order therefor from the county judge, did not render it invalid, or avoid jurisdiction, by the court over the person of the defendant, since, inasmuch as the affidavit of the county prosecuting attorney took the place of an indictment in the circuit court, the process on the charge of misdemeanor so made was a capias to be issued by the clerk of the county court. Cooper v. State, 193 Miss. 672, 10 So. 2d 764, 1942 Miss. LEXIS 156 (Miss. 1942).

Cross References —

Service upon corporate defendant in civil action and effect thereof, see §13-3-49.

RESEARCH REFERENCES

Am. Jur.

62B Am. Jur. 2d, Process § 129.

Cross References —

Service upon corporate defendant in civil action and effect thereof, see §13-3-49.

Cross References —

Service upon corporate defendant in civil action and effect thereof, see §13-3-49.

Editor’s Notes —

Pursuant to Miss. Const., Art. 6, § 171, all reference in the Mississippi Code to justice of the peace shall mean justice court judge.

Cross References —

Power of chancery court to issue subpoenas for witnesses, see §9-5-85.

Issuance of subpoenas by justice of the peace, see §11-9-115.

Issuance of subpoenas in habeas corpus proceedings, see §11-43-49.

Subpoenas for witnesses in civil actions, see §13-3-93.

Power of grand jury foreman to issue subpoenas for witnesses, see §13-5-63.

Witness fees generally, see §25-7-47.

Service of subpoena, see §99-9-17.

Issuance of subpoenas by conservators of peace, see §99-15-9.

Right to subpoena witnesses under Mississippi Uniform Post-Conviction Collateral Relief Act, see §99-39-23.

Subpoenas, see Miss. Uniform Rules of Circuit and County Court Practice, Rule 2.01.

Expert witnesses, see Miss. Uniform Rules of Circuit and County Court Practice, Rule 3.01.

JUDICIAL DECISIONS

1. In general.

Mother failed to prove by a preponderance of the evidence under Miss. Code Ann. §93-9-9(1) that it was in her child’s best interest that her surname not be the father’s, as the only evidence offered by the mother that the child should not have the father’s surname was possible embarrassment and confusion for the mother and child to have different names. Rice v. Merkich, 34 So.3d 555, 2010 Miss. LEXIS 230 (Miss. 2010).

Where counsel is unable to locate witnesses, use of subpoenas covers 2 purposes; subpoenas utilize services of state in locating witness for interview and also secure witness’ attendance at court. Triplett v. State, 666 So. 2d 1356, 1995 Miss. LEXIS 597 (Miss. 1995).

Failure of counsel to issue subpoenas even for friendly, favorable witnesses is perilous, because if for some reason witness fails to appear, prerequisite for continuance is that he or she is either under process or reasonable effort has been made to serve him or her with subpoena. Triplett v. State, 666 So. 2d 1356, 1995 Miss. LEXIS 597 (Miss. 1995).

In order to be entitled to continuance because of absent witness, counsel must demonstrate to court that he or she “has used due diligence” to secure witness’ presence; embraced therein is requirement that counsel has made timely effort to place absent witness under subpoena. Triplett v. State, 666 So. 2d 1356, 1995 Miss. LEXIS 597 (Miss. 1995).

RESEARCH REFERENCES

Am. Jur.

81 Am. Jur. 2d, Witnesses §§ 8, 9 et seq.

21 Am. Jur. Pl & Pr Forms, Witnesses, Form 21:703, (subpoena issued by court).

25 Am. Jur. Pl & Pr Forms (Rev), Witnesses, Forms 62-64, (subpoena).

CJS.

98 C.J.S., Witnesses §§ 21, 25 et seq.

Lawyers’ Edition.

Accused’s right, under Federal Constitution’s Sixth Amendment, to compulsory process for obtaining witnesses in accused’s favor–Supreme Court cases. 98 L. Ed. 2d 1074.

Cross References —

Fees of sheriff generally, see §25-7-19.

RESEARCH REFERENCES

Am. Jur.

81 Am. Jur. 2d, Witnesses §§ 8, 9 et seq.

21 Am. Jur. Pl & Pr Forms, Witnesses, Form 21:671, (application for attachment of witness to compel attendance).

25 Am. Jur. Pl & Pr Forms (Rev), Witnesses, Form 13, (application for attachment of witness to compel attendance to testify).

CJS.

98 C.J.S., Witnesses §§ 21, 25 et seq.

JUDICIAL DECISIONS

1. In general.

Where counsel is unable to locate witnesses, use of subpoenas covers 2 purposes; subpoenas utilize services of state in locating witness for interview and also secure witness’ attendance at court. Triplett v. State, 666 So. 2d 1356, 1995 Miss. LEXIS 597 (Miss. 1995).

RESEARCH REFERENCES

Am. Jur.

81 Am. Jur. 2d, Witnesses § 12.

21 Am. Jur. Pl & Pr Forms, Witnesses, Forms 21:716-21:723, (affidavit of service of subpoena).

25 Am. Jur. Pl & Pr Forms (Rev), Witnesses, Forms 74-81, (affidavit of service of subpoena).

CJS.

98 C.J.S., Witnesses §§ 26-29.

Cross References —

Form of attachment of witness issued by justice of the peace, see §11-9-121.

Attachment of defaulting witness in habeas corpus proceeding, see §11-43-49.

Another section derived from same 1942 code section, see §13-3-103.

RESEARCH REFERENCES

Am. Jur.

21 Am. Jur. Pl & Pr Forms, Witnesses, Form 21:737, (attachment of witness for failure to obey subpoena).

25 Am. Jur. Pl & Pr Forms (Rev), Witnesses, Forms 96, 97, (attachment of witness for failure to obey subpoena).

CJS.

98 C.J.S., Witnesses §§ 57, 58.

JUDICIAL DECISIONS

1. In general.

Where counsel is unable to locate witnesses, use of subpoenas covers 2 purposes; subpoenas utilize services of state in locating witness for interview and also secure witness’ attendance at court. Triplett v. State, 666 So. 2d 1356, 1995 Miss. LEXIS 597 (Miss. 1995).

Where the witness’s deliberate and wilful refusal to appear and testify constituted constructive contempt, the power of the court to punish this contempt was not limited by the terms of this statute. Buskirk v. State, 321 So. 2d 295, 1975 Miss. LEXIS 1524 (Miss. 1975).

After the state rested its case in a prosecution for assault and battery with an intent to kill, the district attorney had authority to release a witness subpoenaed by the state, who had not been subpoenaed by the defendant. Nicholson v. State, 230 Miss. 267, 92 So. 2d 654, 1957 Miss. LEXIS 366 (Miss. 1957).

RESEARCH REFERENCES

Am. Jur.

21 Am. Jur. Pl & Pr Forms, Witnesses, Form 21:735, (scire facias on judgment against witness failing to obey subpoena).

25 Am. Jur. Pl & Pr Forms (Rev), Witnesses, Form 93, (scire facias on judgment against witness failing to obey subpoena).

Cross References —

Power of grand jury foreman to issue subpoenas for witnesses, see §13-5-63.

Grand jury convening in vacation, see Miss. Unif. Cir. & County Ct. Prac. R. 7.02.

RESEARCH REFERENCES

Am. Jur.

81 Am. Jur. 2d, Witnesses §§ 8, 9 et seq.

21 Am. Jur. Pl & Pr Forms, Witnesses, Form 21:704, (subpoena issued by court to appear before grand jury).

25 Am. Jur. Pl & Pr Forms (Rev), Witnesses, Forms 63, 64 (subpoena to appear before grand jury).

38 Am. Jur. Trials, Representing the Grand Jury Target Witness, §§ 1 et seq.

CJS.

98 C.J.S., Witnesses §§ 21, 25 et seq., 57, 58.

Cross References —

Power of grand jury foreman to issue subpoenas for witnesses, see §13-5-63.

RESEARCH REFERENCES

ALR.

Privilege against self-incrimination as to testimony before grand jury. 38 A.L.R.2d 225.

CJS.

98 C.J.S., Witnesses §§ 57, 58.

JUDICIAL DECISIONS

1. In general.

A conviction for selling three capsules of heroin would be reversed where the state had agreed to have an essential out-of-state witness present and failed to do so, even though the witness could have been subpoenaed under Uniform Witness Act. Sullivan v. State, 364 So. 2d 277, 1978 Miss. LEXIS 2218 (Miss. 1978).

RESEARCH REFERENCES

ALR.

Sufficiency of evidence to support or require finding that in-state witness in criminal case is “material and necessary” justifying issuance of summons directing attendance of witness under Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. 12 A.L.R.4th 771.

Am. Jur.

81 Am. Jur. 2d, Witnesses § 7.

CJS.

98 C.J.S., Witnesses §§ 15, 17, 18, 19.

RESEARCH REFERENCES

Am. Jur.

81 Am. Jur. 2d, Witnesses § 7.

CJS.

98 C.J.S., Witnesses §§ 15, 17, 18, 19.

Cross References —

Witness from another state summoned to testify in this state, see §99-9-33.

RESEARCH REFERENCES

ALR.

Sufficiency of evidence to support or require finding that in-state witness in criminal case is “material and necessary” justifying issuance of summons directing attendance of witness under Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. 12 A.L.R.4th 771.

Am. Jur.

81 Am. Jur. 2d, Witnesses § 7.

CJS.

98 C.J.S., Witnesses §§ 15, 17, 18, 19.

Cross References —

Witness in this state summoned to testify in another state, see §99-9-31.

JUDICIAL DECISIONS

1. In general.

Witness who traveled from out-of-state pursuant to a subpoena was not overcompensated. Ronk v. State, 172 So.3d 1112, 2015 Miss. LEXIS 219 (Miss. 2015), cert. denied, — U.S. —, 136 S. Ct. 1657, 194 L. Ed. 2d 773, 2016 U.S. LEXIS 2643 (U.S. 2016), in part, — So.3d —, 2016 Miss. LEXIS 493 (Miss. 2016).

There is no method by which an out-of-state witness can be paid, and the trial court is without authority to force a witness for the defense to leave a foreign state to testify in Mississippi. Chandler v. State, 272 So. 2d 641, 1973 Miss. LEXIS 1537 (Miss. 1973).

Code 1942, § 1895 does not authorize a court to procure the attendance and testimony of witnesses for an accused at public expense, and an accused is not deprived of his constitutional right to compulsory process and to due process of law and equal protection of the laws by the refusal of a court to order an allowance for the payment of witnesses sought by the defendant to be subpoenaed from another state pursuant to such section. Diddlemeyer v. State, 234 So. 2d 292, 1970 Miss. LEXIS 1402 (Miss.), cert. denied, 400 U.S. 917, 91 S. Ct. 177, 27 L. Ed. 2d 157, 1970 U.S. LEXIS 471 (U.S. 1970).

In a criminal prosecution, where the trial court was without authority to compel the attendance of witnesses requested by the defendant under any circumstances, so long as they were outside the state, the court’s denial of compulsory process for the attendance of three witnesses confined in penitentiaries in other states, and a fourth witness who resided out of the state, did not constitute a denial of due process or equal protection. Diddlemeyer v. State, 234 So. 2d 292, 1970 Miss. LEXIS 1402 (Miss.), cert. denied, 400 U.S. 917, 91 S. Ct. 177, 27 L. Ed. 2d 157, 1970 U.S. LEXIS 471 (U.S. 1970).

RESEARCH REFERENCES

ALR.

Uniform Act to secure attendance of witnesses from without the state in criminal proceedings. 44 A.L.R.2d 732.

Availability under Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings of subpoena duces tecum. 7 A.L.R.4th 836.

Sufficiency of evidence to support or require finding that out-of-state witness in criminal case is “material witness” justifying certificate to secure attendance under Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. 12 A.L.R.4th 742.

Sufficiency of evidence to support or require finding that in-state witness in criminal case is “material and necessary” justifying issuance of summons directing attendance of witness under Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. 12 A.L.R.4th 771.

Am. Jur.

81 Am. Jur. 2d, Witnesses § 7.

CJS.

98 C.J.S., Witnesses §§ 15, 17, 18, 19.

RESEARCH REFERENCES

ALR.

Sufficiency of evidence to support or require finding that in-state witness in criminal case is “material and necessary” justifying issuance of summons directing attendance of witness under Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. 12 A.L.R.4th 771.

Enforceability of agreement by law enforcement officials not to prosecute if accused would help in criminal investigation or would become witness against others. 32 A.L.R.4th 990.

Am. Jur.

81 Am. Jur. 2d, Witnesses § 7.

CJS.

98 C.J.S., Witnesses §§ 15, 17, 18, 19.

Cross References —

Definition of “offense,” see §1-3-37.

Concession of jurisdiction to land acquired by United States, see §§3-5-5,3-5-9.

Jurisdiction of circuit court generally, see §9-7-81.

Jurisdiction of county court generally, see §9-9-1.

Jurisdiction of justices of the peace in civil cases, see §9-11-9.

Venue of civil actions generally, see §§11-11-1 et seq.

Misdemeanors under state penal laws being criminal offenses against municipal corporations, see §21-13-19.

County in which motions may be made or a guilty plea entered with respect to criminal cases in circuit courts, see §99-15-24.

Jurisdiction of justices of the peace over criminal case, see §99-33-1.

Jurisdiction under Mississippi Uniform Post-Conviction Collateral Relief Act, see §99-39-7.

Civil and criminal procedure in federal district courts sitting in Mississippi, see Uniform Local Rules of U.S. District Courts for Northern and Southern Districts of Mississippi.

JUDICIAL DECISIONS

1. In general.

No jeopardy attached upon the impaneling and swearing in of the first jury, since the circuit court was without jurisdiction to try the minor defendant for manslaughter, and she was not placed in jeopardy for a second time by her subsequent trial for murder and conviction of manslaughter, after she had been certified by the youth court to the circuit court for trial as an adult. Butler v. State, 489 So. 2d 1093, 1986 Miss. LEXIS 2507 (Miss. 1986).

Although the state had given its consent for the United States to purchase certain of its lands for the use and benefit of Choctaw Indians, it did not give its consent for the United States to acquire civil and criminal jurisdiction over the land or the Indians and it thereby retained jurisdiction for its own courts. Tubby v. State, 327 So. 2d 272, 1976 Miss. LEXIS 1780 (Miss. 1976).

Circuit courts have all the common-law power of English criminal courts to examine, try and deliver every prisoner who is in jail or under charge within the jurisdiction of the court. State v. Thornhill, 251 Miss. 718, 171 So. 2d 308, 1965 Miss. LEXIS 896 (Miss. 1965).

RESEARCH REFERENCES

ALR.

What is proper venue under Rule 18 of the Federal Rules of Criminal Procedure for offense of bail jumping. 52 A.L.R. Fed. 901.

Am. Jur.

21 Am. Jur. 2d, Criminal Law §§ 431-434 et seq., 461 et seq.

CJS.

22 C.J.S., Criminal Law §§ 141 et seq.

Practice References.

Blinka, Daniel D., and Imwinkelried, Edward J., Criminal Evidentiary Foundations (Michie).

Doyle, Loftus, and Dysart, Eyewitness Testimony: Civil and Criminal, Fifth Edition (LexisNexis).

George, Jr., B. James, Tymkovich, Timothy M., Coats, Nathan B., and Erickson, William H., United States Supreme Court Cases and Comments: Criminal Law and Procedure (Matthew Bender).

Mauriello, P. Thomas, Criminal Investigation Handbook (Matthew Bender).

Newton, Brent E., Practical Criminal Procedure: A Constitutional Manual, Second Edition (NITA).

Ordover, Abraham P., Criminal Law Advocacy (Matthew Bender).

Sacks, Garfield and Garfield, Criminal Defense Techniques (Matthew Bender Elite Products).

Schoenberg, Ronald L., Criminal Law Deskbook (Matthew Bender).

Shapiro, Jay, Criminal Practice Handbook, Fourth Edition (Michie).

Criminal Constitutional Law (Matthew Bender).

Mississippi Criminal and Traffic Law Manual (LexisNexis Law Enforcement).

Pretrial Motions in Criminal Prosecutions 4th Edition (LexisNexis).

Amendment Notes —

The 1998 amendment extended the repealer date in subsection (2) from July 1, 1998 to July 1, 1999.

The 1999 amendment substituted “July 1, 2002” for “July 1, 1999” in (2).

The 2002 amendment substituted “July 1, 2005” for “July 1, 2002” at the end of (2).

The 2005 amendment reenacted and amended the section by extending the date of the repealer in (2) from “July 1, 2005” until “July 1, 2011.”

The 2011 amendment extended the repealer provision from “July 1, 2011” to “July 1, 2014” in (2).

The 2014 amendment extended the repealer provision in the last sentence of (2), from “July 1, 2014” to “July 1, 2024.”

Cross References —

Criminal accused’s right to trial in county where offense was committed, see Miss. Const. Art. 3, § 26.

State Grand Jury Act, see §§13-7-1 et seq.

Offenses committed partly in one county and partly in another, see §99-11-19.

Occurrence in one jurisdiction causing death in another, see §99-11-21.

Stolen property carried into state or carried from one county to another, see §99-11-23.

County in which motions may be made or a guilty plea entered with respect to criminal cases in circuit courts, see §99-15-24.

JUDICIAL DECISIONS

1. In general.

2. Proof of venue, generally.

3. —Judicial notice.

4. —Jurisdiction of circuit court.

5. —Jurisdiction of county court.

6. —Rebuttable presumption.

7. Raising question as to venue on appeal.

7. Transfer of venue.

1. In general.

A murder defendant was subject to jurisdiction in either the first or second judicial district of a county where the victim’s abduction began in the second judicial district while the slaying occurred in the first judicial district. Thorson v. State, 653 So. 2d 876, 1994 Miss. LEXIS 600 (Miss. 1994).

Venue for murder prosecution is proper in county in which body of victim is found. Hickson v. State, 472 So. 2d 379, 1985 Miss. LEXIS 2132 (Miss. 1985).

A convict charged with escaping and breaking prison must be indicted and tried in the county where the crime is alleged to have been committed, unless the venue is changed as provided by law, and if the alleged offense occurred in a county other than the one in which the state penitentiary is located an indictment returned in the county of the penitentiary’s situs must be quashed. Everitt v. Jack, 192 So. 2d 698, 1966 Miss. LEXIS 1266 (Miss. 1966).

In matters of criminal jurisdiction, each judicial district must be treated as a separate county. Passons v. State, 208 Miss. 545, 45 So. 2d 131, 1950 Miss. LEXIS 273 (Miss. 1950), overruled, Simmons v. State, 568 So. 2d 1192, 1990 Miss. LEXIS 605 (Miss. 1990).

In a county having two judicial districts an indictment for grand larceny must charge the district in which the crime was committed. Evans v. State, 144 Miss. 1, 108 So. 725, 1926 Miss. LEXIS 334 (Miss. 1926).

Laws 1910, ch. 141 [Code 1942, §§ 2420, 2421], seems to engraft an exception to this statute but does not violate Miss. Const. Art. 3, § 26. State v. Cunningham, 102 Miss. 237, 59 So. 76, 1912 Miss. LEXIS 49 (Miss. 1912).

A defendant must be indicted and tried in the judicial district of the county in which the offense was committed. Isabel v. State, 101 Miss. 371, 58 So. 1, 1912 Miss. LEXIS 2 (Miss. 1912).

Where an offense is committed and before any prosecution is begun a new county is created including the territory where the crime was enacted, jurisdiction can be properly exercised in the new county. Murrah v. State, 51 Miss. 675, 1875 Miss. LEXIS 94 (Miss. 1875).

2. Proof of venue, generally.

Indictment’s failure to charge venue was a facially apparent defect that petitioner waived by not objecting before trial. The indictment’s apparent venue defect did not void petitioner’s guilty plea because sufficient evidence established that the crime occurred in Lafayette County. Pegues v. State, 65 So.3d 351, 2011 Miss. App. LEXIS 364 (Miss. Ct. App. 2011).

In a case where defendant was pursued by an officer for speeding on the wrong side of the road, venue in that county was proper under Miss. Code Ann. §99-11-3(1), even though he was stopped in another county, because that was where the offense was first committed. Ouzts v. State, 947 So. 2d 1005, 2006 Miss. App. LEXIS 698 (Miss. Ct. App. 2006).

In defendant’s manslaughter case, venue was properly established because the evidence showed that defendant shot the victim on or near the Lobutcha Creek Bridge, near the Leake County-Attala County line, defendant placed her body in the trunk of his car, drove northward, and left her body in Attala County. McBride v. State, 934 So. 2d 1033, 2006 Miss. App. LEXIS 539 (Miss. Ct. App. 2006).

In a prosecution for murder by the defendant of her own infant, evidence was sufficient to establish venue where an officer testified that the defendant gave him a statement in which she indicated that she was returning from a certain city on a particular highway and had just passed a specific exit when her baby began to have trouble breathing; although it was a close call, a jury was properly permitted to disbelieve her statement for the purposes of determining guilt, while nevertheless using the statement as a basis for establishing venue. Hill v. State, 797 So. 2d 914, 2001 Miss. LEXIS 68 (Miss. 2001).

Evidence that the responding police officer was with the Clarksdale Police Department provided the necessary evidence of proper venue in Coahama County, especially where venue was not a contested fact at trial. Thomas v. State, 784 So. 2d 247, 2000 Miss. App. LEXIS 577 (Miss. Ct. App. 2000).

In a prosecution for “headlighting” deer, the evidence was sufficient to establish venue, even though there was insufficient evidence to establish venue in the State’s case-in-chief, where rebuttal testimony by the State sufficiently proved venue, and there was no surrebuttal by the defendant to the contrary. Smith v. State, 646 So. 2d 538, 1994 Miss. LEXIS 575 (Miss. 1994).

Venue of a crime can be proved by circumstantial evidence as well as direct evidence. Sanders v. State, 286 So. 2d 825, 1973 Miss. LEXIS 1325 (Miss. 1973).

The state failed to prove venue at a trial for assault and battery with intent to kill and murder, where it produced a record showing that the assault took place within a few feet of an automobile parked on a particular college campus, but did not show that the named college was located in a specific county or even within the state. Jackson v. State, 246 So. 2d 553, 1971 Miss. LEXIS 1422 (Miss. 1971).

In a criminal prosecution, venue is not proved by a witness who testifies that he guesses venue is in a certain named county. Turner v. State, 220 So. 2d 295, 1969 Miss. LEXIS 1449 (Miss.), cert. denied, 396 U.S. 834, 90 S. Ct. 92, 24 L. Ed. 2d 85, 1969 U.S. LEXIS 930 (U.S. 1969).

In a homicide prosecution, where a state’s witness testified that he guessed that the crime was committed in Jackson County and, after an objection by the defense counsel, stated positively that the crime occurred in Jackson County, and where this was the only evidence offered as to venue by the state, the correction was properly permitted and the evidence was sufficient to meet the burden placed on the state to establish venue. Turner v. State, 220 So. 2d 295, 1969 Miss. LEXIS 1449 (Miss.), cert. denied, 396 U.S. 834, 90 S. Ct. 92, 24 L. Ed. 2d 85, 1969 U.S. LEXIS 930 (U.S. 1969).

The affidavit for a search warrant and the search warrant are admissible to show only that the search was lawful, and do not constitute any proof of venue. Clark v. State, 230 Miss. 143, 92 So. 2d 452, 1957 Miss. LEXIS 354 (Miss. 1957).

This section [Code 1942, § 2419] eliminates the requirement that proof of venue be beyond a reasonable doubt in cases where there is a conflict in evidence as to which of the two or more counties or districts in Mississippi is the place of the offense, but it has no application where the question is whether or not the alleged criminal act was committed in Mississippi. Presley v. State, 217 Miss. 112, 63 So. 2d 551, 1953 Miss. LEXIS 415 (Miss. 1953).

Venue of crime was established as being in first judicial district of Jones County, Mississippi, by evidence showing that decedent was last seen alive by accused in Jones County, near the place where his body was found in same county, and that he had received a blow on head breaking skull, small fragments of which were lying on the ground. Poore v. State, 205 Miss. 528, 37 So. 2d 3, 1948 Miss. LEXIS 218 (Miss. 1948), cert. denied, 336 U.S. 922, 69 S. Ct. 656, 93 L. Ed. 1084, 1949 U.S. LEXIS 2670 (U.S. 1949).

Venue of crime may be shown by circumstantial evidence. Holloway v. State, 199 Miss. 356, 24 So. 2d 857, 1946 Miss. LEXIS 203 (Miss. 1946); Poore v. State, 205 Miss. 528, 37 So. 2d 3, 1948 Miss. LEXIS 218 (Miss. 1948), cert. denied, 336 U.S. 922, 69 S. Ct. 656, 93 L. Ed. 1084, 1949 U.S. LEXIS 2670 (U.S. 1949).

On proof of venue in the trial of a case even if the evidence leaves the venue in doubt the supreme court is precluded from reversing the case. Hill v. State, 112 Miss. 375, 73 So. 66, 1916 Miss. LEXIS 121 (Miss. 1916).

Under this section [Code 1942, § 2419] there must be proof where the offense was committed, if it is near the county line and the proof is doubtful as to which county it was committed in, the doubt will not avail to acquit the defendant. Isabel v. State, 101 Miss. 371, 58 So. 1, 1912 Miss. LEXIS 2 (Miss. 1912).

3. —Judicial notice.

In a driving under the influence case, the State established the court’s jurisdiction; although the arresting officer did not testify that the events occurred in the relevant city and county, there was direct and circumstantial evidence to show the crimes occurred there, and the court properly took judicial notice under Miss. R. Evid. 201(b) that the area where defendant was stopped was within the city. Russell v. State, 126 So.3d 145, 2013 Miss. App. LEXIS 786 (Miss. Ct. App. 2013).

Appellate court affirmed defendant’s conviction despite defendant’s claims that venue was never proved because the victim testified that the assaults occurred while defendant was living with the victim and her mother, all of the homes that they lived in during the relevant time, although in different cities, were within one specific county, venue of a criminal offense is in the county where the crime was committed, and the appellate court could take judicial notice on appeal that a certain city was located within a particular county. Hensley v. State, 912 So. 2d 1083, 2005 Miss. App. LEXIS 746 (Miss. Ct. App. 2005).

Judicial notice may be taken that a certain street is in a specific county, at least if the street has a sufficiently unusual name. Thomas v. State, 784 So. 2d 247, 2000 Miss. App. LEXIS 577 (Miss. Ct. App. 2000).

Venue was not established by the court taking judicial notice of the fact that the college at which the alleged assault took place was located in a particular county, for it is a dangerous practice to invoke the doctrine of judicial notice in criminal cases, and before judicial notice can be available as to matters of venue it must be a matter of such general or common knowledge that every man may know it. Jackson v. State, 246 So. 2d 553, 1971 Miss. LEXIS 1422 (Miss. 1971).

While the supreme court may take judicial notice that a town or city is in a certain county, it will not take judicial notice of the supervisor’s district in which a town or city is located. Clark v. State, 230 Miss. 143, 92 So. 2d 452, 1957 Miss. LEXIS 354 (Miss. 1957).

4. —Jurisdiction of circuit court.

Defendant’s convictions for capital murder during the commission of a robbery were proper because the State satisfactorily established venue in Forrest County since sufficient evidence was presented to allow the jury to conclude beyond a reasonable doubt that the crimes had taken place, at least in part, in Forrest County, Miss. Code Ann. §99-11-3(1). Gillett v. State, 56 So.3d 469, 2010 Miss. LEXIS 337 (Miss. 2010), cert. denied, 565 U.S. 1095, 132 S. Ct. 844, 181 L. Ed. 2d 552, 2011 U.S. LEXIS 8944 (U.S. 2011).

Where a county circuit court acquired authority to proceed against the defendant when the grand jury returned indictments charging the essential elements of a criminal offense committed in the county against the defendant and served those indictments upon him, such court maintained jurisdiction to accept the defendant’s guilty plea and impose an appropriate sentence. Edwards v. State, 749 So. 2d 291, 1999 Miss. App. LEXIS 555 (Miss. Ct. App. 1999).

When a criminal case originates in the justice of the peace court and is appealed to the circuit court for trial de novo, the circuit court does not have jurisdiction unless the proof shows that the offense was committed in the district where the case originated. Clark v. State, 230 Miss. 143, 92 So. 2d 452, 1957 Miss. LEXIS 354 (Miss. 1957).

Defendants were not entitled to a reversal of conviction on ground that evidence failed to show that circuit court of county had jurisdiction where offense was committed near county line but evidence was conflicting as to county in which offense was committed. Phillips v. State, 177 Miss. 370, 171 So. 24, 1936 Miss. LEXIS 275 (Miss. 1936).

5. —Jurisdiction of county court.

To confer jurisdiction on county court in misdemeanor case, state need only allege and prove crime was committed in county. Webb v. State, 158 Miss. 715, 131 So. 262, 1930 Miss. LEXIS 108 (Miss. 1930).

6. —Rebuttable presumption.

The fact that a victim was found dead in Newton County raised a rebuttable presumption that all or part of the homicide took place in Newton County, and, since the defendant failed to offer anything to rebut this presumption or make unreasonable the inference, such evidence was sufficient to undergird a finding that venue was proper in Newton County in accordance with §99-11-3. Fairchild v. State, 459 So. 2d 793, 1984 Miss. LEXIS 1983 (Miss. 1984).

7. Raising question as to venue on appeal.

Defendant’s convictions for attempting a burglary, arson, and a murder, were proper where venue was proper in the county where he attempted to burn the structure; venue was proper pursuant to U.S. Const. Art. III, § 2 cl. 3, U.S. Const. Amend. VI, and Miss. Const. Art. 3, § 26 because there was nothing conceptually outrageous or bizarre in bringing charges in the county for an attempt to burn a building in that county, Miss. Code Ann. §99-11-3(1). Holbrook v. State, 877 So. 2d 525, 2004 Miss. App. LEXIS 23 (Miss. Ct. App.), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 865 (Miss. 2004), cert. denied, 543 U.S. 1166, 125 S. Ct. 1340, 161 L. Ed. 2d 141, 2005 U.S. LEXIS 1746 (U.S. 2005).

Although defendant claimed on appeal that he was prosecuted in the wrong county, he raised this issue for the first time on appeal, having never done so at trial; moreover, the crime was possession of a controlled substance and the evidence was that he did not obtain it at the end of the chase, but surely possessed it at the beginning, at the end, and at every point in between, so that its discovery at the point where the chase ended did not dilute the inference that he must have possessed the substance when the chase began in Oktibbeha County, Mississippi. Burnett v. State, 876 So. 2d 409, 2003 Miss. App. LEXIS 1184 (Miss. Ct. App. 2003), cert. denied, 878 So. 2d 66, 2004 Miss. LEXIS 853 (Miss. 2004).

On an appeal from a conviction in a justice of peace court for the unlawful possession of intoxicating liquor, or other misdemeanors, the state must prove in what district of the county the offense occurred; and the question of whether or not venue was proved may be raised for the first time in the supreme court. Jones v. State, 230 Miss. 887, 94 So. 2d 234, 1957 Miss. LEXIS 436 (Miss. 1957), overruled, Mattox v. State, 243 Miss. 402, 137 So. 2d 920, 1962 Miss. LEXIS 356 (Miss. 1962).

When a criminal case originates in the justice of peace court and is appealed to the circuit court for trial de novo, the circuit court does not have jurisdiction unless the proof shows that the offense was committed in the district where the case originated, and this question of venue may be raised for the first time in the supreme court. Clark v. State, 230 Miss. 143, 92 So. 2d 452, 1957 Miss. LEXIS 354 (Miss. 1957).

Failure of the state in a criminal case to prove venue is jurisdictional error and the supreme court will reverse although the point may be for the first time raised in the supreme court. Kyle v. Calhoun City, 123 Miss. 542, 86 So. 340, 1920 Miss. LEXIS 55 (Miss. 1920).

In a criminal case venue is jurisdictional and must be proved and may be raised for the first time on appeal to the supreme court. Quillen v. State, 10 Miss. 2735a, 106 Miss. 831, 64 So. 736, 1914 Miss. LEXIS 24 (Miss. 1914); Norwood v. State, 129 Miss. 813, 93 So. 354, 1922 Miss. LEXIS 92 (Miss. 1922); Slaton v. State, 134 Miss. 419, 98 So. 838, 1924 Miss. LEXIS 264 (Miss. 1924); Sullivan v. State, 136 Miss. 773, 101 So. 683, 1924 Miss. LEXIS 162 (Miss. 1924); Sandifer v. State, 136 Miss. 836, 101 So. 862, 1924 Miss. LEXIS 190 (Miss. 1924); Pickle v. State, 137 Miss. 112, 102 So. 4, 1924 Miss. LEXIS 201 (Miss. 1924); Carpenter v. State, 102 So. 184 (Miss. 1924); Monroe v. State, 104 So. 451 (Miss. 1925); Griffin v. State, 140 Miss. 175, 105 So. 457, 1925 Miss. LEXIS 247 (Miss. 1925); Dorsey v. State, 141 Miss. 600, 106 So. 827, 1926 Miss. LEXIS 464 (Miss. 1926); Norris v. State, 143 Miss. 365, 108 So. 809, 1926 Miss. LEXIS 273 (Miss. 1926).

7. Transfer of venue.

After declaring a mistrial, the circuit judge erred in transferring venue to another county on its own motion over defendant’s objection because the transfer of venue in a criminal case required defendant’s sworn petition, but defendant made no such petition in the current case; thus, the case had to be remanded for trial in Yazoo County. Miles v. State, 204 So.3d 745, 2016 Miss. LEXIS 485 (Miss. 2016).

OPINIONS OF THE ATTORNEY GENERAL

Where alleged perjured testimony was given in Oktibbeha County, proper jurisdiction over the matter would lie in the Circuit Court of that county. Burns, Nov. 5, 2004, A.G. Op. 04-0544.

RESEARCH REFERENCES

ALR.

Venue of civil libel action against newspaper or periodical. 15 A.L.R.3d 1249.

Necessity of proving venue or territorial jurisdiction of criminal offense beyond reasonable doubt. 67 A.L.R.3d 988.

Am. Jur.

21 Am. Jur. 2d, Criminal Law §§ 431-434 et seq., 461 et seq.

CJS.

22 C.J.S., Criminal Law §§ 218 et seq.

Cross References —

How far counties on Mississippi River extend, see §3-3-5.

JUDICIAL DECISIONS

1. In general.

This section [Code 1942, § 2420] does not give Mississippi the power to enforce the laws of Arkansas. State v. Cunningham, 102 Miss. 237, 59 So. 76, 1912 Miss. LEXIS 49 (Miss. 1912).

RESEARCH REFERENCES

Am. Jur.

21 Am. Jur. 2d, Criminal Law § 344.

CJS.

22 C.J.S., Criminal Law §§ 141 et seq.

Cross References —

How far counties on Mississippi River extend, see §3-3-5.

RESEARCH REFERENCES

Am. Jur.

21 Am. Jur. 2d, Criminal Law § 454.

CJS.

22 C.J.S., Criminal Law §§ 141 et seq.

Cross References —

Uniform law on paternity, see §§93-9-1 et seq.

Person becoming natural parent of second illegitimate child guilty of misdemeanor, see §97-29-11.

Cross References —

Criminal offense of embezzlement, see §§97-23-19 et seq.

RESEARCH REFERENCES

ALR.

Where is embezzlement committed for purposes of territorial jurisdiction or venue. 80 A.L.R.3d 514.

Am. Jur.

21 Am. Jur. 2d, Criminal Law §§ 461 et seq.

26 Am. Jur. 2d, Embezzlement § 62.

Cross References —

Criminal offense of kidnapping, see §§97-3-51 et seq.

JUDICIAL DECISIONS

1. In general.

The venue of a kidnapping and rape trial was proper in the county in which the kidnapping and violence leading to the rape commenced, and in which the defense counsel admitted that the first contact between the defendant and the victim, which was determined by the jury to have been a kidnapping, took place. Erwin v. State, 557 So. 2d 799, 1990 Miss. LEXIS 57 (Miss. 1990), but see Strahan v. State, 729 So. 2d 800, 1998 Miss. LEXIS 343 (Miss. 1998).

RESEARCH REFERENCES

Am. Jur.

1 Am. Jur. 2d, Abduction and Kidnapping §§ 42, 43.

21 Am. Jur. 2d, Criminal Law §§ 461 et seq.

JUDICIAL DECISIONS

1. In general.

Venue was proper although state had offered no proof beyond reasonable doubt that sale or transfer of marijuana was contemplated in Alcorn County, because the gist of the crime was possession and prosecution was not required to prove specific place where defendant intended to sell or transfer contraband, and because §§99-11-15 and99-11-17, while not directly applicable, clearly showed intent of legislature to allow Mississippi Court to prosecute criminal acts that occur in state but which did not begin or were not intended to end in state. Boches v. State, 506 So. 2d 254, 1987 Miss. LEXIS 2496 (Miss. 1987).

RESEARCH REFERENCES

Am. Jur.

21 Am. Jur. 2d, Criminal Law §§ 489, 490.

CJS.

22 C.J.S., Criminal Law §§ 443, 444.

JUDICIAL DECISIONS

1. In general.

Venue was proper although state had offered no proof beyond reasonable doubt that sale or transfer of marijuana was contemplated in Alcorn County, because the gist of the crime was possession and prosecution was not required to prove specific place where defendant intended to sell or transfer contraband, and because §99-11-15 and this section, while not directly applicable, clearly showed intent of legislature to allow Mississippi Court to prosecute criminal acts that occur in state but which did not begin or were not intended to end in state. Boches v. State, 506 So. 2d 254, 1987 Miss. LEXIS 2496 (Miss. 1987).

Mississippi had jurisdiction pursuant to this section over action charging murder committed during commission of kidnapping, even though actual murder took place in Alabama, since crime of capital murder was commenced in Mississippi where defendant forcibly abducted victim and there was no break in chain of events leading from initial abduction to the actual murder. Pruett v. Thigpen, 665 F. Supp. 1254, 1986 U.S. Dist. LEXIS 27844 (S.D. Miss. 1986).

Where an offense under this section [Code 1942, § 2428] was commenced within this state and consummated out of this state, the defendant may be indicted and tried in the county in this state in which the offense was commenced. Richberger v. State, 90 Miss. 806, 44 So. 772, 1907 Miss. LEXIS 122 (Miss. 1907).

Cashier embezzling funds of state bank on deposit in bank of another state was indictable in this state. Richberger v. State, 90 Miss. 806, 44 So. 772, 1907 Miss. LEXIS 122 (Miss. 1907).

RESEARCH REFERENCES

Am. Jur.

21 Am. Jur. 2d, Criminal Law §§ 443, 444.

CJS.

22 C.J.S., Criminal Law §§ 224, 225.

Cross References —

Application of this section to aircraft piracy cases, see §97-25-55.

Occurrence in one jurisdiction causing death in another, see §99-11-21.

Stolen property carried into state or carried from one county to another-where offender may be indicted and tried, see §99-11-23.

JUDICIAL DECISIONS

1. In general.

2. Jurisdiction of court in which prosecution first begun.

1. In general.

Defendant’s convictions for capital murder during the commission of a robbery were proper because the State satisfactorily established venue in Forrest County since sufficient evidence was presented to allow the jury to conclude beyond a reasonable doubt that the crimes had taken place, at least in part, in Forrest County. Gillett v. State, 56 So.3d 469, 2010 Miss. LEXIS 337 (Miss. 2010), cert. denied, 565 U.S. 1095, 132 S. Ct. 844, 181 L. Ed. 2d 552, 2011 U.S. LEXIS 8944 (U.S. 2011).

Post-conviction relief was denied based on a venue challenge because at least part of the offense of statutory rape occurred in a county where defendant picked his victim up before having intercourse in another county, pursuant to Miss. Code Ann. §99-11-19; moreover, defendant chose to enter a plea after being informed of a discrepancy regarding the issue of venue. Plummer v. State, 966 So. 2d 186, 2007 Miss. App. LEXIS 166 (Miss. Ct. App. 2007).

Although defendant claimed on appeal that he was prosecuted in the wrong county, he raised this issue for the first time on appeal, having never done so at trial; moreover, the crime was possession of a controlled substance and the evidence was that he did not obtain it at the end of the chase, but surely possessed it at the beginning, at the end, and at every point in between, so that its discovery at the point where the chase ended did not dilute the inference that he must have possessed the substance when the chase began in Oktibbeha County, Mississippi. Burnett v. State, 876 So. 2d 409, 2003 Miss. App. LEXIS 1184 (Miss. Ct. App. 2003), cert. denied, 878 So. 2d 66, 2004 Miss. LEXIS 853 (Miss. 2004).

In a prosecution for conspiracy to possess morphine and to commit grand larceny, possession of morphine, and aggravated assault, where testimony showed that defendants conspired to steal morphine in one county, and that their assault victim was found unconscious and injured in a second county, the evidence was sufficient to establish jurisdiction in the second county. Stubbs v. State, 845 So. 2d 656, 2003 Miss. LEXIS 115 (Miss. 2003).

The state properly elected a county as the venue in which to prosecute the defendant for murder in the course of kidnapping where it chose the county in which the victim was seen entering the defendant’s truck, rather than the county in which the victim was killed. Hughes v. State, 735 So. 2d 238, 1999 Miss. LEXIS 131 (Miss. 1999), cert. denied, 528 U.S. 1083, 120 S. Ct. 807, 145 L. Ed. 2d 680, 2000 U.S. LEXIS 242 (U.S. 2000), in part, 2011 Miss. LEXIS 50 (Miss. Jan. 20, 2011).

A murder defendant was subject to jurisdiction in either the first or second judicial district of a county where the victim’s abduction began in the second judicial district while the slaying occurred in the first judicial district. Thorson v. State, 653 So. 2d 876, 1994 Miss. LEXIS 600 (Miss. 1994).

Where the defendant in a rape prosecution gave the victim a pill which produced dizziness and a stupor that rendered the victim unable to resist the defendant’s assault, the administering of the pill to the victim was an essential element of the crime alleged, and where the administration of the pill occurred in Forrest County, while the actual rape took place in Lamar County, the venue was properly laid in Forrest County. McKorkle v. State, 305 So. 2d 361, 1974 Miss. LEXIS 1485 (Miss. 1974).

Venue of a bribery prosecution is in the county in which an offer was made and the amount of the bribe tendered to an intermediary, though the offer was originally made to the intermediary in another county, and there communicated to the officer sought to be bribed. McLemore v. State, 241 Miss. 664, 126 So. 2d 236, 1961 Miss. LEXIS 384 (Miss.), cert. denied, 368 U.S. 70, 82 S. Ct. 197, 7 L. Ed. 2d 133, 1961 U.S. LEXIS 137 (U.S. 1961).

Second judicial district of Hinds County was proper venue for prosecution for robbery when accused stopped truck, carrying bootleg liquor, in Claiborne County, forced driver of truck to turn over truck to one of defendants and occupy car with other defendant, which car followed truck, keeping within sight of it, until truck reached second judicial district of Hinds County where truck was driven beyond sight of its owner, unloaded, and later returned to him. Passons v. State, 208 Miss. 545, 45 So. 2d 131, 1950 Miss. LEXIS 273 (Miss. 1950), overruled, Simmons v. State, 568 So. 2d 1192, 1990 Miss. LEXIS 605 (Miss. 1990).

Venue of prosecution for uttering forged teacher’s license held properly laid in county where license was mailed by accused, notwithstanding license was received in another county where contract was consummated by correspondence originating in county from which license was mailed. Bradford v. State, 171 Miss. 8, 156 So. 655, 1934 Miss. LEXIS 200 (Miss. 1934).

Accessory before fact to robbery is indictable and punishable as principal in county wherein robbery was consummated, though not in such county at time. Watson v. State, 166 Miss. 194, 146 So. 122, 1933 Miss. LEXIS 335 (Miss. 1933).

Where a crime is composed of several elements, and a material one exists in either of two counties, the courts of either county may take jurisdiction of the entire crime. Murray v. State, 98 Miss. 594, 54 So. 72, 1910 Miss. LEXIS 97 (Miss. 1910).

Venue of prosecution of the crime of false pretense in selling cotton raised in one county and sold in another under false pretenses was in county where sale occurred. Murray v. State, 98 Miss. 594, 54 So. 72, 1910 Miss. LEXIS 97 (Miss. 1910).

2. Jurisdiction of court in which prosecution first begun.

Jury could have reasonably found that the killing took place in the county where defendant’s trial was held because the victim’s body was found in a pond in that county, and defendant did not claim, and there was no evidence in the record, that the body had been relocated from a pond in another county to the pond in the instant county. Weaver v. State, 265 So.3d 182, 2018 Miss. App. LEXIS 467 (Miss. Ct. App. 2018), cert. denied, 263 So.3d 666, 2019 Miss. LEXIS 89 (Miss. 2019).

Dismissal of the inmate’s motion for post-conviction relief without a hearing was appropriate under Miss. Code Ann. §99-11-19 because jurisdiction was proper in Alcorn county even though the victim’s ultimate death might not have occurred there; the commission of his crimes began in that county. Moss v. State, 940 So. 2d 949, 2006 Miss. App. LEXIS 536 (Miss. Ct. App. 2006).

Defendant’s convictions for kidnapping and sexual battery were proper where jurisdiction in the circuit court was appropriate pursuant to Miss. Code Ann. §99-11-19 because the circuit court was in the county from which the victim was kidnapped. Winding v. State, 908 So. 2d 163, 2005 Miss. App. LEXIS 332 (Miss. Ct. App. 2005).

In a prosecution for touching a child for lustful purposes in which it was not clear whether the crime was committed in one or the other of two judicial districts of a county, venue was properly set in the judicial district in which the automobile trip during which the crime was committed was commenced; the statute permitted a conviction in either judicial district of the county since, if the crime occurred, it was committed in one of those two districts. McGowan v. State, 742 So. 2d 1183, 1999 Miss. App. LEXIS 334 (Miss. Ct. App. 1999).

If one accused of murder is indicted in the county where the death occurred, he can afterward be indicted in another county where the fatal blow was struck, provided the first indictment had been dismissed. Simmons v. State, 568 So. 2d 1192, 1990 Miss. LEXIS 605 (Miss. 1990).

The venue of a kidnapping and rape trial was proper in the county in which the kidnapping and violence leading to the rape commenced, and in which the defense counsel admitted that the first contact between the defendant and the victim, which was determined by the jury to have been a kidnapping, took place. Erwin v. State, 557 So. 2d 799, 1990 Miss. LEXIS 57 (Miss. 1990), but see Strahan v. State, 729 So. 2d 800, 1998 Miss. LEXIS 343 (Miss. 1998).

Embezzlement of some pulp wood was partly committed in the county where prosecution was commenced, and venue there was proper, where the truck carrying the embezzled wood was loaded in the county and, while it was still there, the defendant gave an order to the driver as to where to deliver it. Bass v. State, 328 So. 2d 665, 1976 Miss. LEXIS 1812 (Miss. 1976).

Where the promise of marriage occurred in Forrest County and the act of intercourse occurred in Jones County, since both of these acts constituted essential elements of the offense of seduction, the jurisdiction thereof was governed by this section [Code 1942, § 2429], and it being proper to begin prosecution in either county, the circuit court of Forrest County had jurisdiction. Aldridge v. State, 232 Miss. 368, 99 So. 2d 456, 1958 Miss. LEXIS 283 (Miss. 1958).

Preliminary proceeding in robbery prosecution did not constitute beginning of prosecution in first district of Hinds County, within meaning of this section [Code 1942, § 2429] when county attorney presented information in county court, caption of which contained words: “County Court July Term A.D. 1948, First Judicial District, Hinds County,” but which averred county attorney was informed and charged offense was committed in Hinds County, and order of county judge binding defendants over to await action of grand jury of second judicial district contained statement “court being advised in the premises,” as it must be presumed court inquired into matter and was satisfied offense was committed in second district. Passons v. State, 208 Miss. 545, 45 So. 2d 131, 1950 Miss. LEXIS 273 (Miss. 1950), overruled, Simmons v. State, 568 So. 2d 1192, 1990 Miss. LEXIS 605 (Miss. 1990).

Where fatal blow occurred in Tennessee and deceased died in Mississippi, Mississippi court had jurisdiction of murder prosecution though assault prosecution had been previously instituted in Tennessee, since statute did not refer to interstate crimes. Caldwell v. State, 176 Miss. 80, 167 So. 779, 1936 Miss. LEXIS 114 (Miss. 1936).

Where crime committed partly in one county and partly in another of this state, the proper court of either county has jurisdiction thereof and the one in which prosecution is first begun has full and complete jurisdiction thereof. Atkinson v. State, 132 Miss. 377, 96 So. 310, 1923 Miss. LEXIS 55 (Miss. 1923), overruled, Simmons v. State, 568 So. 2d 1192, 1990 Miss. LEXIS 605 (Miss. 1990).

RESEARCH REFERENCES

ALR.

Construction and effect of statutes providing for venue of criminal case in either county, where crime is committed partly in one county and partly in another. 30 A.L.R.2d 1265.

Venue in homicide cases where crime is committed partly in one county and partly in another. 73 A.L.R.3d 907.

Venue in rape cases where crime is committed partly in one place and partly in another. 100 A.L.R.3d 1174.

Venue in bribery cases where crime is committed partly in one county and partly in another. 11 A.L.R.4th 704.

Am. Jur.

21 Am. Jur. 2d, Criminal Law §§ 452 et seq.

Cross References —

Offenses committed partly in one county and partly in another, see §99-11-19.

JUDICIAL DECISIONS

1. In general.

In defendant’s manslaughter case, venue was properly established because the evidence showed that defendant shot the victim on or near the Lobutcha Creek Bridge, near the Leake County-Attala County line, defendant placed her body in the trunk of his car, drove northward, and left her body in Attala County. McBride v. State, 934 So. 2d 1033, 2006 Miss. App. LEXIS 539 (Miss. Ct. App. 2006).

There is no constitutional objection to Code 1942, § 2430 extending the jurisdiction of Mississippi to embrace a prosecution for murder based on injuries inflicted without the state where the death occurs within the state, and, further, the provisions of such section, coupled with the presumption that a person was killed in the state and county where the body was found, operates to minimize the possibility of one escaping punishment for murder because he is clever enough to conceal the place where the victim was killed or died. State v. Fabian, 263 So. 2d 773, 1972 Miss. LEXIS 1346 (Miss. 1972).

Where mortal blows were struck in one county and the deceased died in another county, the offender may be indicted in the second county. Butler v. State, 217 Miss. 750, 65 So. 2d 244, 1953 Miss. LEXIS 490 (Miss. 1953).

In murder prosecution brought in county of victim’s death, exclusion of oral evidence raising question for first time that prior prosecution had been begun in county in which blows were inflicted, held not error, since mere oral testimony unsupported by record of former prosecution was not competent. Durr v. State, 175 Miss. 797, 168 So. 65, 1936 Miss. LEXIS 77 (Miss. 1936).

In murder prosecution, where defendant was prosecuted in county of victim’s death and not county where blows were inflicted, question of jurisdiction arising from claim that prosecution had been first begun in county in which blows were inflicted held for court. Durr v. State, 175 Miss. 797, 168 So. 65, 1936 Miss. LEXIS 77 (Miss. 1936).

Statute providing for venue in county in which death happens where mortal stroke or cause of death occurs in another state or country and death happens in Mississippi held not unconstitutional. Caldwell v. State, 176 Miss. 80, 167 So. 779, 1936 Miss. LEXIS 114 (Miss. 1936).

In murder prosecution, proof that deceased died in county of prosecution held sufficient proof of venue. Jones v. State, 154 Miss. 640, 122 So. 760, 1929 Miss. LEXIS 170 (Miss. 1929).

This section [Code 1942, § 2430] is not violative of § 26, of the state constitution. Atkinson v. State, 132 Miss. 377, 96 So. 310, 1923 Miss. LEXIS 55 (Miss. 1923), overruled, Simmons v. State, 568 So. 2d 1192, 1990 Miss. LEXIS 605 (Miss. 1990).

Under this section [Code 1942, § 2430] where an indictment for murder charges that the crime was committed in the county in which the indictment is preferred, evidence is admissible that the death occurred in another county if the fatal blow was struck in the county in which the indictment is found. Coleman v. State, 83 Miss. 290, 35 So. 937, 1903 Miss. LEXIS 43 (Miss. 1903), overruled, Simmons v. State, 568 So. 2d 1192, 1990 Miss. LEXIS 605 (Miss. 1990).

RESEARCH REFERENCES

ALR.

Venue in homicide cases where crime is committed partly in one county and partly in another. 73 A.L.R.3d 907.

Venue in rape cases where crime is committed partly in one place and partly in another. 100 A.L.R.3d 1174.

Am. Jur.

21 Am. Jur. 2d, Criminal Law § 471.

40 Am. Jur. 2d, Homicide §§ 191 et seq.

CJS.

22 C.J.S., Criminal Law §§ 224, 225.

Cross References —

Offenses committed partly in one county and partly in another, see §99-11-19.

JUDICIAL DECISIONS

1. Generally.

2. Property stolen in another state.

3. Property stolen in another county.

1. Generally.

An indictment under this section [Code 1942, § 2431] properly avers that larceny took place in the county where accused is found possessing stolen property, if he is to be tried there. Coggins v. State, 234 Miss. 369, 106 So. 2d 388, 1958 Miss. LEXIS 505 (Miss. 1958).

Every moment’s possession by accused after the property was stolen amounted to a new asportation. Coggins v. State, 234 Miss. 369, 106 So. 2d 388, 1958 Miss. LEXIS 505 (Miss. 1958).

2. Property stolen in another state.

Where property involved was stolen in Illinois, where defendant received it, venue to try defendant lay in Leflore County, since the crime of receiving stolen property was, under Code 1942, § 2431, committed in Leflore County when he brought the stolen property into that county. Brown v. State, 281 So. 2d 924, 1973 Miss. LEXIS 1501, 1973 Miss. LEXIS 1502 (Miss. 1973).

Fact that a car in which the defendant was riding was stopped by officers in Jackson County, Mississippi and money orders stolen from a post office in Louisiana were found therein gave jurisdiction to the circuit court of Jackson County under this section [Code 1942, § 2431]. Chavers v. State, 215 So. 2d 880, 1968 Miss. LEXIS 1385 (Miss. 1968).

Where accused had allegedly stolen property in another state and transported it into Mississippi, the indictment must aver the larceny took place in the county where accused is found possessing it, if he is to be tried there. Coggins v. State, 234 Miss. 369, 106 So. 2d 388, 1958 Miss. LEXIS 505 (Miss. 1958).

In a prosecution for larceny of property in another state and brought into Mississippi, conviction was supported on evidence that accused was in the apartment where the property was located at time the owner left for work, and when the owner returned neither accused nor property was there, possession of the property by accused two days later hundreds of miles away, together with accused’s explanation of the admitted taking of the property, which explanation was neither reasonable nor credible. Coggins v. State, 234 Miss. 369, 106 So. 2d 388, 1958 Miss. LEXIS 505 (Miss. 1958).

One stealing hogs in another state, and after butchering them there bringing meat into this state, may be indicted here for larceny of meat. Rainwater v. State, 155 Miss. 684, 124 So. 801, 1929 Miss. LEXIS 335 (Miss. 1929).

Every moment’s continuance of the original trespass amounts to a new caption and asportation, and hence if the goods be stolen in another state and brought here, the defendant can be convicted under an indictment averring the larceny to have been committed in the county in which the indictment was found, and evidence of the acts and declarations of the accused in the other state is admissible to show the character of his possession in this state. Watson v. State, 36 Miss. 593, 1859 Miss. LEXIS 72 (Miss. 1859).

3. Property stolen in another county.

Where stolen property is carried into another county without the person by whom it was stolen being in any way a party thereto, trial of such person for larceny in such county is a violation of the constitutional provisions requiring prosecution for crime to be conducted in the county where the offense was committed. Woods v. State, 190 Miss. 28, 198 So. 882, 1940 Miss. LEXIS 184 (Miss. 1940).

Where the evidence warranted a finding that the defendant stole a cow in Carroll County and there sold it to another who sent it in to LeFlore County where it was found by its owner, defendant having no further control over or connection with the cow after its sale and having nothing to do with its being carried into LeFlore County, his trial and conviction in the latter county was erroneous. Woods v. State, 190 Miss. 28, 198 So. 882, 1940 Miss. LEXIS 184 (Miss. 1940).

Although theft of property occurred in another county, court of county in which stolen property was discovered could exercise jurisdiction of prosecution. Patterson v. State, 171 Miss. 1, 156 So. 595, 1934 Miss. LEXIS 191 (Miss. 1934).

Conviction in county of theft is bar to prosecution in county to which stolen property was taken. State v. Hilton, 144 Miss. 690, 110 So. 434, 1926 Miss. LEXIS 404 (Miss. 1926).

Where property is stolen in one county and carried into another, an indictment in the latter must aver the larceny as if it originated there. Johnson v. State, 47 Miss. 671, 1873 Miss. LEXIS 20 (Miss. 1873); Slaydon v. State, 243 Miss. 644, 139 So. 2d 665, 1962 Miss. LEXIS 389 (Miss. 1962).

RESEARCH REFERENCES

Am. Jur.

21 Am. Jur. 2d, Criminal Law §§ 452 et seq.

CJS.

22 C.J.S., Criminal Law § 223.

RESEARCH REFERENCES

Am. Jur.

21 Am. Jur. 2d, Criminal Law §§ 443, 444.

Cross References —

Constitutional provision on double jeopardy, see Miss. Const. Art. 3, § 22.

JUDICIAL DECISIONS

1. In general.

2. Applicability.

1. In general.

The statute did not apply when the prior conviction was for a federal offense. Evans v. State, 725 So. 2d 613, 1997 Miss. LEXIS 389 (Miss. 1997), cert. denied, 525 U.S. 1133, 119 S. Ct. 1097, 143 L. Ed. 2d 34, 1999 U.S. LEXIS 1510 (U.S. 1999).

2. Applicability.

This section does not apply to federal convictions. Campbell v. State, 743 So. 2d 1050, 1999 Miss. App. LEXIS 317 (Miss. Ct. App. 1999).

RESEARCH REFERENCES

ALR.

Plea of guilty as basis of claim of double jeopardy in attempted subsequent prosecution for same offense. 75 A.L.R.2d 683.

Conviction or acquittal of one offense, in court having no jurisdiction to try offense arising out of same set of facts, later charged in another court, as putting accused in jeopardy of latter offense. 4 A.L.R.3d 874.

Subsequent trial, after stopping former trial to try accused for greater offense, as constituting double jeopardy. 6 A.L.R.3d 905.

Conviction or acquittal in federal court as bar to prosecution in state court for state offense based on same facts-modern view. 6 A.L.R.4th 802.

Former testimony used at subsequent trial as subject to ordinary objections and exceptions. 40 A.L.R.4th 514.

Conviction or acquittal in federal court as bar to prosecution in state court for state offense based on same facts – Modern view. 97 A.L.R.5th 201.

Acquittal or conviction in state court as bar to federal prosecution based on same act or transaction. 18 A.L.R. Fed. 393.

Am. Jur.

21 Am. Jur. 2d, Criminal Law §§ 321 et seq.

41 Am. Jur. Trials 383, Habeas Corpus: Pretrial Motions (double jeopardy).

Lawyers’ Edition.

Limitations under double jeopardy clause of Fifth Amendment upon state criminal prosecutions. 25 L. Ed. 2d 968.

Cross References —

Constitutional provisions on double jeopardy, see Miss. Const. Art. 3, § 22 and U.S. Const. Amend. V.

JUDICIAL DECISIONS

1. In general.

1. In general.

1. In general.

1. In general.

Defendant’s right against being subjected to double jeopardy was not violated when the State was given a second opportunity to prove that he was a habitual offender because his first indictment was not set aside because the indictment erroneously alleged that he was a habitual offender as his first capital-murder indictment was set aside because that indictment failed to allege the crime constituting the burglary, which was the predicate crime for the capital-murder charge; and defendant was at the time of both the first and second indictments a habitual offender. Clark v. State, 233 So.3d 832, 2017 Miss. App. LEXIS 129 (Miss. Ct. App.), cert. denied, — So.3d —, 2017 Miss. LEXIS 518 (Miss. 2017).

Defendant’s right against being subjected to double jeopardy was not violated when he was tried, convicted, and sentenced a second time for the victim’s murder because the Double Jeopardy Clause did not preclude defendant’s second trial after his first prosecution was dismissed due to insufficiency of the indictment. Clark v. State, 233 So.3d 832, 2017 Miss. App. LEXIS 129 (Miss. Ct. App.), cert. denied, — So.3d —, 2017 Miss. LEXIS 518 (Miss. 2017).

In prosecution for attempted burglary of business dwelling, double jeopardy clause of United States and Mississippi Constitutions was not violated by retrial of defendant following order quashing indictment due to its insufficiency and failure to charge crime, since defendant was neither acquitted nor convicted, having successfully persuaded trial court not to submit issue of guilt or innocence to jury empaneled to try him. City of Jackson v. Keane, 502 So. 2d 1185, 1987 Miss. LEXIS 2676 (Miss. 1987).

Where the order of the court was a nolle prosequi the defendant may be reindicted, or he may be tried upon an indictment charging him with another offense actually committed but for which he was not tried. State v. Thornhill, 251 Miss. 718, 171 So. 2d 308, 1965 Miss. LEXIS 896 (Miss. 1965).

Where a conviction on a charge of grand larceny was reversed by the supreme court, that court, instead of rendering a final judgment, remanded the case to enable the trial judge, if he should think proper, to act upon the statutory authority given him where a defendant is acquitted on the ground of variance between the indictment and proof. Alford v. State, 193 Miss. 153, 8 So. 2d 508, 1942 Miss. LEXIS 112 (Miss. 1942).

Where the proof in a grand larceny prosecution showed that the stolen cattle were taken in Tallahatchie County and were taken from the possession of the defendants in Coahoma County, without having passed through Grenada County, in which the indictment alleged the offense to have been committed, the trial court should have sustained defendant’s motion that venue was not proved in Grenada County; and the supreme court would render the judgment which the court below should have rendered by discharging the defendants from the present indictment, but holding them under their appearance bond to await the action of the next grand jury of the appropriate county. Whitten v. State, 189 Miss. 809, 199 So. 74, 1940 Miss. LEXIS 167 (Miss. 1940).

Where affidavit charged petit larceny, but proof showed offense under statute respecting larceny in severing fixtures, peremptory instruction should have been granted and accused held under bond for further proceedings. O'Neal v. State, 166 Miss. 538, 146 So. 634, 1933 Miss. LEXIS 353 (Miss. 1933).

An acquittal in a trial under an indictment charging an offense against a daughter when the proof disclosed that it was a stepdaughter, does not bar a subsequent prosecution for the offense against the stepdaughter. Sims v. State, 66 Miss. 33, 5 So. 525, 1888 Miss. LEXIS 54 (Miss. 1888).

RESEARCH REFERENCES

ALR.

What constitutes accused’s consent to court’s discharge of jury or to grant of state’s motion for mistrial which will constitute waiver of former jeopardy plea. 63 A.L.R.2d 782.

Former jeopardy: Propriety of trial court’s declaration of mistrial or discharge of jury, without accused’s consent, on ground of prosecution’s disclosure of prejudicial matter to, or making prejudicial remarks in presence of jury. 77 A.L.R.3d 1143.

Am. Jur.

41 Am. Jur. Trials 383, Habeas Corpus: Pretrial Motions (double jeopardy).

Cross References —

Constitutional provisions on double jeopardy, see Miss Const Art. 3, § 22, and U.S. Const., Amend. V.

JUDICIAL DECISIONS

1. In general.

2. Former jeopardy.

3. Acquittal as precluding trial of different charge predicated on same act, or act done at same time.

4. Violation of statute and ordinance by same act.

5. Miscellaneous.

1. In general.

Where the defendant has been acquitted upon the merits of his case by reason of a directed verdict, such acquittal is a bar to any future accusation for the same offense, and an appeal does not subject the defendant to further prosecution. State v. Thornhill, 251 Miss. 718, 171 So. 2d 308, 1965 Miss. LEXIS 896 (Miss. 1965).

Defense of former acquittal or conviction must be pleaded by the defendant before evidence thereof will be admitted. Tanner v. State, 196 Miss. 822, 18 So. 2d 300, 1944 Miss. LEXIS 260 (Miss. 1944).

A collusive acquittal will not bar a subsequent prosecution. Price v. State, 104 Miss. 288, 61 So. 314, 1913 Miss. LEXIS 31 (Miss. 1913).

An indictment dismissed by a nolle prosequi is not a bar to another indictment for the same crime. State v. Kennedy, 96 Miss. 624, 50 So. 978, 1910 Miss. LEXIS 150 (Miss. 1910).

A conviction or acquittal on any charge without an affidavit or indictment charging the offense is no bar to subsequent prosecution for the same offense. Woodson v. State, 94 Miss. 370, 48 So. 295, 1908 Miss. LEXIS 43 (Miss. 1908).

The offenses must be identical. Smith v. State, 67 Miss. 116, 7 So. 208, 1889 Miss. LEXIS 35 (Miss. 1889).

An acquittal or conviction in a court without jurisdiction is not a bar to a subsequent prosecution. Montross v. State, 61 Miss. 429, 1883 Miss. LEXIS 154 (Miss. 1883).

A conviction or acquittal without an affidavit or charge is no bar to subsequent prosecution. Bigham v. State, 59 Miss. 529, 1882 Miss. LEXIS 151 (Miss. 1882); Wilcox v. Williamson, 61 Miss. 310, 1883 Miss. LEXIS 127 (Miss. 1883).

A conviction or acquittal on an invalid indictment is no bar to a second prosecution. Hurt v. State, 25 Miss. 378, 1853 Miss. LEXIS 3 (Miss. 1853); Kohlheimer v. State, 39 Miss. 548, 1860 Miss. LEXIS 87 (Miss. 1860).

2. Former jeopardy.

One acquitted of violating Code 1942, § 1198, the general statute penalizing adultery and fornication, is not twice in jeopardy by being charged under Code 1942, § 2000. Ratcliff v. State, 234 Miss. 724, 107 So. 2d 728, 1958 Miss. LEXIS 542 (Miss. 1958).

An instance where a plea of former jeopardy is held good on a charge of unlawfully selling liquors. King v. State, 99 Miss. 23, 54 So. 657, 1910 Miss. LEXIS 6 (Miss. 1910); Williams v. State, 102 Miss. 274, 59 So. 87, 1912 Miss. LEXIS 52 (Miss. 1912).

An instance where a plea of former jeopardy is held good on a charge of unlawfully selling liquors. King v. State, 99 Miss. 23, 54 So. 657, 1910 Miss. LEXIS 6 (Miss. 1910); Williams v. State, 102 Miss. 274, 59 So. 87, 1912 Miss. LEXIS 52 (Miss. 1912).

Under the section [Code 1942, § 2434] a prisoner is not entitled to a discharge because after the introduction of evidence one of the jurors was reminded that he had been upon the grand jury which found the indictment, and, making the fact known, was discharged by the court. Roberts v. State, 72 Miss. 728, 18 So. 481, 1895 Miss. LEXIS 64 (Miss. 1895).

3. Acquittal as precluding trial of different charge predicated on same act, or act done at same time.

Failure of defendant in robbery prosecution to plead former acquittal barred introduction of evidence that he formerly had been acquitted of assault and battery with intent to kill and murder, and that the indictment in the present case was based on the same evidence as that in the former case. Tanner v. State, 196 Miss. 822, 18 So. 2d 300, 1944 Miss. LEXIS 260 (Miss. 1944).

Where proof was sufficient to support conviction for robbery, conviction of grand larceny would bar future prosecution for robbery based on same facts. Dixon v. State, 169 Miss. 876, 154 So. 290, 1934 Miss. LEXIS 85 (Miss. 1934).

Failure to support one’s family is a different offense from that of abandonment of wife and child. McRae v. State, 104 Miss. 861, 61 So. 977, 1913 Miss. LEXIS 90 (Miss. 1913).

A prosecution for converting funds in the hands of an officer is barred by a former conviction of the officer under a charge of failure to account for said money. McInnis v. State, 97 Miss. 280, 52 So. 634, 1910 Miss. LEXIS 258 (Miss. 1910).

“Balance of Account” in an indictment for embezzlement is a bar to a prosecution for embezzling a particular item of the account, where the accused had been acquitted under the first prosecution. State v. Caston, 96 Miss. 183, 50 So. 569, 1909 Miss. LEXIS 38 (Miss. 1909).

An acquittal on a charge of selling liquor does not bar a prosecution for conniving at a sale founded on the same facts. Carroll v. State, 80 Miss. 349, 31 So. 742, 1902 Miss. LEXIS 245 (Miss. 1902).

An acquittal under an indictment for assault and battery with intent to kill and murder does not bar a prosecution predicated on the same acts under a charge of aiming and discharging firearms at another. Richardson v. State, 79 Miss. 289, 30 So. 650, 1901 Miss. LEXIS 50 (Miss. 1901).

A conviction on a charge of drunkenness does not bar a prosecution for disturbing public worship at the same time and place, where the disturbance was by other means than drunkenness. Smith v. State, 67 Miss. 116, 7 So. 208, 1889 Miss. LEXIS 35 (Miss. 1889); Ball v. State, 67 Miss. 358, 7 So. 353, 1889 Miss. LEXIS 91 (Miss. 1889).

A conviction or acquittal upon an indictment for assault and battery with intent to kill bars a subsequent prosecution for assault and battery and simple assault. Jones v. State, 66 Miss. 380, 6 So. 231, 1889 Miss. LEXIS 109 (Miss. 1889).

An acquittal under an indictment for murder which does not charge an assault and battery is not good in bar of a subsequent prosecution for the latter offense. Moore v. State, 59 Miss. 25, 1881 Miss. LEXIS 67 (Miss. 1881).

If a person engaged in a difficulty with two opponents unlawfully strikes each of them, he is subject to conviction for each assault, and a conviction for one will not bar a conviction for the other. Teat v. State, 53 Miss. 439, 1876 Miss. LEXIS 94 (Miss. 1876); Jones v. State, 66 Miss. 380, 6 So. 231, 1889 Miss. LEXIS 109 (Miss. 1889).

Reversal of a conviction for manslaughter and acquittal of murder on indictment for murder does not prevent another trial on the same indictment for manslaughter. Rolls v. State, 52 Miss. 391, 1876 Miss. LEXIS 227 (Miss. 1876); Powers v. State, 83 Miss. 691, 36 So. 6, 1903 Miss. LEXIS 90 (Miss. 1903), overruled, Jones v. State, 144 Miss. 52, 109 So. 265, 1926 Miss. LEXIS 341 (Miss. 1926).

4. Violation of statute and ordinance by same act.

The legislature can constitutionally confer on municipalities the power by ordinance to punish as an offense against the municipality an act which constitutes a crime against the state. Town of Ocean Springs v. Green, 77 Miss. 472, 27 So. 743, 1899 Miss. LEXIS 98 (Miss. 1899).

A conviction of an offense under a municipal ordinance is not a bar to a prosecution by the state for same act. Johnson v. State, 59 Miss. 543, 1882 Miss. LEXIS 155 (Miss. 1882).

5. Miscellaneous.

State failed to prove the elements of embezzlement in violation of Miss. Code Ann. §97-23-19 beyond a reasonable doubt and thus the trial court erred in denying defendant’s motion for a directed verdict; in order to prove embezzlement, the State had to provide evidence of the following: (1) a company owned the car in question, (2) the car was lawfully entrusted to defendant, and (3) defendant wrongfully converted the vehicle to his own use, and while the State established car ownership by the company given the vehicle identification number, the State did not prove that defendant was entrusted with the vehicle, given that (1) defendant did not have permission to take company vehicle off the lot just by being an employee of the company, (2) the car belonged to a different location where defendant was never employed, and (3) defendant did not possess a valid driver’s license, which prohibited him from lawfully driving company vehicles as part of his job. At best, the evidence might have shown the actual theft of property, but it did not prove embezzlement, and the court reversed and rendered. Luckett v. State, 989 So. 2d 995, 2008 Miss. App. LEXIS 527 (Miss. Ct. App. 2008).

A defendant’s conviction and sentence on a charge of rape did not subject him to double jeopardy even though he had also been convicted and sentenced on a burglary charge which arose out of the same facts and circumstances as the rape charge. Norman v. State, 543 So. 2d 1163, 1989 Miss. LEXIS 264 (Miss. 1989).

A conviction by a court held on Sunday will bar a subsequent prosecution. Cherry v. State, 103 Miss. 225, 60 So. 138, 1912 Miss. LEXIS 159 (Miss. 1912).

A conviction of the accused before a justice of the peace will bar an action in the circuit court under indictment for the same offense. Smith v. State, 101 Miss. 853, 58 So. 539, 1912 Miss. LEXIS 18 (Miss. 1912).

A failure of a court to pronounce a proper sentence will not prevent a bar to a second prosecution for the same offense. Smithey v. State, 93 Miss. 257, 46 So. 410, 1908 Miss. LEXIS 82 (Miss. 1908).

An affidavit charging under a city ordinance against leaking water pipes where there has been an acquittal in another prosecution for the same offense is barred. Crumpler v. Vicksburg, 89 Miss. 214, 42 So. 673, 1906 Miss. LEXIS 76 (Miss. 1906).

It is not violative of the section [Code 1942, § 2434] for the court, upon a conviction of an offender, to suspend the sentence except as to costs, and at a future term to impose a fine, etc. Gibson v. State, 68 Miss. 241, 8 So. 329, 1890 Miss. LEXIS 23 (Miss. 1890).

On a charge of gaming a conviction for the particular offense charged in an indictment does not confer immunity as to similar offenses committed prior to the time laid in the indictment, unless evidence thereof was adduced in the trial. Pope v. State, 63 Miss. 53, 1885 Miss. LEXIS 12 (Miss. 1885).

RESEARCH REFERENCES

ALR.

Former jeopardy as ground for habeas corpus. 8 A.L.R.2d 285.

Conviction of lesser offense as bar to prosecution for greater on new trial. 61 A.L.R.2d 1141.

Conviction from which appeal is pending as bar to another prosecution for same offense. 61 A.L.R.2d 1224.

What constitutes accused’s consent to court’s discharge of jury or to grant of state’s motion for mistrial which will constitute waiver of former jeopardy plea. 63 A.L.R.2d 782.

Subsequent trial, after stopping former trial to try accused for greater offense, as constituting double jeopardy. 6 A.L.R.3d 905.

Earlier prosecution for offense during which homicide was committed as bar to prosecution for homicide. 11 A.L.R.3d 834.

Admissibility of evidence as to other offense as affected by defendant’s acquittal of that offense. 25 A.L.R.4th 934.

Double jeopardy: various acts of weapons violations as separate or continuing offense. 80 A.L.R.4th 631.

Am. Jur.

21 Am. Jur. 2d, Criminal Law §§ 275 et seq.

41 Am. Jur. Trials 383, Habeas Corpus: Pretrial Motions (double jeopardy).

Editor’s Notes —

Pursuant to Miss. Const., Art. 6, § 171, all reference in the Mississippi Code to justice of the peace shall mean justice court judge.

Cross References —

Constitutional provisions on double jeopardy, see Miss. Const. Art. 3, § 22 and U.S. Const. Amend. V.

Justices of peace in misdemeanor cases upon discovering crime to be felony being required to transfer case to circuit court, see §99-33-13.

JUDICIAL DECISIONS

1. In general.

The statutory scheme embodied in Code 1942, §§ 1202, 1803, 1832, 1839, 2435, 2535, and 3915 clearly embraces sufficient safeguards for fair jury trial in justice of the peace courts, composed of a fair cross-section of the citizens of the community, completely without regard to race or sex, and the justice must conform his judgment to the verdict of such a jury. Shaffer v. Bridges, 295 F. Supp. 869, 1969 U.S. Dist. LEXIS 8348 (S.D. Miss. 1969), dismissed, Hall v. Baum, 397 U.S. 93, 90 S. Ct. 818, 25 L. Ed. 2d 79, 1970 U.S. LEXIS 2741 (U.S. 1970), dismissed, 397 U.S. 94, 90 S. Ct. 818, 25 L. Ed. 2d 80, 1970 U.S. LEXIS 2742 (U.S. 1970).

Where a justice of the peace impaneled a jury to try a case and afterwards discharged it and continued the case without a charge on merits held not to constitute former jeopardy. Chandler v. State, 140 Miss. 524, 106 So. 265, 1925 Miss. LEXIS 287 (Miss. 1925).

The statute is not violative of Const. 1890, § 22, declaring that no one shall be twice placed in jeopardy for the same offense. Huffman v. State, 84 Miss. 479, 36 So. 395, 1904 Miss. LEXIS 49 (Miss. 1904).

An acquittal of assault and battery before a justice bars a subsequent conviction of assault and battery on an indictment for assault with intent to murder. Rucker v. State, 24 So. 311 (Miss. 1898).

RESEARCH REFERENCES

ALR.

Conviction of lesser offense as bar to prosecution for greater on new trial. 61 A.L.R.2d 1141.

Double jeopardy: various acts of weapons violations as separate or continuing offense. 80 A.L.R.4th 631.

Am. Jur.

21 Am. Jur. 2d, Criminal Law §§ 305 et seq.

41 Am. Jur. Trials 383, Habeas Corpus: Pretrial Motions (double jeopardy).

Cross References —

Formal or technical words not necessary in an indictment, see §99-7-3.

Acquittal for variance between indictment and proof or on exception to form, see §99-11-29.

JUDICIAL DECISIONS

1. In general.

2. Failure to swear jury.

3. Defects in, or pertaining to, indictment or affidavit.

1. In general.

The statute is constitutional. Ex parte Phillips, 57 Miss. 357, 1879 Miss. LEXIS 89 (Miss. 1879).

2. Failure to swear jury.

Defendants could not complain for first time on appeal that grand jury and petit jury were not sworn. Brown v. State, 173 Miss. 542, 158 So. 339, 161 So. 465, 1935 Miss. LEXIS 190 (Miss. 1935).

Murder conviction would not be reversed on ground that grand jury and petit jury were not sworn, where fact did not affirmatively appear. Brown v. State, 173 Miss. 542, 158 So. 339, 161 So. 465, 1935 Miss. LEXIS 190 (Miss. 1935).

The failure of the court to specially swear a jury in a capital case where there is no objection raised before verdict cannot be taken advantage of for the first time on motion for a new trial. Hill v. State, 112 Miss. 375, 73 So. 66, 1916 Miss. LEXIS 121 (Miss. 1916).

The defect in the failure to seasonably swear all of the grand jurors, who were afterwards sworn, cannot be taken advantage of for the first time after verdict. Boroum v. State, 105 Miss. 887, 63 So. 297, 1913 Miss. LEXIS 272 (Miss. 1913).

A plea of “not guilty” before filing a motion to quash an indictment does not waive the right to object that the grand jury was not sworn, and to permit such a motion is discretionary with the court. Hardy v. State, 96 Miss. 844, 51 So. 460, 1910 Miss. LEXIS 176 (Miss. 1910).

Where the minutes of the court do not show that the grand jury was sworn, an indictment by such grand jury will be held void. Hardy v. State, 96 Miss. 844, 51 So. 460, 1910 Miss. LEXIS 176 (Miss. 1910).

Under this section [Code 1942, § 2436] an objection that the grand jury was not sworn will be presumed not well taken in the absence of a record to the contrary, when the point is raised for the first time on a motion to arrest judgment. Hays v. State, 96 Miss. 153, 50 So. 557, 1909 Miss. LEXIS 30 (Miss. 1909).

3. Defects in, or pertaining to, indictment or affidavit.

Where the appellant failed to plead that his surname was not shown in the indictment before pleading not guilty, he waived his right to claim that he was not the person named in the indictment, and the trial court was not required to amend the indictment on its own motion. Anselmo v. State, 312 So. 2d 712, 1975 Miss. LEXIS 1656 (Miss. 1975).

The right to receive a copy of the indictment pursuant to Code 1942 § 2441, may be waived by the accused where no objection is raised in the trial court. Yarbrough v. Dowell Div. of Dow Chemical Co., 285 So. 2d 170, 1973 Miss. LEXIS 1281 (Miss. 1973).

An indictment for burglary which stated in the body thereof that the grand jurors were taken from the County of Sunflower where in fact they were taken from the County of Humphreys was defective as to form but did not prejudice the defendant nor violate any of his constitutional rights and the defendant could not raise an objection for the first time after his conviction. Temple v. State, 221 Miss. 569, 73 So. 2d 174, 1954 Miss. LEXIS 564 (Miss. 1954).

Objection that foreman of grand jury did not indorse name on indictment could not be raised for first time on appeal. Pruitt v. State, 163 Miss. 47, 139 So. 861, 1932 Miss. LEXIS 16 (Miss. 1932).

Complaint that indictment was not sufficiently identified because of absence of clerk’s filing indorsement could not be raised for first time on appeal. Wooten v. State, 155 Miss. 726, 125 So. 103, 1929 Miss. LEXIS 349 (Miss. 1929).

Conviction on plea of guilty entered on amendable affidavit is good and cannot be set aside on certiorari for defective affidavit. Bogle v. State, 155 Miss. 612, 125 So. 99, 1929 Miss. LEXIS 347 (Miss. 1929).

Defect in affidavit charging possession of liquor on information and belief cannot be raised for first time on appeal. Stewart v. State, 151 Miss. 649, 118 So. 626, 1928 Miss. LEXIS 369 (Miss. 1928).

Claimed defect in indictment as not properly signed can be reached only on motion to quash and is not available for the first time on appeal. Wilcher v. State, 152 Miss. 13, 118 So. 356, 1928 Miss. LEXIS 207 (Miss. 1928).

An indictment of a woman for infanticide describing the persons killed as “two certain human beings the same being her (the defendant’s) children,” is good after verdict because of the provisions of Code 1892, §§ 1341, 1354, 1435 [Code 1942, §§ 2436, 2449, 2532]. Wilkinson v. State, 77 Miss. 705, 27 So. 639, 1900 Miss. LEXIS 24 (Miss. 1900).

The judgment should be arrested in a felony case, notwithstanding Code 1892, §§ 1341, 1354 (Code 1942, §§ 2436, 2449), unless the indictment clearly states the nature and cause of the accusation. Taylor v. State, 74 Miss. 544, 21 So. 129, 1896 Miss. LEXIS 150 (Miss. 1896).

If it is not demurred to, under this section [Code 1892, § 1341 (Code 1942, § 2436)] an indictment under Code 1892, § 1298 [Code 1942, § 2374] is sufficient after verdict although it does not allege that the promise was made to the woman, where it does charge that the defendant had carnal knowledge of a woman by virtue of a false or feigned promise of marriage. Coates v. Worthy, 72 Miss. 575, 17 So. 606, 1895 Miss. LEXIS 24 (Miss. 1895).

The statute applies only to such defects in the indictment as can be waived, constitutional rights cannot be waived. Newcomb v. State, 37 Miss. 383, 1859 Miss. LEXIS 27 (Miss. 1859).

RESEARCH REFERENCES

ALR.

Separation of jury in criminal case after submission of cause-modern cases. 72 A.L.R.3d 248.

Am. Jur.

41 Am. Jur. Trials 383, Habeas Corpus: Pretrial Motions (double jeopardy).

Amendment Notes —

The 2008 amendment rewrote the section.

The 2010 amendment substituted “person with an intellectual disability” for “person with mental retardation” the first time it appears and for “mentally retarded person” the second time it appears.

Cross References —

Definition of insanity for purposes of suspending death sentence execution, see §99-19-57.

Procedures regarding prisoner sentenced to death who becomes insane after judgment of court is rendered, see §99-19-57.

JUDICIAL DECISIONS

1. In general.

In the prosecution of a 14-year-old mentally retarded defendant for armed robbery, the trial court did not err in refusing to give an instruction that, if the jury found that the defendant was not responsible for his acts because of feeble-mindedness or mental retardation, they should acquit him where there was no evidence that, at the time the defendant committed the criminal act, he did not realize and appreciate the nature and quality thereof and could not distinguish right from wrong. May v. State, 398 So. 2d 1331, 1981 Miss. LEXIS 2021 (Miss. 1981).

RESEARCH REFERENCES

Am. Jur.

27 Am. Jur. Trials 1, Representing the Mentally Disabled Criminal Defendant.

40 Am. Jur. Proof of Facts 2d 171, Defendant’s Competency to Stand Trial.

41 Am. Jur. Proof of Facts 2d 615, Insanity Defense.

Law Reviews.

Smith, The insanity plea in Mississippi: a primer and a proposal. 10 Miss. C. L. Rev. 147, Spring, 1990.

1989 Mississippi Supreme Court Review: Insanity. 59 Miss. L. J. 883, Winter, 1989.

Practice References.

Blinka, Daniel D., and Imwinkelried, Edward J., Criminal Evidentiary Foundations (Michie) ).

Doyle, Loftus, and Dysart, Eyewitness Testimony: Civil and Criminal, Fifth Edition (LexisNexis).

George, Jr., B. James, Tymkovich, Timothy M., Coats, Nathan B., and Erickson, William H., United States Supreme Court Cases and Comments: Criminal Law and Procedure (Matthew Bender).

Mauriello, P. Thomas, Criminal Investigation Handbook (Matthew Bender).

Newton, Brent E., Practical Criminal Procedure: A Constitutional Manual, Second Edition (NITA).

Ordover, Abraham P., Criminal Law Advocacy (Matthew Bender).

Perlin, Michael L., Mental Disability Law: Civil and Criminal, Second Edition (LexisNexis).

Sacks, Garfield and Garfield, Criminal Defense Techniques (Matthew Bender Elite Products).

Schoenberg, Ronald L., Criminal Law Deskbook (Matthew Bender).

Shapiro, Jay, Criminal Practice Handbook, Fourth Edition (Michie).

Criminal Constitutional Law (Matthew Bender).

Mississippi Criminal and Traffic Law Manual (LexisNexis Law Enforcement).

Amendment Notes —

The 2008 amendment substituted “person with mental retardation” and “persons with mental retardation” for “feeble-minded person” and “feeble-minded persons”; and made minor stylistic changes.

The 2010 amendment substituted “person with an intellectual disability” for “person with mental retardation,” and “persons with mental illness or persons with an intellectual disability” for “persons of unsound mind or persons with mental retardation.”

Cross References —

Conservators of the peace generally, see §§99-15-1 through99-15-11.

Procedures regarding prisoner sentenced to death who becomes insane after judgment of court is rendered, see §99-19-57.

JUDICIAL DECISIONS

I. UNDER CURRENT LAW.

1. In general.

2. Decisions under earlier statutes.

3.-10. [Reserved for future use.]

II. UNDER FORMER LAW.

11. In general.

I. UNDER CURRENT LAW.

1. In general.

The test of a defendant’s sanity is whether he had sufficient mental capacity at time of commission of homicide to distinguish right and wrong, regardless of whether defendant was partially insane. Hamburg v. State, 203 Miss. 565, 35 So. 2d 324, 1948 Miss. LEXIS 307 (Miss. 1948).

While a defendant charged with crime has right to orally suggest, as by motion, to the court that he may be insane, such motion or suggestion must be accompanied by affidavits or the offer of witnesses to prove insanity or inability to plead or conduct rational defense. Skinner v. State, 198 Miss. 505, 23 So. 2d 501, 1945 Miss. LEXIS 223 (Miss. 1945), overruled, Speagle v. State, 390 So. 2d 990, 1980 Miss. LEXIS 2163 (Miss. 1980).

While instruction, in murder prosecution wherein defendant invoked defense of mental responsibility, that peculiarities of conduct on occasions do not amount to proof of insanity, should not be given, the granting of such instruction was not reversible error where there was no evidence that the accused, when he committed the act, did not have the ability to realize and appreciate the nature and quality thereof, and to distinguish right from wrong, and where the court gave a further instruction that the jury should take into consideration the responsibility of the defendant for the crime charged against him in determining the degree of punishment to be inflicted. Wood v. State, 197 Miss. 657, 20 So. 2d 661, 1945 Miss. LEXIS 303 (Miss.), cert. denied, 325 U.S. 833, 65 S. Ct. 1087, 89 L. Ed. 1961, 1945 U.S. LEXIS 2121 (U.S. 1945).

Under this section [Code 1942, § 2573] and the two next following [Code 1942, §§ 2574, 2575], the defendant acquitted of murder because of insanity and put in the lunatic asylum cannot be discharged because of lucid intervals. Caffey v. State, 78 Miss. 645, 29 So. 396, 1900 Miss. LEXIS 146 (Miss. 1900).

2. Decisions under earlier statutes.

Where defendant was indicted for murder, circuit court properly overruled motion to send case to chancery court to determine defendant’s insanity. Davis v. State, 151 Miss. 883, 119 So. 805, 1929 Miss. LEXIS 250 (Miss. 1929).

Where the defense is insanity in a prosecution for murder, information obtained from defendant by officers immediately following arrest was admissible. Wallace v. State, 143 Miss. 438, 108 So. 810, 1926 Miss. LEXIS 278 (Miss. 1926).

An instruction with reference to defendant’s ability of knowing right from wrong should be confined to the time of the alleged crime. Nelson v. State, 129 Miss. 288, 92 So. 66, 1922 Miss. LEXIS 40 (Miss. 1922).

A man insane at the time for arraignment should not be arraigned. Howie v. State, 121 Miss. 197, 83 So. 158, 1919 Miss. LEXIS 157 (Miss. 1919), overruled in part, Mitchell v. State, 179 Miss. 814, 176 So. 743, 1937 Miss. LEXIS 84 (Miss. 1937).

Where the accused convicted of a capital offense becomes insane at the time of trial and before judgment, judgment should not be pronounced against him. Howie v. State, 121 Miss. 197, 83 So. 158, 1919 Miss. LEXIS 157 (Miss. 1919), overruled in part, Mitchell v. State, 179 Miss. 814, 176 So. 743, 1937 Miss. LEXIS 84 (Miss. 1937).

3.-10. [Reserved for future use.]

II. UNDER FORMER LAW.

11. In general.

Where a person has been indicted for murder, after his commitment at the hospital because adjudged a lunatic, a sheriff cannot recover his custody by warrant on such indictment. Mabry v. Hoye, 124 Miss. 144, 87 So. 4, 1920 Miss. LEXIS 536 (Miss. 1920).

OPINIONS OF THE ATTORNEY GENERAL

No authority can be found for a municipality to voluntarily pay the costs to initiate civil commitment proceedings on behalf of a prisoner which are the statutory responsibility of the individual or county of residence. Blakley, Aug. 25, 2006, A.G. Op. 06-0383.

RESEARCH REFERENCES

ALR.

Modern status of test of criminal responsibility–State cases. 9 A.L.R.4th 526.

Competency to stand trial of criminal defendant diagnosed as “schizophrenic”–modern state cases. 33 A.L.R.4th 1062.

Modern status of test of criminal responsibility–federal cases. 56 A.L.R. Fed. 326.

Am. Jur.

21 Am. Jur. 2d, Criminal Law §§ 33, 35 et seq., 45 et seq.

4 Am. Jur. Proof of Facts 2d 171, Defendant’s Competency to Stand Trial.

41 Am. Jur. Proof of Facts 2d 615, Insanity Defense.

27 Am. Jur. Trials 1, Representing the Mentally Disabled Criminal Defendant.

CJS.

22 C.J.S., Criminal Law §§ 66 et seq.

Law Reviews.

Smith, The insanity plea in Mississippi: a primer and a proposal. 10 Miss. C. L. Rev. 147, Spring 1990.

Practice References.

Michael L. Perlin, Mental Disability Law: Civil and Criminal (LexisNexis).

Amendment Notes —

The 2008 amendment substituted “mental retardation” for “feeble-mindedness” throughout the section; and made minor stylistic changes.

The 2010 amendment substituted “intellectual disability” for references to “mental retardation” throughout; and substituted “persons with mental illness” for “persons of unsound mind” near the end.

Cross References —

Procedures regarding prisoner sentenced to death who becomes insane after judgment of court is rendered, see §99-19-57.

Effect of insanity on motion under Mississippi Uniform Post-Conviction Collateral Relief Act, see §§99-39-23,99-39-27.

JUDICIAL DECISIONS

1. In general.

The grand jury is not required by this section to delay acting on any case to await the outcome of the mental examination of an accused. Williamson v. State, 330 So. 2d 272, 1976 Miss. LEXIS 1844 (Miss. 1976).

RESEARCH REFERENCES

ALR.

Modern status of test of criminal responsibility–States cases. 45 A.L.R.2d 1447.

Necessity or propriety of bifurcated criminal trial on issue of insanity defense. 1 A.L.R.4th 884.

Competency to stand trial of criminal defendant diagnosed as “mentally retarded”–modern cases. 23 A.L.R.4th 493.

Competency to stand trial of criminal defendant diagnosed as “schizophrenic”–modern state cases. 33 A.L.R.4th 1062.

Am. Jur.

21 Am. Jur. 2d, Criminal Law §§ 33, 35 et seq., 45 et seq.

40 Am. Jur. Proof of Facts 2d 171, Defendant’s Competency to Stand Trial.

41 Am. Jur. Proof of Facts 2d 615, Insanity Defense.

27 Am. Jur. Trials 1, Representing the Mentally Disabled Criminal Defendant.

CJS.

22 C.J.S., Criminal Law §§ 66 et seq.

Law Reviews.

Smith, The insanity plea in Mississippi: a primer and a proposal. 10 Miss. C. L. Rev. 147, Spring, 1990.

1989 Mississippi Supreme Court Review: Insanity. 59 Miss. L. J. 883, Winter, 1989.

Practice References.

Michael L. Perlin, Mental Disability Law: Civil and Criminal (LexisNexis).

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected an error in the introductory language. The word “have” was changed to “has” and the word “be” was changed to “is” so that “...whether the accused have since been restored to his reason, and whether he be dangerous to the community,” now reads as “...whether the accused has since been restored to his reason, and whether he is dangerous to the community.” The Joint Committee ratified the correction at its August 5, 2008, meeting.

Amendment Notes —

The 2008 amendment substituted “restored to his sanity” for “restored to his reason” and substituted “state psychiatric hospitals or institutions” for “state asylums for the insane”; and made minor stylistic changes.

The 2010 amendment added (2).

Cross References —

Commitment proceedings generally, see §41-21-63.

Requirements for outpatient commitments, see §41-21-74.

Acquittal for feeble-mindedness, see §99-13-9.

Definition of insanity for purposes of suspending death sentence execution, see §99-19-57.

Procedures regarding prisoner sentenced to death who becomes insane after judgment of court is rendered, see §99-19-57.

Release of person committed pursuant to this section and required notice to sheriffs and victims or immediate family member, see §41-21-88.

JUDICIAL DECISIONS

I. UNDER CURRENT LAW.

1. In general.

2. Commitment suspension.

3. Indefinite commitment.

4-10. [Reserved for future use.]

II. UNDER FORMER LAW.

11. In general.

I. UNDER CURRENT LAW.

1. In general.

Jury’s verdict was not supported by substantial evidence where the State failed to present sufficient evidence, or any evidence at all, to prove defendant’s sanity beyond a reasonable doubt; once the accused had overcome the presumption of sanity, it then became the State’s burden to present sufficient evidence to prove the accused’s sanity beyond a reasonable doubt, and the testimony of three physicians created a reasonable doubt as to defendant’s sanity at the time of the accident. Hawthorne v. State, 881 So. 2d 234, 2003 Miss. App. LEXIS 962 (Miss. Ct. App. 2003), rev'd, 883 So. 2d 86, 2004 Miss. LEXIS 1173 (Miss. 2004).

There are 2 exclusive methods available to courts for committing an individual indefinitely to a state hospital, due to mental disorders. The first method of commitment requires acquittal by a jury on the basis of insanity or feeble-mindedness; §99-13-7 deals with acquittal of a crime by reason of insanity, and §99-13-9 provides for acquittal for feeble-mindedness. The second method of indefinite commitment requires a hearing before a chancellor prior to the individual being ordered to the state hospital for treatment and is found in §§41-21-61 through41-21-107. The legislature has not seen fit to bestow upon circuit judges the power to indefinitely commit an individual without the concurrence of a jury or without deferring to the chancellor through §§41-21-61 to41-21-107 and, therefore, commitment of an individual to a state hospital requires more than a mere order by a circuit court judge. Hendrix v. Gammage, 556 So. 2d 354, 1990 Miss. LEXIS 25 (Miss. 1990).

A finding that one is mentally ill does not necessarily mean that one is M’Naghten insane. Davis v. State, 551 So. 2d 165, 1989 Miss. LEXIS 364 (Miss. 1989), cert. denied, 494 U.S. 1074, 110 S. Ct. 1796, 108 L. Ed. 2d 797, 1990 U.S. LEXIS 1741 (U.S. 1990).

A defendant is presumed sane until a reasonable doubt of his or her sanity is created. When such a doubt arises, the burden is then placed upon the State to prove, beyond a reasonable doubt, the defendant’s sanity. The issue of a defendant’s insanity is a determination for the jury to make, and the finding will not be reversed if it is supported by substantial evidence. In making this determination, the jury may accept or reject expert and lay testimony. Davis v. State, 551 So. 2d 165, 1989 Miss. LEXIS 364 (Miss. 1989), cert. denied, 494 U.S. 1074, 110 S. Ct. 1796, 108 L. Ed. 2d 797, 1990 U.S. LEXIS 1741 (U.S. 1990).

Where testimony that accused’s mental condition was such at the time of the crime as to render him incapable of distinguishing between right and wrong was clear, convincing and unequivocal, and the opposing evidence was sketchy, general, and supported only by slight circumstances, the verdict of guilt, with its implicit finding of sanity, was against the overwhelming weight of the evidence. Saunders v. Estate of Horne, 312 So. 2d 700, 1975 Miss. LEXIS 1651 (Miss. 1975).

It is inconsistent with this provision to charge the jury in a criminal case that if they should find defendant not guilty by reason of insanity and certify his dangerousness to the community, it would be the court’s duty to commit him to the asylum until he should regain his sanity “at which time he would go free”. Gambrell v. State, 238 Miss. 892, 120 So. 2d 758, 1960 Miss. LEXIS 479 (Miss. 1960).

Where the sole defense in a criminal prosecution is insanity, it would be error for the court merely to instruct the jury to bring in a verdict of “not guilty” should they so find the defendant. State v. Goering, 200 Miss. 585, 28 So. 2d 248, 1946 Miss. LEXIS 328 (Miss. 1946).

Statutes providing insanity shall be no defense to murder indictment held violative of due-process clause. Sinclair v. State, 161 Miss. 142, 132 So. 581, 1931 Miss. LEXIS 235 (Miss. 1931).

2. Commitment suspension.

Defendant’s sentences as a habitual offender to life without eligibility for parole or probation in the custody of the Mississippi Department of Corrections for his murder conviction on Count II and to confinement in the State hospital after he was found not guilty by reason of insanity for his murder charge on Count I, which was suspended until he was released on Count II, were proper because the circuit court properly exercised its discretion in requiring him to serve first his mandatory life sentence before his term of an indefinite confinement in a mental institution. Defendant’s order of commitment stemming from the jury’s finding of not guilty by reason of insanity in Count I had to be suspended by operation of Miss. Code Ann. §99-13-7’s conflict with a simultaneous conviction of guilt and sentencing under Miss. Code Ann. §99-19-81, the latter being explicitly immune from suspension. Sanders v. State, 63 So.3d 554, 2010 Miss. App. LEXIS 130 (Miss. Ct. App. 2010), aff'd, 63 So.3d 497, 2011 Miss. LEXIS 193 (Miss. 2011).

3. Indefinite commitment.

Under Miss. Code Ann. §99-13-7, if the jury had acquitted defendant on both counts and had found him not to have been restored to reason, but had not found that he was a danger to the community, commitment under that statute would not have been mandatory. Despite the unusual circumstances of the sentencing order, the trial court properly exercised its discretion in requiring defendant to first to serve his mandatory life sentence before his term of an indefinite confinement in a mental institution. Sanders v. State, 63 So.3d 497, 2011 Miss. LEXIS 193 (Miss. 2011).

4-10. [Reserved for future use.]

II. UNDER FORMER LAW.

11. In general.

Where indictment charging defendant with murder was, on motion of state, passed to the files, and defendant was subsequently tried under statutory proceedings for insanity, declared insane, and committed to an asylum by the chancery court, the adjudication of the chancery court did not oust the circuit court of jurisdiction to try defendant for murder. Byrd v. State, 179 Miss. 336, 175 So. 190, 1937 Miss. LEXIS 30 (Miss. 1937).

OPINIONS OF THE ATTORNEY GENERAL

There is no procedure established in Mississippi Code for release of such acquitees upon recovery of sanity; circuit court committing person to mental institution pursuant to Section 99-13-7 of Code retains jurisdiction to authorize release of such person; this may be done by motion of hospital or by committed person; release of patient may be subject to any conditions that are therapeutic in nature, such as continued medication or periodic psychiatric reviews; release may not be conditioned upon patient’s meeting punitive restrictions such as are normally placed on paroled convicts. Hendrix Sept. 22, 1993, A.G. Op. #93-0543.

RESEARCH REFERENCES

ALR.

Insanity of accused at time of commission of offense, not raised at trial, as ground for habeas corpus or coram nobis after conviction. 29 A.L.R.2d 703.

Requirement of unanimity of verdict in proceedings to determine sanity of one accused of crime. 42 A.L.R.2d 1468.

Modern status of test of criminal responsibility–State cases. 45 A.L.R.2d 1447.

Validity of statutory provision for commitment to mental institution of one acquitted of crime on ground of insanity without formal determination of mental condition at time of acquittal. 50 A.L.R.3d 144.

Necessity or propriety of bifurcated criminal trial on issue of insanity defense. 1 A.L.R.4th 884.

Validity of conditions imposed when releasing person committed to institution as consequence of acquittal of crime on ground of insanity. 2 A.L.R.4th 934.

Modern status of test of criminal responsibility–state cases. 9 A.L.R.4th 526.

“Guilty but mentally ill” statutes: validity and construction. 71 A.L.R.4th 702.

Instructions in state criminal case in which defendant pleads insanity as to hospital confinement in event of acquittal. 81 A.L.R.4th 659.

Commitment for examination under 18 USCS sec. 4247(b) of defendant giving notice of intention to raise insanity defense to criminal charge. 90 A.L.R. Fed. 902.

Am. Jur.

21 Am. Jur. 2d, Criminal Law §§ 72 et seq.

8 Am. Jur. Pl & Pr Forms (Rev), Criminal Procedure, Form 224, (judgment or decree committing defendant as insane).

8 Am. Jur. Pl & Pr Forms (Rev), Criminal Procedure, Form 225, (warrant for commitment of defendant as insane).

40 Am. Jur. Proof of Facts 2d 171, Defendant’s Competency to Stand Trial.

41 Am. Jur. Proof of Facts 2d 615, Insanity Defense.

27 Am. Jur. Trials 1, Representing the Mentally Disabled Criminal Defendant.

CJS.

22 C.J.S., Criminal Law §§ 66 et seq.

Law Reviews.

Smith, The insanity plea in Mississippi: a primer and a proposal. 10 Miss. C. L. Rev. 147, Spring, 1990.

Practice References.

Michael L. Perlin, Mental Disability Law: Civil and Criminal (LexisNexis).

Amendment Notes —

The 2008 amendment divided the former first sentence into the present first and second sentences by substituting the period for “; and”; substituted “mental retardation” and “person with mental retardation” for references to “feeble-mindedness” and “feeble-minded person”; and made minor stylistic changes.

The 2010 amendment substituted “ground of having an intellectual disability” for “ground of mental retardation” in the first sentence; and substituted “an intellectual disability” for references to “mental retardation” everywhere it appears in the last sentence.

Cross References —

Commitment proceedings generally, see §41-21-63.

Requirements for outpatient commitments, see §41-21-74.

Acquittal for insanity, see §99-13-7.

Procedures regarding prisoner sentenced to death who becomes insane after judgment of court is rendered, see §99-19-57.

Definition of insanity for purposes of suspending death sentence execution, see §99-19-57.

JUDICIAL DECISIONS

1. In general.

There are 2 exclusive methods available to courts for committing an individual indefinitely to a state hospital, due to mental disorders. The first method of commitment requires acquittal by a jury on the basis of insanity or feeble-mindedness; §99-13-7 deals with acquittal of a crime by reason of insanity, and this section provides for acquittal for feeble-mindedness. The second method of indefinite commitment requires a hearing before a chancellor prior to the individual being ordered to the state hospital for treatment and is found in §§41-21-61 through41-21-107. The legislature has not seen fit to bestow upon circuit judges the power to indefinitely commit an individual without the concurrence of a jury or without deferring to the chancellor through §§41-21-61 to41-21-107 and, therefore, commitment of an individual to a state hospital requires more than a mere order by a circuit court judge. Hendrix v. Gammage, 556 So. 2d 354, 1990 Miss. LEXIS 25 (Miss. 1990).

In the prosecution of a 14-year-old mentally retarded defendant for armed robbery, the trial court did not err in refusing to give an instruction that, if the jury found that the defendant was not responsible for his acts because of feeble-mindedness or mental retardation, they should acquit him where there was no evidence that, at the time the defendant committed the criminal act, he did not realize and appreciate the nature and quality thereof and could not distinguish right from wrong. May v. State, 398 So. 2d 1331, 1981 Miss. LEXIS 2021 (Miss. 1981).

RESEARCH REFERENCES

ALR.

“Guilty but mentally ill” statutes: validity and construction. 71 A.L.R.4th 702.

Instructions in state criminal case in which defendant pleads insanity as to hospital confinement in event of acquittal. 81 A.L.R.4th 659.

Am. Jur.

21 Am. Jur. 2d, Criminal Law §§ 33, 35 et seq., 45 et seq.

41 Am. Jur. Proof of Facts 2d 615, Insanity Defense.

27 Am. Jur. Trials 1, Representing the Mentally Disabled Criminal Defendant.

CJS.

22 C.J.S., Criminal Law §§ 66 et seq.

Law Reviews.

Smith, The insanity plea in Mississippi: a primer and a proposal 10 Miss. C. L. Rev. 147, Spring, 1990.

Practice References.

Michael L. Perlin, Mental Disability Law: Civil and Criminal (LexisNexis).

Joint Legislative Committee Note —

Section 1 of ch. 474, Laws of 1997, effective from and after passage (approved March 27, 1997) amended this section. Section 1 of ch. 433, Laws of 1997, also amended this section, effective July 1, 1997. As set out above, this section reflects the language of Section 1 of ch. 433, Laws of 1997, pursuant to Section 1-3-79 which provides that whenever the same section of law is amended by different bills during the same legislative session, the amendment with the latest effective date shall supersede all other amendments to the same section taking effect earlier.

Amendment Notes —

The 2019 amendment substituted “criminal action in which the mental capacity of a person charged with a felony is in question, the circuit or county court” for “criminal action in the circuit court in which the mental condition of a person indicted for a felony is in question, the court”; and made minor stylistic and grammatical changes.

Cross References —

Commitment proceedings generally, see §41-21-63.

Procedures regarding prisoner sentenced to death who becomes insane after judgment of court is rendered, see §99-19-57.

Competency determination, see Miss. Unif. Cir. & County Ct. Prac. R. 9.06.

Insanity defense and mental examinations, see Miss. Unif. Cir. & County Ct. Prac. R. 9.07.

Training of psychiatrists and psychologists to perform mental examinations ordered under this section and MRCrP 12, see §41-21-70.

JUDICIAL DECISIONS

1. Generally.

2. Grounds for appointment of examiner.

3. Defendant’s right to select examiner.

4. Conduct of examination.

5. Consideration of examination results.

6. Appealability.

7. Miscellaneous.

1. Generally.

In hearing to determine whether or not accused is competent to stand trial, state need not be required to prove competency beyond reasonable doubt or by clear and convincing evidence, where procedures such as those set forth in Emanuel v. State, 412 So. 2d 1187 (Miss. 1982), have been approved by United States Supreme Court see Drope v. Missouri, 420 U.S. 162, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975)), prosecution at federal level is required to prove competency of criminal defendant by preponderance of evidence, and due process afforded defendant by current procedures preclude need to impose greater burden on state officials. Griffin v. State, 504 So. 2d 186, 1987 Miss. LEXIS 2390 (Miss. 1987).

In hearing to determine defendant’s competency to stand trial, evidence must demonstrate probability rather than mere possibility that defendant is incapable of making rational defense, and trial court’s decision that evidence does not show such probability will not be overturned unless it can be said that finding was manifestly against overwhelming weight of evidence. Emanuel v. State, 412 So. 2d 1187, 1982 Miss. LEXIS 1928 (Miss. 1982).

In a prosecution for murder, the trial court did not abuse its discretion in refusing to order a further mental study of the defendant where the defendant had previously been examined on several occasions to establish his mental condition and no further evidence was offered to support the request for a further examination. Parcell v. State, 389 So. 2d 1386, 1980 Miss. LEXIS 2138 (Miss. 1980).

Psychiatrist’s examination of defendant was inadequate where the psychiatrist himself testified that further examination of the defendant was needed and where his examination of defendant had consisted merely of a one hour and 15 minute interview. Hill v. State, 339 So. 2d 1382, 1976 Miss. LEXIS 1699 (Miss. 1976), cert. denied, 430 U.S. 987, 97 S. Ct. 1689, 52 L. Ed. 2d 384, 1977 U.S. LEXIS 1658 (U.S. 1977).

This section [Code 1942, § 2575.5] does not alter preexisting law, its purpose being merely to authorize the circuit judge to appoint a psychiatrist and to pay for the expense of the examination from county funds. Jaquith v. Beckwith, 248 Miss. 491, 157 So. 2d 403, 1963 Miss. LEXIS 404 (Miss. 1963).

The discretion of a judge acting under this provision is a judicial one, requiring some evidential laws. Jaquith v. Beckwith, 248 Miss. 491, 157 So. 2d 403, 1963 Miss. LEXIS 404 (Miss. 1963).

Apart from the statutes, the general law permits a court to call expert witnesses for the purpose of examining prisoners and testifying therefrom. Wilson v. State, 243 Miss. 859, 140 So. 2d 275, 1962 Miss. LEXIS 413 (Miss. 1962).

The statute leaves unchanged the requirement that an accused not capable of conducting his defense in a rational manner may not be brought to trial, and merely supplements the former rule requiring the trial judge to empanel a jury to try the issue of competency preliminarily to trial on the merits. McGinnis v. State, 241 Miss. 883, 133 So. 2d 399, 1961 Miss. LEXIS 417 (Miss. 1961).

The purpose of this statute is to avoid placing an accused on trial unless he is at the time capable of conducting a rational defense by intelligently conferring with his counsel. McGinnis v. State, 241 Miss. 883, 133 So. 2d 399, 1961 Miss. LEXIS 417 (Miss. 1961); Frierson v. State, 250 Miss. 339, 165 So. 2d 342, 1964 Miss. LEXIS 467 (Miss. 1964); Tarrants v. State, 236 So. 2d 360, 1970 Miss. LEXIS 1475 (Miss. 1970), cert. denied, 401 U.S. 920, 91 S. Ct. 907, 27 L. Ed. 2d 823, 1971 U.S. LEXIS 3245 (U.S. 1971).

2. Grounds for appointment of examiner.

In an aggravated assault case, a trial court did not err by denying the motion for a mental examination under Miss. Unif. Cir. & County Ct. Prac. R. 9.06 and Miss. Code Ann. §99-13-11; even though defendant’s mother testified that he suffered from psychosis, there were no medical records or documentation submitted. Further, despite suffering from psychological ailments, defendant was competent enough to assist counsel in his previous cases, and he was receiving medication at the time of the hearing. Epps v. State, 984 So. 2d 1042, 2008 Miss. App. LEXIS 111 (Miss. Ct. App. 2008).

Defendant’s conviction for attempted kidnapping was proper where he failed to present sufficient evidence to support his claim that a mental examination was required. The simple fact that defendant was seeing a psychiatrist did not require that the trial court find that he was incapable of a rational defense or order a mental examination. Carter v. State, 932 So. 2d 850, 2006 Miss. App. LEXIS 77 (Miss. Ct. App.), cert. denied, 933 So. 2d 303, 2006 Miss. LEXIS 496 (Miss. 2006).

The trial court justly concluded that a mental examination was unnecessary in order to conduct a fair trial, notwithstanding the defendant’s assertion that he suffered from periodic loss of memory and occasional blackouts, where the record indicated that the trial judge directed a series of questions to the defense to ensure that the defendant was capable to stand trial, and that, after addressing these questions, the judge concluded that the circumstance indicated that the defendant was fully competent to stand trial. Benish v. State, 733 So. 2d 855, 1999 Miss. App. LEXIS 23 (Miss. Ct. App. 1999).

A trial court did not err in not ordering a competency hearing for a capital murder defendant, in spite of evidence that the defendant took medication for schizophrenia, made a suicide “gesture,” and allegedly “heard voices,” where there was nothing in the record which, considered in context, led “inexorably to the conclusion that [the defendant] could neither understand the proceedings or appreciate their significance, nor rationally aid his attorney in his defense.” Conner v. State, 632 So. 2d 1239, 1993 Miss. LEXIS 541 (Miss. 1993), cert. denied, 513 U.S. 927, 115 S. Ct. 314, 130 L. Ed. 2d 276, 1994 U.S. LEXIS 7088 (U.S. 1994), overruled, Weatherspoon v. State, 732 So. 2d 158, 1999 Miss. LEXIS 4 (Miss. 1999).

A defendant had no right to funds to employ his own psychiatrist where the trial court had granted him a mental examination at a state hospital. Willie v. State, 585 So. 2d 660, 1991 Miss. LEXIS 454 (Miss. 1991).

A trial court’s denial of a capital murder defendant’s request for a private mental examination did not violate the Eighth and Fourteenth Amendments, where the defendant did not attempt to use an insanity defense, the State did not produce psychiatric testimony against him, and he did not demonstrate that sanity was to be a significant factor at trial. Ladner v. State, 584 So. 2d 743, 1991 Miss. LEXIS 434 (Miss.), cert. denied, 502 U.S. 1015, 112 S. Ct. 663, 116 L. Ed. 2d 754, 1991 U.S. LEXIS 7261 (U.S. 1991).

Denial of a request for further mental examination to determine competency to stand trial was not error where a previous mental examination conducted a month prior to trial had resulted in the determination that the defendant was competent to stand trial. Wheeler v. State, 536 So. 2d 1347, 1988 Miss. LEXIS 607 (Miss. 1988).

Trial court should select and appoint competent psychiatrist to determine defendant’s ability to make defense when defendant appears to be incompetent. Gammage v. State, 510 So. 2d 802, 1987 Miss. LEXIS 2641 (Miss. 1987).

The trial court did not abuse its discretion in overruling a motion for a psychiatric examination of a defendant charged with armed robbery where a deputy sheriff testified that during the year that defendant had been in jail he had always appeared normal and rational and had served as a trusty for about three months and where a defense witness admitted that defendant had never been treated for a mental condition or psychiatrically examined. Harris v. State, 386 So. 2d 393, 1980 Miss. LEXIS 2037 (Miss. 1980).

The trial court did not err in denying a psychiatric examination to the defendant in a murder prosecution where the only evidence offered in support of the petition was defendant’s own conflicting testimony. Bell v. State, 360 So. 2d 1206, 1978 Miss. LEXIS 2318 (Miss. 1978).

It was error to deny defendant’s motion for his commitment and determination of his sanity where three witnesses had testified as to his unusual behavior and had given their opinions that he was not sane, and a fourth witness, a psychiatrist, had testified, based on a limited examination, that defendant was incapable of making a rational defense and that he needed further examination. Stevenson v. State, 325 So. 2d 113, 1975 Miss. LEXIS 1601 (Miss. 1975).

If a person charged with a felony would have a psychiatrist furnished for the purpose of examining his ability to assist in his defense, he must present evidence of the probability that he is unable to assist in his own defense, and the trial judge has reasonable discretion in determining whether such accused should be examined by a psychiatrist. McLeod v. State, 229 So. 2d 557, 1969 Miss. LEXIS 1247 (Miss. 1969).

In order to obtain the services of a psychiatrist under the section [Code 1942, § 2575.5] some evidence must be introduced or some fact acquired from observation of the court, to indicate the necessity of psychiatric aid, and where the only reason given in support of a motion that a psychiatrist be appointed to examine a defendant charged with rape was that “the very nature of the case called for the aid of a psychiatrist”, and there was nothing in the record to indicate any mental deficiency of the defendant, the motion was properly overruled. Smith v. State, 229 So. 2d 551, 1969 Miss. LEXIS 1246 (Miss. 1969).

This section [Code 1942, § 2575.5] was intended to cover the mental condition of persons charged with crime, and where the affidavits supporting the defendant’s motion for a psychiatric examination failed to allege insanity but only charged that defendant was a chronic alcoholic, the trial judge properly overruled the motion. King v. State, 210 So. 2d 887, 1968 Miss. LEXIS 1535 (Miss. 1968).

The lower court did not abuse its discretion in overruling accused’s motion for examination as to his mental ability to stand trial where, although afforded opportunity to do so, he failed, on a hearing upon the motion, to produce evidence to the effect that there was a reasonable probability that he was incapable of making a rational defense. Frierson v. State, 250 Miss. 339, 165 So. 2d 342, 1964 Miss. LEXIS 467 (Miss. 1964).

To warrant an order under this section [Code 1942, § 2575.5], there must be a reasonable probability that accused is not physically and mentally able to confer with his counsel as to the merits of his case and to testify as a witness in his own behalf. Jaquith v. Beckwith, 248 Miss. 491, 157 So. 2d 403, 1963 Miss. LEXIS 404 (Miss. 1963).

Before an accused may be subjected to a psychiatric examination before trial, there must be evidence raising a reasonable doubt of insufficient unsoundness of mind to make a rational defense. Jaquith v. Beckwith, 248 Miss. 491, 157 So. 2d 403, 1963 Miss. LEXIS 404 (Miss. 1963).

3. Defendant’s right to select examiner.

A defendant was not improperly denied the assistance of an independent privately employed psychiatrist in violation of his Sixth, Eighth and Fourteenth Amendment rights where the defendant requested and received a psychiatric examination and evaluation to determine his mental condition, resulting in the unanimous determination of 5 medical professionals that the defendant was sane at the time of the charged offense and was competent to aid in his defense. Lanier v. State, 533 So. 2d 473, 1988 Miss. LEXIS 523 (Miss. 1988).

A murder defendant was not entitled to a private psychologist at the county’s expense to assist the defense counsel in establishing mitigating evidence during the sentencing phase where the defendant did not raise the insanity defense at trial, did not claim to be incompetent to stand trial, the State did not produce psychiatric testimony against the defendant in the penalty phase and the defendant failed to demonstrate that his sanity at the time of the offense was to be a significant factor at trial. Nixon v. State, 533 So. 2d 1078, 1987 Miss. LEXIS 2917 (Miss. 1987), cert. denied, 490 U.S. 1102, 109 S. Ct. 2458, 104 L. Ed. 2d 1012, 1989 U.S. LEXIS 2745 (U.S. 1989), overruled, Wharton v. State, 734 So. 2d 985, 1998 Miss. LEXIS 576 (Miss. 1998).

This section [Code 1942, § 2575.5] makes no provision for the appointment of the psychiatrist selected by the defendant. Tarrants v. State, 236 So. 2d 360, 1970 Miss. LEXIS 1475 (Miss. 1970), cert. denied, 401 U.S. 920, 91 S. Ct. 907, 27 L. Ed. 2d 823, 1971 U.S. LEXIS 3245 (U.S. 1971); King v. Cook, 297 F. Supp. 99, 1969 U.S. Dist. LEXIS 9067 (N.D. Miss. 1969).

There are no statutory provisions for the appointment and payment of a psychiatrist selected either by the court or the defendant; and defendant’s motion for the appointment of a private psychiatrist to examine him was properly overruled. Winston County Community Hospital v. Hathorn, 242 So. 2d 865, 1970 Miss. LEXIS 1393 (Miss. 1970).

This section [Code 1942, § 2575.5] makes no provision for the appointment of a psychiatrist chosen by the defendant, and the trial court has, and should have, the right to select the psychiatrist upon whom it is to depend. King v. State, 210 So. 2d 887, 1968 Miss. LEXIS 1535 (Miss. 1968).

4. Conduct of examination.

Where a well known and recognized psychiatrist, who had been appointed by the court to examine the accused, had observed the accused during the prior sanity hearing and had heard all the witnesses testify, and had examined the accused privately for about 30 minutes, the accused’s contention that the psychiatrist’s examination was not conducted for a sufficient time for him to exclude all reasonable doubt as to whether the accused knew the difference between right and wrong was not well taken. Wilson v. State, 243 Miss. 859, 140 So. 2d 275, 1962 Miss. LEXIS 413 (Miss. 1962).

5. Consideration of examination results.

The result of an examination under this statute is for consideration by the court and jury in determining, prior to trial on the merits, the issue of present insanity. Jaquith v. Beckwith, 248 Miss. 491, 157 So. 2d 403, 1963 Miss. LEXIS 404 (Miss. 1963).

6. Appealability.

An order made under this section [Code 1942, § 2575.5] is not appealable. Jaquith v. Beckwith, 248 Miss. 491, 157 So. 2d 403, 1963 Miss. LEXIS 404 (Miss. 1963).

7. Miscellaneous.

In a guilty plea of manslaughter and possession of a firearm by a convicted felon, defendant testified under oath that he understood what he was doing and that his mind was clear, and, additionally, he did not produce any supporting affidavits to the appellate court to establish his alleged mental deficiency, as required by Miss. Code Ann. §99-39-9(e); thus, the trial judge did not abuse her discretion in not ordering, upon her own motion, a psychiatric evaluation of defendant pursuant to Miss. Code Ann. §99-13-11 because she determined that the accused was competent to understand the nature of the charges as required by Miss. Unif. Cir. & County Ct. Prac. R. 8.04(4)(a) and defendant’s motion for post-conviction relief was denied. Richardson v. State, 856 So. 2d 758, 2003 Miss. App. LEXIS 946 (Miss. Ct. App. 2003).

The court did not abuse its discretion in refusing to order a mental examination to determine whether the defendant was capable of making a rational defense on his own behalf; although he asserted that he suffered from a memory loss as the result of a closed-head injury sustained in the accident at end of his flight from authorities and that he had absolutely no recollection of the events that transpired, he provided no evidence of his injury or memory loss and the matter was not even raised when the motion was presented. Wilson v. State, 755 So. 2d 2, 1999 Miss. App. LEXIS 215 (Miss. Ct. App. 1999).

Defendant was not competent to stand trial due to finding that he was unable to assist in his defense, where defendant’s intelligence quotient was 48 to 52, findings of psychologist concluded that defendant did not possess mental capacity to assist in preparation of defense, and district attorney’s motion to pass case to files contained affidavit asking that defendant be committed to mental institution; state’s only effort at rebutting evidence of incompetency was effort to prove that defendant had answered questions rationally at his arraignment. Gammage v. State, 510 So. 2d 802, 1987 Miss. LEXIS 2641 (Miss. 1987).

At a hearing on a habeas corpus petition asserting that the sentencing court erred in failing to have a pretrial jury resolve the mental competency of defendant to stand trial, under this section, evidence of psychiatric reports, defendant’s testimony at the sentencing hearing, and defendant’s attorney’s testimony, was sufficient to support findings that defendant knew right from wrong, that he was able to aid his counsel, that he had average or better intelligence, and that he was without psychosis; and thus, there was no reason for the sentencing judge to hold, on his own initiative, any separate hearing as to defendant’s competency. Caylor v. State, 437 So. 2d 444, 1983 Miss. LEXIS 2867 (Miss. 1983), cert. denied, 465 U.S. 1032, 104 S. Ct. 1300, 79 L. Ed. 2d 700, 1984 U.S. LEXIS 1188 (U.S. 1984).

In an appeal from a felony conviction, where the appellant filed a motion requesting that his appeal be dismissed and purporting to discharge his attorneys, and counsel of record responded to the request by raising the question whether the appellant was mentally competent to represent himself, the question of his competency was to be determined before passing on the motion, the supreme court would order that the trial court conduct a factual hearing after a mental examination, on the question whether the appellant was competent to represent himself in the case and to know and understand the effect of his motion to dismiss the appeal. Tarrants v. State, 231 So. 2d 493, 1970 Miss. LEXIS 1592 (Miss. 1970).

Habeas corpus is available to an accused to test the validity of an order under this section [Code 1942, § 2575.5]. Jaquith v. Beckwith, 248 Miss. 491, 157 So. 2d 403, 1963 Miss. LEXIS 404 (Miss. 1963).

OPINIONS OF THE ATTORNEY GENERAL

Expenses incurred in mental examination of defendant in criminal action should be borne by county in which action is pending. Hendrix, June 4, 1991, A.G. Op. #91-0379.

RESEARCH REFERENCES

ALR.

Validity and construction of statutes providing for psychiatric examination of accused to determine mental condition. 32 A.L.R.2d 434.

Admissibility on issue of sanity of expert opinion based partly on medical, psychological or hospital reports. 55 A.L.R.3d 551.

Right of accused in criminal prosecution to presence of counsel at court-appointed or -approved psychiatric examination. 3 A.L.R.4th 910.

Modern status of test of criminal responsibility–State cases. 9 A.L.R.4th 526.

Power of court, in absence of statute, to order psychiatric examination of accused for purpose of determining mental condition at time of alleged offense. 17 A.L.R.4th 1274.

Qualification of nonmedical psychologist to testify as to mental condition or competency. 72 A.L.R.5th 529.

Commitment for examination under 18 USCS sec. 4247(b) of defendant giving notice of intention to raise insanity defense to criminal charge. 90 A.L.R. Fed. 902.

Am. Jur.

21 Am. Jur. 2d, Criminal Law §§ 86 et seq.

8 Am. Jur. Pl & Pr Forms (Rev), Criminal Procedure, Forms 221-223, (psychiatric examination of accused).

41 Am. Jur. Proof of Facts 2d 615, Insanity Defense.

27 Am. Jur. Trials 1, Representing the Mentally Disabled Criminal Defendant.

Lawyers’ Edition.

Indigent criminal defendant held entitled to assistance of psychiatrist when sanity at time of offense is seriously in question. 84 L. Ed. 2d 53.

Law Reviews.

1989 Mississippi Supreme Court Review: Insanity. 59 Miss. L. J. 883, Winter, 1989.

Practice References.

Michael L. Perlin, Mental Disability Law: Civil and Criminal (LexisNexis).

Editor’s Notes —

Pursuant to Miss. Const., Art. 6, § 171, all reference in the Mississippi Code to justice of the peace shall mean justice court judge.

Cross References —

Appearance by criminal defendant held in custody or confinement by means of closed-circuit television, see §99-1-23.

RESEARCH REFERENCES

Practice References.

Blinka, Daniel D., and Imwinkelried, Edward J., Criminal Evidentiary Foundations (Michie)

George, Jr., B. James, Tymkovich, Timothy M., Coats, Nathan B., and Erickson, William H., United States Supreme Court Cases and Comments: Criminal Law and Procedure (Matthew Bender).

Mauriello, P. Thomas, Criminal Investigation Handbook (Matthew Bender).

Newton, Brent E., Practical Criminal Procedure: A Constitutional Manual, Second Edition (NITA).

Ordover, Abraham P., Criminal Law Advocacy (Matthew Bender).

Sacks, Garfield and Garfield, Criminal Defense Techniques (Matthew Bender Elite Products).

Schoenberg, Ronald L., Criminal Law Deskbook (Matthew Bender).

Shapiro, Jay, Criminal Practice Handbook, Fourth Edition (Michie).

Pretrial Motions in Criminal Prosecutions 4th Edition (LexisNexis).

Criminal Constitutional Law (Matthew Bender).

Mississippi Criminal and Traffic Law Manual (LexisNexis Law Enforcement).

JUDICIAL DECISIONS

1. In general.

No officer should make complaint before magistrate so as to charge suspect with capital or other felony until such officer has had sufficient opportunity to ascertain whether or not such complaint is reasonably justified, and committing magistrate has no jurisdiction to inquire into case until someone is willing to lodge formal charge against accused. Moore v. State, 207 Miss. 140, 41 So. 2d 368, 1949 Miss. LEXIS 324 (Miss.), cert. denied, 338 U.S. 844, 70 S. Ct. 93, 94 L. Ed. 516, 1949 U.S. LEXIS 1838 (U.S. 1949).

The words “any conservator of the peace” are limited to the judicial officials designated in this section [Code 1942, § 2568] and do not include a sheriff. Sheffield v. Reece, 201 Miss. 133, 28 So. 2d 745, 1947 Miss. LEXIS 378 (Miss. 1947).

The words “any conservator of the peace” in § 1321, Code of 1930 [Code 1942, § 2569], are limited to the persons designated as conservators of the peace in § 1320, Code of 1930 [Code 1942, § 2568], and does not embrace all civil officers referred to in Miss Const § 167. Martin v. State, 190 Miss. 32, 199 So. 98, 1940 Miss. LEXIS 188 (Miss. 1940).

A clerk of the circuit court is without power to issue a warrant for the arrest of a person charged with crime by an affidavit lodged with him, and, accordingly, the arrest of one for a felony on a warrant issued by a circuit clerk was illegal, and the bond under which he was set at liberty is void. Martin v. State, 190 Miss. 32, 199 So. 98, 1940 Miss. LEXIS 188 (Miss. 1940).

Cross References —

Money paid into the justice court clerk clearing account, see §9-11-18.

JUDICIAL DECISIONS

1. In general.

A deputy clerk, who was neither a judge nor a conservator of the peace, as defined by this section and §99-15-5, was without authority to issue an arrest warrant; accordingly, the warrant issued by him was invalid. Lanier v. State, 450 So. 2d 69, 1984 Miss. LEXIS 1695 (Miss. 1984).

An indigent defendant charged with aggravated assault and unable to make bail was improperly denied release on her own recognizance where the record was devoid of any consideration by the judicial officer of alternative forms of release and where there was no evidence that there was a substantial risk of nonappearance. On remand to consider whether a form of pretrial release other than money bail would adequately assure defendant’s presence at trial, the ABA minimum standards relating to pretrial release would serve as a guide to the judicial officer in making the release decision. Lee v. Lawson, 375 So. 2d 1019, 1979 Miss. LEXIS 2465 (Miss. 1979).

A defendant charged with armed robbery should be granted bail where the proof of his guilt was not evident or the presumption thereof great on the record. Wooton v. Bethea, 209 Miss. 374, 47 So. 2d 158, 1950 Miss. LEXIS 401 (Miss. 1950).

A clerk of the circuit court is without power to issue a warrant for the arrest of a person charged with crime by an affidavit lodged with him, and, accordingly, the arrest of one for a felony on a warrant issued by a circuit clerk was illegal, and the bond under which he was set at liberty is void. Martin v. State, 190 Miss. 32, 199 So. 98, 1940 Miss. LEXIS 188 (Miss. 1940).

OPINIONS OF THE ATTORNEY GENERAL

Justice court judge acting as conservator of peace has authority to set bond or release defendant on recognizance pending action of grand jury or circuit court but bond or recognizance must be returned to circuit court before its next term. Vess, March 18, 1994, A.G. Op. #94-0124.

RESEARCH REFERENCES

ALR.

Bail jumping after conviction, failure to surrender or to appear for sentencing, and the like, as contempt. 34 A.L.R.2d 1100.

Law Reviews.

1979 Mississippi Supreme Court Review: Criminal Law and Procedure. 50 Miss. L. J. 763, December, 1979.

Cross References —

Disposition of insane or feeble-minded offender brought before conservator of the peace, see §99-13-3.

Preliminary hearings, see Miss. Unif. Cir. & County Ct. Prac. R. 6.04.

JUDICIAL DECISIONS

1. In general.

A deputy clerk, who was neither a judge nor a conservator of the peace, as defined by §99-15-3 and this section, was without authority to issue an arrest warrant; accordingly, the warrant issued by him was invalid. Lanier v. State, 450 So. 2d 69, 1984 Miss. LEXIS 1695 (Miss. 1984).

The words “any conservator of the peace” are limited to the officials designated as conservators of the peace in Code 1942, § 2568, and do not include a sheriff. Sheffield v. Reece, 201 Miss. 133, 28 So. 2d 745, 1947 Miss. LEXIS 378 (Miss. 1947).

The words “any conservator of the peace” in § 1321, Code of 1930 [Code 1942, § 2569], are limited to the persons designated as conservators of the peace in § 1320, Code of 1930 [Code 1942, § 2568], and does not embrace all civil officers referred to in Miss Const § 167. Martin v. State, 190 Miss. 32, 199 So. 98, 1940 Miss. LEXIS 188 (Miss. 1940).

RESEARCH REFERENCES

ALR.

Withdrawal, discharge, or substitution of counsel in criminal case as ground for continuance. 73 A.L.R.3d 725.

Am. Jur.

5 Am. Jur. Trials, Pretrial Procedures and Motions, §§ 4 et seq.

Cross References —

Preliminary hearings, see Miss. Unif. Cir. & County Ct. Prac. R. 6.04.

JUDICIAL DECISIONS

1. In general.

The purpose of a search warrant is merely to authorize the officer to make the search, it does not charge any person with the crime of larceny of the goods, and there is no good reason to require that the affidavit and search warrant shall show the name of the owners of the property, and such a showing is neither necessary nor required by this section [Code 1942, § 2576]. Caldwell v. State, 194 So. 2d 878, 1967 Miss. LEXIS 1419 (Miss. 1967).

An affidavit and search warrant to recover stolen goods is not invalid for failure to state name of owner of goods. Wince v. State, 206 Miss. 189, 39 So. 2d 882, 1949 Miss. LEXIS 253 (Miss. 1949).

Justice of the peace is not required to mark an affidavit in support of a search warrant “filed” under Code 1942, § 1812, which provides that criminal cases are begun by “lodging” the affidavit with the justice of the peace. Wince v. State, 206 Miss. 189, 39 So. 2d 882, 1949 Miss. LEXIS 253 (Miss. 1949).

Failure of police officer making search for stolen articles pursuant to lawful affidavit and search warrant to make a return thereon does not invalidate search or make incompetent testimony as to articles recovered by the search. Wince v. State, 206 Miss. 189, 39 So. 2d 882, 1949 Miss. LEXIS 253 (Miss. 1949).

RESEARCH REFERENCES

ALR.

Distribution of truth of matters stated in affidavit in support of search warrant–modern cases. 24 A.L.R.4th 1266.

Lawyers’ Edition.

Requirement, under Federal Constitution, that person issuing warrant for arrest or search be neutral and detached magistrate. 32 L. Ed. 2d 970.

Editor’s Notes —

For provisions regarding the Mississippi Justice Information Center and maintenance and submission of records, fingerprints, photographs and other data, see §§45-27-1 et seq.

Editor’s Notes —

Laws of 1998, ch. 575, § 20, as amended by Laws of 1999, ch. 375, § 2, as amended by Laws of 2000, ch. 332, § 2, and as amended by Laws of 2001, ch. 375, § 2, which provided for the repeal of §99-15-15, was repealed by Laws of 2002, ch. 315, § 1.

Laws of 1998, ch. 575, § 21, provides:

“SECTION 21. (1) All new programs authorized under this Senate Bill No. 2239 shall be subject to the availability of funds specifically appropriated therefor by the Legislature during the 1998 Regular Session or any subsequent session. This act shall be codified but no amendment to a code section or repeal of a code section enacted by this Senate Bill No. 2239 shall take effect until the Legislature has funded any new programs authorized hereunder by line item appropriation, said line item appropriation to be certified by the Legislative Budget Office to the Secretary of State.

“(2) Notwithstanding any other provision of this act, the only actions authorized under this act to be funded shall be the hiring of the executive director, the hiring of a secretary for the executive director, expenses necessary for the operation of the commission and the executive director’s office and expenses incidental thereto, and providing per diem for the members of the commission unless other legal funding as authorized under this act other than by appropriation of the Legislature is available. The commission shall assess the feasibility and cost of the implementation of this act and report its findings to the Legislature not later than January 1, 1999. This subsection (2) shall stand repealed on July 1, 1999.”

Amendment Notes —

The 1999 amendment reenacted the section without change.

The 2000 amendment reenacted the section without change.

The 2001 amendment reenacted the section without change.

Cross References —

Compensation for counsel for indigents appointed as provided in this section, see §99-15-17.

Compensation of counsel in post-conviction relief cases involving the death penalty, see §99-15-18.

Reimbursement of country in certain cases for compensation of counsel, §99-15-19.

Appointment of interpreters in criminal cases for defendant declared indigent, see §99-17-7.

JUDICIAL DECISIONS

1. Generally.

2.-3. [Reserved for future use.]

4. Benefit of effective counsel.

5. Appellate counsel.

1. Generally.

When denying defendant’s request for funds to hire an expert, it was error to base the denial on defendant’s lack of indigency because the court found defendant was indigent when appointing counsel for defendant. Barksdale v. State, 176 So.3d 108, 2015 Miss. App. LEXIS 184 (Miss. Ct. App.), cert. denied, 178 So.3d 333, 2015 Miss. LEXIS 525 (Miss. 2015).

A trial judge’s remark at the beginning of trial that defense counsel was appointed, though not particularly commendable, did not amount to reversible error. Minnick v. State, 551 So. 2d 77, 1988 Miss. LEXIS 612 (Miss. 1988), rev'd, 498 U.S. 146, 111 S. Ct. 486, 112 L. Ed. 2d 489, 1990 U.S. LEXIS 6118 (U.S. 1990), overruled, Willie v. State, 585 So. 2d 660, 1991 Miss. LEXIS 454 (Miss. 1991).

A defendant’s right to counsel had not attached at the time of a pre-indictment line up where the record did not reflect that the defendant was or reasonably ought to have been charged with a crime prior to that time. Nixon v. State, 533 So. 2d 1078, 1987 Miss. LEXIS 2917 (Miss. 1987), cert. denied, 490 U.S. 1102, 109 S. Ct. 2458, 104 L. Ed. 2d 1012, 1989 U.S. LEXIS 2745 (U.S. 1989), overruled, Wharton v. State, 734 So. 2d 985, 1998 Miss. LEXIS 576 (Miss. 1998).

Refusal to grant continuance on third trial of prosecution for rape, which trial took place some two weeks after employment of new counsel for defendant, did not constitute a denial of defendant’s right to effect a representation by counsel contrary to the Fourteenth Amendment of the United States Constitution, where more than two years had elapsed since the commission of the offense, such counsel had advantage of voluminous and comprehensive briefs, records and opinions of the court in two previous trials and the assistance of two investigators to help them in preparing for the trial. McGee v. State, 40 So. 2d 160 (Miss.), cert. denied, 338 U.S. 805, 70 S. Ct. 77, 94 L. Ed. 487, 1949 U.S. LEXIS 1886 (U.S. 1949).

2.-3. [Reserved for future use.]

4. Benefit of effective counsel.

Defendant was not entitled to appointed counsel in pursuing further discretionary review following affirmance of conviction; thus, defendant could not claim ineffective assistance based on counsel’s failure to inform him of affirmance in time to file timely petition for rehearing. Harris v. State, 704 So. 2d 1286, 1997 Miss. LEXIS 47 (Miss.), cert. denied, 522 U.S. 827, 118 S. Ct. 90, 139 L. Ed. 2d 47, 1997 U.S. LEXIS 4857 (U.S. 1997).

5. Appellate counsel.

Inmate was not entitled to court-appointed counsel at his post-conviction relief evidentiary hearing and appeal under Miss. Code Ann. §§99-39-23(1) and99-15-15 as the record revealed no need for appointment of counsel for post-trial or appellate proceedings. Higginbotham v. State, 114 So.3d 9, 2012 Miss. App. LEXIS 595 (Miss. Ct. App. 2012), cert. denied, 116 So.3d 1072, 2013 Miss. LEXIS 317 (Miss. 2013).

A defendant is entitled to appointment of counsel in connection with the automatic review of a death sentence. Jackson v. State, 732 So. 2d 187, 1999 Miss. LEXIS 56 (Miss. 1999).

Defendant in criminal proceedings is not entitled to continued assistance of appointed defense counsel where defendant seeks certiorari. Harris v. State, 704 So. 2d 1286, 1997 Miss. LEXIS 47 (Miss.), cert. denied, 522 U.S. 827, 118 S. Ct. 90, 139 L. Ed. 2d 47, 1997 U.S. LEXIS 4857 (U.S. 1997).

Appointed counsel is not required by State Constitution, statutes, or rules at postconviction relief stages of the appellate process, even though there is a right to file such proceedings. Harris v. State, 704 So. 2d 1286, 1997 Miss. LEXIS 47 (Miss.), cert. denied, 522 U.S. 827, 118 S. Ct. 90, 139 L. Ed. 2d 47, 1997 U.S. LEXIS 4857 (U.S. 1997).

OPINIONS OF THE ATTORNEY GENERAL

The court appointed attorney may be reimbursed for fees and expenses incurred in representing the defendant up to the point in time that he was prohibited from practicing law; thereafter, he would be legally unable to represent the defendant and therefore, could not charge any fee for representation. Pouncy, Dec. 18, 1991, A.G. Op. #91-0868.

Judge has discretion in setting reasonable fees for counsel appointed for indigents under this section, and may award less than $1,000. Rogers, Jan. 8, 1993, A.G. Op. #92-0936.

If one of the public defenders has a conflict of interest in a case then another public defender should handle the case. If a conflict exists such that no public defender may represent the defendant then the justice court judge has authority to appoint counsel as allowed under this section. Burton, June 21, 1996, A.G. Op. #96-0385.

An indigent defendant charged with a misdemeanor is entitled to legal representation by the public defender where a substantial right may be affected, e.g., when the defendant faces imprisonment for any length of time. Belk, Jr., June 30, 2000, A.G. Op. #2000-0360.

RESEARCH REFERENCES

Am. Jur.

8 Am. Jur. Pl & Pr Forms, Rev, Criminal Procedure, Form 41.5, 42.

46 Am. Jur. Trials 571, Strategies for Enforcing the Right to Effective Representation.

Law Reviews.

Comment: Salvation Lies Within: Why the Mississippi Supreme Court Can and Should Step In to Solve Mississippi’s Indigent Defense Crisis, 74 Miss. L.J. 213, Fall, 2004.

Editor’s Notes —

The 1980 amendment increasing the amount of compensation to which appointed counsel is entitled is effective from and after October 1, 1980.

Cross References —

Applicability of this section to counsel appointed by court as substitute for, or in addition to, public defender, see §25-32-13.

Compensation of counsel in post-conviction relief cases involving the death penalty, see §99-15-18.

Reimbursement of county in certain cases for compensation of counsel, see §99-15-19.

Method of payment of compensation of counsel, see §99-15-21.

JUDICIAL DECISIONS

1. In general.

2. Constitutionality.

1. In general.

Defense counsel was sufficiently compensation where he was awarded $32.10 per hour for his actual overhead; the figure was based on an initial amount of $25.00 per hour for overhead and was adjusted upwards for inflation. Evans v. State, 725 So. 2d 613, 1997 Miss. LEXIS 389 (Miss. 1997), cert. denied, 525 U.S. 1133, 119 S. Ct. 1097, 143 L. Ed. 2d 34, 1999 U.S. LEXIS 1510 (U.S. 1999).

Attorney who received $11,000 from criminal defendant for trial representation, which amount was greater than that which he would have been entitled to by law ($2,000 for trial and appeal), was not entitled to receive more money from county for appellate representation, even though defendant was declared indigent after trial. Hunt v. State, 687 So. 2d 1154, 1996 Miss. LEXIS 426 (Miss. 1996).

Under statute which provides that defense counsel may receive maximum of $1,000 for criminal trial and $1,000 in appeal fees, additional monies for defense counsel’s overhead expenses may also to be paid. Hunt v. State, 687 So. 2d 1154, 1996 Miss. LEXIS 426 (Miss. 1996).

A justice court is a “court of record” as contemplated by this section; thus, appointed counsel who was representing indigent defendants at preliminary hearings in justice court was not limited to a fee of $200 per case plus out-of-pocket expenses. Gibson v. Board of Supervisors, 656 So. 2d 312, 1995 Miss. LEXIS 275 (Miss. 1995).

This section, which limits the compensation which an attorney may receive for the representation of an indigent, does not amount to an unconstitutional taking of an attorney’s property, deprive indigent defendants of the effective assistance of counsel, or violate the equal protection clause. The statute allows for “reimbursement of actual expenses,” which can be interpreted to include reimbursement for all actual costs to the lawyer for the purpose of keeping his or her door open to handle the case; there is a rebuttable presumption that a court-appointed attorney’s actual overhead within the statute is $25 per hour. This construction of this section will allow an attorney to receive $1,000 in profit plus his or her actual expenses. A rebuttal presumption arises that the actual cost contemplated by the statute is the average of $25 per hour; this figure may be subject to change when the 1988 survey conducted by the Mississippi State Bar is updated. The trial court is bound by the $25 per hour figure only when proof to the contrary is not forthcoming. The hours submitted by an attorney are subject to scrutiny under a reasonable and necessary standard. Specific expenses must be approved by the court before the attorney incurs the expenses. Court approved expenses include, but are not limited to, such items as the cost of an investigator, the cost of an expert witness, and a trip to interview witnesses. This interpretation of the statute avoids unconstitutionality on all grounds. Wilson v. State, 574 So. 2d 1338, 1990 Miss. LEXIS 842 (Miss. 1990).

Although this section allows for the appointment of 2 attorneys in capital cases, a defense counsel’s withdrawal of his motion for the appointment of additional counsel did not constitute ineffective assistance of counsel where the defense counsel withdrew the motion because he had successfully developed the case and the case was not so complex that one attorney could not provide a legally sufficient defense. Marks v. State, 532 So. 2d 976, 1988 Miss. LEXIS 425 (Miss. 1988).

The trial court in a capital murder prosecution did not err in denying defendant’s attorneys a reasonable amount by way of expenses in order to conduct an investigation into the mood and attitude of the community toward defendant in the furtherance of his motion for change of venue, notwithstanding the provisions of this section, where defendant had failed to outline any specific cost for the investigation. Billiot v. State, 454 So. 2d 445, 1984 Miss. LEXIS 1777 (Miss. 1984), cert. denied, 469 U.S. 1230, 105 S. Ct. 1232, 84 L. Ed. 2d 369, 1985 U.S. LEXIS 171 (U.S. 1985).

This section does not mandate that two attorneys be appointed to represent an indigent defendant in a capital case, but merely provides that two attorneys may be appointed. Smith v. State, 445 So. 2d 227, 1984 Miss. LEXIS 1592 (Miss. 1984).

The matter of compensation of an attorney appointed to represent an indigent defendant is a matter resting with the legislature as a legislative function. Young v. State, 255 So. 2d 318, 1971 Miss. LEXIS 1286 (Miss. 1971).

An attorney’s fee in the amount of $150, allowed under former Code 1942, § 2505 at the time of the trial, was not so inadequate as to be tantamount to a denial of due process of law as provided by the constitutions of the United States and of the State of Mississippi. Young v. State, 255 So. 2d 318, 1971 Miss. LEXIS 1286 (Miss. 1971).

2. Constitutionality.

County was properly denied declaratory judgment that Miss. Code Ann. §§25-32-7, and99-15-17, requiring counties to provide legal services for indigent criminal defendants violated Miss. Const. art. III, § 26 because the county did not show specific examples of when public defenders’ legal representation fell below the objective standard of professional reasonableness. Quitman County v. State, 910 So. 2d 1032, 2005 Miss. LEXIS 438 (Miss. 2005).

OPINIONS OF THE ATTORNEY GENERAL

The court appointed attorney may be reimbursed for fees and expenses incurred in representing the defendant up to the point in time that he was prohibited from practicing law; thereafter, he would be legally unable to represent the defendant and therefore, could not charge any fee for representation. Pouncy, Dec. 18, 1991, A.G. Op. #91-0868.

In context of this section, “court of record” is generic term, and refers to court where there is record for use on appeal. Rogers, Jan. 8, 1993, A.G. Op. #92-0936.

When a county public defender is appointed to represent a defendant on felony charges in a municipal court preliminary hearing, the court should allow the public defender to withdraw if the felony charges are reduced to misdemeanors, the court should then determine if a court appointed attorney is appropriate on the misdemeanor charges, and if the public defender is appointed to represent the defendant on the misdemeanor charges, then the public defender is entitled to additional compensation from the municipality under this section. Tucker, Aug. 15, 1997, A.G. Op. #97-0500.

A municipal court is a “court of record” for purposes of Section 99-15-17 and, therefore, attorney’s fees in excess of $200.00 plus out-of-pocket may be awarded in felony cases being heard in municipal court. Smith, June 9, 2006, A.G. Op. 06-0225.

RESEARCH REFERENCES

ALR.

Right of court-appointed attorney to contract with his indigent client for fee. 43 A.L.R.3d 1426.

Validity and construction of state statute or court rule fixing maximum fees for attorney appointed to represent indigent. 3 A.L.R.4th 576.

Validity, construction, and application of state recoupment statutes permitting state to recover counsel fees expended for benefit of indigent criminal defendants. 39 A.L.R.4th 597.

Right of indigent defendant in state criminal case to assistance of investigators. 81 A.L.R.4th 259.

Right of indigent defendant in state criminal case to assistance of psychiatrist or psychologist. 85 A.L.R.4th 19.

Necessity or Propriety of Court’s Provision of Cocounsel to Criminal Defendant Who Is Already Represented by Counsel – State Prosecutions. 83 A.L.R.6th 465.

Propriety of order under subsection (f) of Criminal Justice Act of 1964 (18 USCS § 3006(A)(f)) directing payment by or on behalf of party for services of court-appointed counsel. 51 A.L.R. Fed. 561.

Am. Jur.

2B Am. Jur. Pl & Pr Forms (Rev), Attorneys at Law, Form 270 (complaint, petition, or declaration against county for writ of mandamus to compel county to pay costs of representing indigent defendant in criminal action, court revoked finding of indigency subsequent to representation).

8 Am. Jur. Pl & Pr Forms, Rev, Criminal Procedure, Form 43.

Law Reviews.

1978 Mississippi Supreme Court Review: Criminal Law and Procedure. 50 Miss. L. J. 59, March, 1979.

Morris, Constitutional law: validity of attorney fee caps in indigent cases: Mississippi’ challenge. 9 Miss. College L. R. 373, Spring, 1989.

Comment: Salvation Lies Within: Why the Mississippi Supreme Court Can and Should Step In to Solve Mississippi’s Indigent Defense Crisis, 74 Miss. L.J. 213, Fall, 2004.

Editor’s Notes —

Laws of 2000, ch. 569, § 1, provides:

“SECTION 1. Sections 1 through 18 of this act may be cited as the ‘Mississippi Capital Post-Conviction Counsel Act.’ ”

Sections 1 through 10 of Laws of 2000, ch. 569 are codified at Article 3 of Chapter 39 of this title. Sections 11 through 18 of ch. 569 contain §§99-19-105,99-39-5,99-39-23,99-39-27,99-15-18,99-39-28,99-19-106, and the repeal of §99-19-49.

Amendment Notes —

The 2001 amendment designated former (2) as present (2) and (5); deleted “Money shall not be paid to court appointed counsel unless either (a) a petition is timely filed, or (b) if a petition is not filed, a notice is timely filed stating that counsel has reviewed the record and found no meritorious claim” from the end of present (2); inserted present (3) and (4), and redesignated former (3) as present (6).

Cross References —

Method of payment of compensation of counsel, see §99-15-21.

Mississippi Uniform Post-Conviction Collateral Relief Act, see §§99-39-1 et seq.

Mississippi Capital Post-Conviction Counsel Act, see §§99-39-101 et seq.

Special Capital Post-Conviction Counsel Fund created, see §99-39-117.

RESEARCH REFERENCES

Law Reviews.

Comment: Salvation Lies Within: Why the Mississippi Supreme Court Can and Should Step In to Solve Mississippi’s Indigent Defense Crisis, 74 Miss. L.J. 213, Fall, 2004.

Editor’s Notes —

Section 7-7-2 provides that the words “State Auditor of Public Accounts,” “State Auditor” and “Auditor” appearing in the laws of this state in connection with the performance of Auditor’s functions shall mean the State Fiscal Officer whenever they appear. Section 27-104-6 provides that wherever the term “State Fiscal Officer” appears in any law it shall mean “Executive Director of the Department of Finance and Administration.”

Cross References —

Method of payment of compensation of counsel, see §99-15-21.

OPINIONS OF THE ATTORNEY GENERAL

The district attorney must determine the amount of expenses incurred by a pretrial intervention program, and such expenses will be made a part of the initial agreement between the district attorney and the offender; the terms of such an agreement must be approved by the court having jurisdiction. Anderson, August 27, 1999, A.G. Op. #99-0421.

The Department of Corrections (DOC) should contact the district attorneys to inform them of the expenses that are being incurred as a result of the DOC field support personnel supervising offenders in pretrial intervention programs; the district attorney may then put such expenses in the initial agreement between the D.A. and the offender and may stipulate the method and manner of paying those expenses, i.e., directly to MDOC. Anderson, August 27, 1999, A.G. Op. #99-0421.

Payments made by an offender in a pretrial intervention program may be used to partially fund the salary of the assistant district attorney having pretrial intervention program duties. Knochel, Feb. 24, 2005, A.G. Op. 05-0090.

Where the court has ordered a defendant pay a fine and let him out of jail, he should not be imprisoned during the time allotted for payment of the fine. Beckett, Oct. 20, 2006, A.G. Op. 06-0482.

RESEARCH REFERENCES

ALR.

Right of indigent defendant in state criminal case to assistance of investigators. 81 A.L.R.4th 259.

Am. Jur.

2B Am. Jur. Pl & Pr Forms (Rev), Attorneys at Law, Form 270 (complaint, petition, or declaration against county for writ of mandamus to compel county to pay costs of representing indigent defendant in criminal action, court revoked finding of indigency subsequent to representation).

Cross References —

Appearance by criminal defendant held in custody or confinement by means of closed-circuit television, see §99-1-23.

Arraignment, see Miss. Unif. Cir. & County Ct. Prac. R. 8.01.

Pre-trial publicity regarding the failure of the defendant to make any statement, see Miss. Unif. Cir. & County Ct. Prac. R. 9.01.

Omnibus hearings, see Miss. Unif. Cir. & County Ct. Prac. R. 9.08.

JUDICIAL DECISIONS

1. Generally.

2. Plea by attorney.

3. Waiver of arraignment.

4. Withdrawal of plea.

1. Generally.

Although a defendant was entitled to a preliminary hearing, he was not prejudiced by the lack of one where he was afforded ample opportunity through his pretrial hearings to confront the State’s witnesses. Rogers v. State, 599 So. 2d 930, 1992 Miss. LEXIS 123 (Miss.), overruled in part, Mayfield v. State, 612 So. 2d 1120, 1992 Miss. LEXIS 861 (Miss. 1992).

One charged with a felony must plead to an indictment in person. Mareno v. State, 226 So. 2d 905, 1969 Miss. LEXIS 1331 (Miss. 1969).

This section [Code 1942, § 2504] precludes a nolo contendere plea in a felony case. Bruno v. Cook, 224 So. 2d 567, 1969 Miss. LEXIS 1294 (Miss. 1969).

Arraignment and plea are not jurisdictional under this section [Code 1942, § 2504] and failure of the record to show them will not cause reversal where the objection was not made as required by law. Arbuckle v. State, 80 Miss. 15, 31 So. 437, 1902 Miss. LEXIS 219 (Miss. 1902).

Before a person charged with crime can be put upon his trial, he must plead to the indictment or the issue must be made up for him. Sartorious v. State, 24 Miss. 602, 1852 Miss. LEXIS 110 (Miss. 1852).

2. Plea by attorney.

One charged with a felony must plead to an indictment in person, and a plea of “guilty” entered by his attorney is invalid. Mareno v. State, 226 So. 2d 905, 1969 Miss. LEXIS 1331 (Miss. 1969).

3. Waiver of arraignment.

A defendant effectively waived his right to a preliminary hearing when he agreed to, and executed with sureties, a recognizance bond. Joseph v. State, 524 So. 2d 576, 1988 Miss. LEXIS 204 (Miss. 1988).

In a prosecution for murder the court properly arraigned the defendant by entering for him a plea of “not guilty” when he stood mute in response to charges read to him by the court, where defendant’s failure to reply to any of the charges in the indictment was on the advice of counsel due to the possibility that the arraignment might be improper and any pleas entered might constitute a waiver. Crossley v. State, 420 So. 2d 1376, 1982 Miss. LEXIS 2253 (Miss. 1982).

Defendant may waive arraignment either expressly or impliedly. Williams v. State, 205 Miss. 515, 39 So. 2d 3, 1949 Miss. LEXIS 448 (Miss. 1949).

Action of court in placing defendant, without arraignment, on trial for felonious assault with a deadly weapon with intent to steal and in entering a plea of “not guilty” on his behalf is not error, when defendant impliedly waives his right to arraignment by unjustly feigning insanity at time of trial as the jury found and standing mute when the trial court tendered an arraignment. Williams v. State, 205 Miss. 515, 39 So. 2d 3, 1949 Miss. LEXIS 448 (Miss. 1949).

Where defendant was tried on two indictments for felonious assault on two persons and the state elected to ask for a verdict on only one of them, the fact that defendant was not arraigned on such indictment is of no consequence since he is deemed to have waived any objections thereto by participating fully in the trial in all of its aspects without objection to his arraignment. Lowe v. State, 201 Miss. 618, 30 So. 2d 53, 1947 Miss. LEXIS 428 (Miss. 1947).

An arraignment is not jurisdictional and may be waived by the defendant. Thomas v. State, 200 Miss. 220, 26 So. 2d 469, 1946 Miss. LEXIS 286 (Miss. 1946).

An accused employing capable and reputable attorneys present with him at every step taken after return of the indictment, waives objection that he was at no time arraigned, if he is present and takes any part at all in the trial without raising the point except to move for a directed verdict after the state rests. Thomas v. State, 200 Miss. 220, 26 So. 2d 469, 1946 Miss. LEXIS 286 (Miss. 1946).

Arraignment is waived where defendant takes part in the trial without objection as to the arraignment. Thomas v. State, 200 Miss. 220, 26 So. 2d 469, 1946 Miss. LEXIS 286 (Miss. 1946); Lowe v. State, 201 Miss. 618, 30 So. 2d 53, 1947 Miss. LEXIS 428 (Miss. 1947).

4. Withdrawal of plea.

Negro involved in a shooting scrape who, without benefit of counsel at arraignment under indictments charging manslaughter and assault and battery with intent to kill, stated that he was guilty of the shooting, whereupon the court entered orders that defendant pleaded guilty to the indictment, should have been permitted to withdraw the pleas of guilty made the following day before sentence supported by affidavit and uncontradicted evidence that defendant did not understand that he was pleading guilty to the charges in the indictment and that he had a meritorious defense, even though the defendant responded at the arraignment that he knew what he was doing and that he did not want a lawyer. Pittman v. State, 198 Miss. 797, 23 So. 2d 685, 1945 Miss. LEXIS 249 (Miss. 1945).

RESEARCH REFERENCES

ALR.

Presentence withdrawal of plea of nolo contendere or non vult contendere under state law – Awareness of collateral consequences of plea, and competency to enter plea. 10 A.L.R.6th 265.

Propriety of sentencing judge’s imposition of harsher sentence than offered in connection with plea bargain rejected or withdrawn plea by defendant – State cases. 11 A.L.R.6th 237.

Presentence withdrawal of plea of nolo contendere or non vult contendere under state law – Assertion or finding of innocence and defendant’s knowledge or waiver of other particular rights at time of plea. 12 A.L.R.6th 389.

Presentence withdrawal of plea of nolo contendere or non vult contendere under state law – Particular circumstances as constituting grounds for withdrawal, excluding issues of knowledge, factual basis, competency, evidence, defenses, sentencing and punishment, and ineffective assistance of counsel. 13 A.L.R.6th 603.

Presentence withdrawal of plea of nolo contendere or non vult contendere under state law – Newly discovered or available evidence, and possible defense. 14 A.L.R.6th 517.

Am. Jur.

21 Am. Jur. 2d, Criminal Law § 560.

JUDICIAL DECISIONS

1. In general.

Indictment’s failure to charge venue was a facially apparent defect that petitioner waived by not objecting before trial. The indictment’s apparent venue defect did not void petitioner’s guilty plea because sufficient evidence established that the crime occurred in Lafayette County. Pegues v. State, 65 So.3d 351, 2011 Miss. App. LEXIS 364 (Miss. Ct. App. 2011).

Defendant’s offense was charged to have been committed in Lee County, which was in the First Circuit Court District, Miss. Code Ann. §9-7-5, and any other circuit court in the First Circuit Court District could have accepted defendant’s guilty plea, Miss. Code Ann. §99-15-24; the Monroe County Circuit Court was in the First Circuit Court District, Miss. Code Ann. §9-7-5, and therefore the Monroe County Circuit Court was an appropriate venue for defendant’s guilty plea to the Lee County charge, and thus all of defendant’s arguments dependent on the impropriety of the venue for the plea were without merit. Garner v. State, 944 So. 2d 934, 2006 Miss. App. LEXIS 921 (Miss. Ct. App. 2006), cert. dismissed, 951 So. 2d 563, 2007 Miss. LEXIS 534 (Miss. 2007).

Where defendant answered questions from trial judge under oath, on the record, and in presence of counsel, during his plea hearing denying any coercion in pleading guilty, defendant’s claim that his plea was involuntary was properly rejected. Bradley v. State, 845 So. 2d 756, 2003 Miss. App. LEXIS 432 (Miss. Ct. App. 2003).

RESEARCH REFERENCES

ALR.

Place of holding sessions of trial court as affecting validity of its proceedings. 18 A.L.R.3d 572.

Venue in homicide cases where crime is committed partly in one county and partly in another. 73 A.L.R.3d 907.

Where is embezzlement committed for purposes of territorial jurisdiction or venue. 80 A.L.R.3d 514.

Venue in rape cases where crime is committed partly in one place and partly in another. 100 A.L.R.3d 1174.

Presentence withdrawal of plea of nolo contendere or non vult contendere under state law – Awareness of collateral consequences of plea, and competency to enter plea. 10 A.L.R.6th 265.

Propriety of sentencing judge’s imposition of harsher sentence than offered in connection with plea bargain rejected or withdrawn plea by defendant – State cases. 11 A.L.R.6th 237.

Presentence withdrawal of plea of nolo contendere or non vult contendere under state law – Assertion or finding of innocence and defendant’s knowledge or waiver of other particular rights at time of plea. 12 A.L.R.6th 389.

Presentence withdrawal of plea of nolo contendere or non vult contendere under state law – Particular circumstances as constituting grounds for withdrawal, excluding issues of knowledge, factual basis, competency, evidence, defenses, sentencing and punishment, and ineffective assistance of counsel. 13 A.L.R.6th 603.

Presentence withdrawal of plea of nolo contendere or non vult contendere under state law – Newly discovered or available evidence, and possible defense. 14 A.L.R.6th 517.

Am. Jur.

21 Am. Jur. 2d, Criminal Law §§ 555 et seq.

CJS.

22 C.J.S., Criminal Law §§ 141 et seq.

Cross References —

Arraignment, see Miss. Unif. Cir. & County Ct. Prac. R. 8.01.

Entry of guilty pleas in vacation, see Miss. Unif. Cir. & County Ct. Prac. R. 8.04.

Time of sentencing, see Miss. Unif. Cir. & County Ct. Prac. R. 11.01.

Sentencing, see Miss. Unif. Cir. & County Ct. Prac. R. 11.01.

JUDICIAL DECISIONS

1. In general.

2. Waiver of rights by plea.

3. —Exceptions.

4. Withdrawing guilty plea.

5. Rescinding plea bargain agreement.

6. Plea to crime not charged in indictment.

1. In general.

Where defendant answered questions from trial judge under oath, on the record, and in presence of counsel, during his plea hearing denying any coercion in pleading guilty, defendant’s claim that his plea was involuntary was properly rejected. Bradley v. State, 845 So. 2d 756, 2003 Miss. App. LEXIS 432 (Miss. Ct. App. 2003).

Guilty plea is voluntary if defendant knows what elements are in charge against him or her, including understanding of charges and its relation to defendant, effect of plea, and possible sentence. Taylor v. State, 682 So. 2d 359, 1996 Miss. LEXIS 532 (Miss. 1996).

Complete record should be made of plea proceeding to ensure that defendant’s plea was entered voluntarily. Taylor v. State, 682 So. 2d 359, 1996 Miss. LEXIS 532 (Miss. 1996).

Judge is required by Uniform Criminal Rules of Circuit Court Practice, Rule 3.03 to “address” accused and determine that he understands nature and consequences of plea of guilty, including maximum and minimum penalties. Wolfe v. Puckett, 780 F. Supp. 408, 1991 U.S. Dist. LEXIS 18019 (N.D. Miss. 1991), aff'd, 998 F.2d 1014, 1993 U.S. App. LEXIS 19452 (5th Cir. Miss. 1993).

Before a trial court may accept a guilty plea, it must have before it substantial evidence that the accused did commit the legally defined offense to which he or she is offering the plea. What facts must be shown are a function of the definition of the crime and its assorted elements. A factual showing does not fail merely because it does not flush out the details which might be brought forth at trial. Rules of evidence may be relaxed at plea hearings, and fair inference favorable to guilt may facilitate the finding. There must be enough that the court may say with confidence that the prosecution could prove the accused guilty of the crime charged. Thus, there was an adequate factual basis for a defendant’s plea of guilty to murder, even though the defendant advised the trial court at the plea hearing that he “didn’t do the shooting,” where the defendant admitted that he was at the crime scene, the prosecution’s summary of the proof showed guilt and was made in the defendant’s presence, and, even taking the defendant’s version of the facts, it was fairly inferrable that a third party shot and killed the victim under circumstances where the defendant was an accessory before the fact. Corley v. State, 585 So. 2d 765, 1991 Miss. LEXIS 591 (Miss. 1991).

A guilty plea must be made voluntarily in order to satisfy the defendant’s constitutional rights. A plea is voluntary if the defendant knows what the elements are of the charge against him or her, including an understanding of the charge and its relation to him or her, what effect the plea will have, and what the possible sentence might be because of the plea. Where a defendant is not informed of the maximum and minimum sentences he or she might receive, his or her guilty plea has not been made either voluntarily or intelligently. A complete record should be made to ensure that the defendant’s guilty plea is voluntary. While a transcript of the proceeding is essential, other offers of clear and convincing evidence which prove that the defendant entered a guilty plea voluntarily are sufficient. For example, where an evidentiary hearing has established that a defendant’s guilty plea was entered voluntarily, the fact that a record was not made at the time the plea was entered will not be fatal. Wilson v. State, 577 So. 2d 394, 1991 Miss. LEXIS 179 (Miss. 1991).

The fact that a defendant pled guilty to armed robbery in exchange for a 7-year sentence did not broaden the circuit court’s sentencing authority; it was still statutorily limited. Mitchell v. State, 561 So. 2d 1037, 1990 Miss. LEXIS 258 (Miss. 1990).

Before a person may plead guilty to a felony, he or she must be informed of his or her rights, the nature and consequences of the act he or she contemplates, and any other relevant facts and circumstances. Thus, a defendant who was not advised of the mandatory minimum sentence for the charge to which he was pleading, and who was ignorant of the mandatory minimum sentence at the time he plead guilty, was entitled to withdraw his plea of guilty, enter a plea of not guilty and be given a trial, since the failure to advise the defendant of the minimum penalty rendered his guilty plea involuntary as a matter of law. Vittitoe v. State, 556 So. 2d 1062, 1990 Miss. LEXIS 39 (Miss. 1990).

2. Waiver of rights by plea.

A valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial, including the right to a speedy trial, whether of constitutional or statutory origin. Anderson v. State, 577 So. 2d 390, 1991 Miss. LEXIS 180 (Miss. 1991).

A guilty plea operates to waive the defendant’s privilege against self-incrimination, the right to confront and cross-examine the prosecution’s witnesses, the right to a jury trial, and the right that the prosecution prove each element of the offense beyond a reasonable doubt. Jefferson v. State, 556 So. 2d 1016, 1989 Miss. LEXIS 485 (Miss. 1989).

3. —Exceptions.

The entry of a knowing and voluntary guilty plea waives all other defects or insufficiencies in the indictment, with only 2 exceptions; the principle exception to the general rule is that the failure of the indictment to charge a criminal offense or, more specifically, to charge an essential element of a criminal offense, is not waived, and additionally, a guilty plea does not waive subject matter jurisdiction. Jefferson v. State, 556 So. 2d 1016, 1989 Miss. LEXIS 485 (Miss. 1989).

4. Withdrawing guilty plea.

A defendant who was not eligible for a suspended sentence or probation because he had previously been convicted of a felony would be permitted to withdraw his guilty plea where he pled guilty because of a plea bargain which included a recommendation by the State that he be given a suspended sentence. Robinson v. State, 585 So. 2d 757, 1991 Miss. LEXIS 604 (Miss. 1991).

5. Rescinding plea bargain agreement.

A district attorney did not have unilateral authority to rescind a plea bargain agreement on the basis that the defendant had lied to him about certain key information even though the language of the “memorandum of understanding” gave the district attorney the right to rescind the agreement at any point if the defendant was untruthful. The question of whether a defendant failed to perform a condition precedent is an issue not to be finally determined unilaterally by the government, but by the court on the basis of adequate evidence. Danley v. State, 540 So. 2d 619, 1988 Miss. LEXIS 640 (Miss. 1988).

6. Plea to crime not charged in indictment.

A defendant waived his right to indictment for grand larceny, and thus his conviction for grand larceny could be used subsequently to sentence the defendant as a habitual offender, where the defendant was originally indicted for the burglary of 2 automobiles, the defendant appeared before the circuit court and testified under oath that he understood that he was charged with burglary of an automobile in each case, that he wished to withdraw his pleas of not guilty and enter pleas of guilty to related charges of grand larceny, that he understood the nature of the offense of grand larceny, and that he in fact committed those crimes. Jefferson v. State, 556 So. 2d 1016, 1989 Miss. LEXIS 485 (Miss. 1989).

A plea of guilty to a crime separate and distinct from the crime charged in the indictment and not a constituent offense thereof is void and of no effect since the Mississippi Constitution requires indictment by a grand jury before a prosecution may be had. Grayer v. State, 519 So. 2d 438, 1988 Miss. LEXIS 52 (Miss. 1988).

RESEARCH REFERENCES

ALR.

Accused’s right to sentencing by same judge who accepted guilty plea entered pursuant to plea bargain. 3 A.L.R.4th 1181.

Judge’s participation in plea bargaining negotiations as rendering accused’s guilty plea involuntary. 10 A.L.R.4th 689.

Right of prosecutor to withdraw from plea bargain prior to entry of plea. 16 A.L.R.4th 1089.

Guilty plea safeguards as applicable to stipulation allegedly amounting to guilty plea in state criminal trial. 17 A.L.R.4th 61.

Sufficiency of court’s statement, before accepting plea of guilty, as to waiver of right to jury trial being a consequence of such plea. 23 A.L.R.4th 251.

Admissibility of confession or other statement made by defendant as affected by delay in arraignment–modern state cases. 28 A.L.R.4th 1121.

Guilty plea as affected by fact that sentence contemplated by plea bargain is subsequently determined to be illegal or unauthorized. 87 A.L.R.4th 384.

Degree of mental competence, required of accused who pleads guilty, sufficient to satisfy requirement, of Rule 11 of Federal Rules of Criminal Procedure, that guilty pleas be made voluntarily and with understanding. 31 A.L.R. Fed. 375.

Practice References.

G. Nicholas Herman, Plea Bargaining (Michie).

Joint Legislative Committee Note —

Section 6 of ch. 463, Laws of 2015, effective July 1, 2015 (approved April 20, 2015), amended this section. Section 1 of ch. 478, Laws of 2015, effective July 1, 2015 (approved April 22 2015) also amended this section. As set out above, this section reflects the language of both amendments pursuant to Section 1-1-109 which gives the Joint Legislative Committee on Compilation, Revision, and Publication of Legislation authority to integrate amendments so that all versions of the same code section enacted within the same legislative session may become effective. The Joint Committee on Compilation, Revision, and Publication of Legislation ratified the integration of these amendments as consistent with the legislative intent at the August 17, 2015, meeting of the Committee.

Section 4 of Chapter 362, Laws of 2019, effective upon passage (approved March 21, 2019), amended this section. Section 41 of Chapter 466, Laws of 2019, effective July 1, 2019 (approved April 16, 2019), also amended this section. As set out above, this section reflects the language of both amendments pursuant to Section 1-1-109 which gives the Joint Legislative Committee on Compilation, Revision, and Publication of Legislation authority to integrate amendments so that all versions of the same code section enacted within the same legislative session may become effective. The Joint Committee on Compilation, Revision, and Publication of Legislation ratified the integration of these amendments as consistent with the legislative intent at the August 12, 2019, meeting of the Committee.

Editor's Note —

Laws of 2019, ch. 466, § 1 provides as follows:

“SECTION 1. This act shall be known and may be cited as the 'Criminal Justice Reform Act.' ”

Amendment Notes —

The 2003 amendment inserted the second sentence in (1); rewrote (2); inserted (3) and redesignated former (3) through (5) as present (4) through (6); substituted “subsection (2)” for “subdivision (2)” in (4); and in (5), inserted “Upon petition therefor” at the beginning and made a minor stylistic change.

The 2004 amendment added (2)(b), redesignated former (2) and (2)(a) through (2)(e) as present (2)(a) and (2)(a)(i) through (2)(a)(v).

The 2007 amendment, in (1), deleted “Mississippi Code of 1972” following “Section 41-29-139(a)(1),” substituted “Section 41-29-139(c)(2)(F) and (G)” for “Section 41-29-139(c)(2)(D), Mississippi Code of 1972,” and made a minor stylistic change.

The 2008 amendment inserted “or a violation of Section 97-11-31” in the first sentence of (1).

The 2012 amendment, in (1), designated the former first and second sentences as (a) and (b), respectively, added (c), and designated the former third and fourth sentences as (d); inserted “successful completion of a program designed to bring about the cessation of domestic abuse” in (2)(a)(iv); and made minor stylistic changes.

The 2014 amendment, in (1)(a), inserted “a crime of violence as defined in Section 97-3-2” and “made on or after July 1, 2014”; in (1)(c), inserted “Notwithstanding Section 97-3-2,” at the beginning of the sentence; in (1)(d), deleted “or having ever been convicted of a felony” following “under the provisions of this section,” inserted “for a repeat offense” and substituted “charged with the offense of trafficking of a controlled substance as provided in Section 41-29-139(f)” for “such person has been charged (i) with an offense pertaining to the sale, barter, transfer, manufacture, distribution or dispensing of a controlled substance, or the possession with intent to sell, barter, transfer, manufacture, distribute or dispense a controlled substance, as provided in Section 41-29-139(a)(1), except for a charge under said provision when the controlled substance involved is one (1) ounce or less of marijuana; (ii) with an offense pertaining to the possession of one (1) kilogram or more of marijuana as provided in Section 41-29-139(c)(2)(F) and (G); or (iii) with an offense under the Mississippi Implied Consent Law.”

The first 2015 amendment (ch. 463) substituted “an effective evidence-based program or a properly controlled pilot study designed to contribute to the evidence-based research literature on programs targeted at reducing recidivism. Such program or pilot study may be community based or institutionally based and should address risk factors identified in a formal assessment of the offender's risks and needs” for “a regimented inmate discipline program” in (2)(b).

The second 2015 amendment (ch. 478), in the first sentence of (1)(c), substituted “paragraph (a) of this subsection (1)” for “Section 97-3-2” and deleted “or aggravated domestic violence as defined in Section 97-3-7(4)” following “as defined in Section 99-3-7(5)”; added “or if charged with an offense under the Mississippi Implied Consent Law. Violations under the Mississippi Implied Consent Law can only be nonadjudicated under the provisions of Section 63-11-30” at the end of (1)(d); and deleted (6), which read: “This section shall take effect and be in force from and after March 31, 1983.”

The first 2019 amendment (ch. 362), in (1)(a), inserted “or crimes in which a person…his or her public office or employment” and made a related change.

The second 2019 amendment (ch. 466) added “or the person was found not guilty at trial” at the end of (5), and made a related change.

Cross References —

Imposition and collection of separate laboratory analysis fee in addition to any other assessments and costs imposed by statute on every individual nonadjudicated on felony or misdemeanor case under this section, see §45-1-29.

Authority for use of persons convicted of an offense for work on state highway projects, see §65-1-8.

Provisions for relief for persons who pled guilty within six months prior to March 31, 1983, see §99-15-57.

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any felony violation, see §99-19-73.

Mississippi implied consent law, see §63-11-1 et seq.

JUDICIAL DECISIONS

1. In general.

2. Malicious prosecution.

3. Post-conviction relief.

4. Judicial Misconduct.

1. In general.

Petitioner’s criminal records pertaining to the two counts against the petitioner which were remanded to file based on the petitioner’s guilty plea to one other count were eligible for expungement when the petitioner subsequently received a full, complete, and unconditional pardon from the Governor of Mississippi. However, there was no statutory basis for expungement of the record of the criminal conviction for which the petitioner was pardoned. Polk v. State, 150 So.3d 967, 2014 Miss. LEXIS 497 (Miss. 2014).

Trial court properly denied movant’s motion to expunge a drunk driving conviction from movant’s record as Miss. Code Ann. §99-15-26 expressly prohibited expungement for persons such as movant who were charged with an offense under the Mississippi Implied Consent Law; the doctrine of equitable expungement was not available to movant because circuit courts lacked the inherent power to order expungement, and thus, the requirements of §99-15-26 controlled. Eubanks v. State, 53 So.3d 846, 2011 Miss. App. LEXIS 65 (Miss. Ct. App. 2011).

Had the State had sufficient evidence to retry the citizen for his 1979 arrest, it should have done so within the next 25 years, and the appellate court found that the trial court was without discretion to deny his motion to expunge the 1979 arrest following the 2003 amendment to Miss. Code Ann. §99-15-26. A.E.W. v. State, 925 So. 2d 136, 2006 Miss. App. LEXIS 110 (Miss. Ct. App. 2006).

Mississippi Supreme Court has the power to render immediate sanctions for admitted felonious conduct under the non-adjudication of guilt statutory procedure of Miss. Code Ann. §99-15-26 and Miss. R. Disc. St. Bar 6, without a hearing by a complaint tribunal; however, the Supreme Court does not extend that rule to include admitted felonious conduct under the Mississippi Pretrial Intervention Act, Miss. Code Ann. §§99-15-101, et seq. The critical difference between the non-adjudication statute and the Act is that the former requires the entry of a sworn guilty plea before the circuit or county court while the latter does not, and since the attorney had not offered a guilty plea entered under oath before the circuit court, nor had the circuit court entered an order with respect the attorney’s felony level offense, disbarment proceedings were properly stayed until such time as the attorney was able to complete the Mississippi Pretrial Intervention Program, and until such time as a disposition of all charges against him had been entered. Miss. Bar v. Cofer, 904 So. 2d 97, 2004 Miss. LEXIS 1032 (Miss. 2004), dismissed, 2011 Miss. LEXIS 253 (Miss. May 12, 2011).

Under Miss. Code Ann. §99-15-26, if defendant successfully completes certain court-imposed conditions, the cause against defendant is dismissed and the case closed. As a result, a conditional dismissal pursuant to §99-15-26 is different than a suspended sentence pursuant to Miss. Code Ann. §47-7-33; consequently, defendant, who pled guilty and received a suspended sentence was not entitled to have the conviction expunged under Miss. Code Ann. § 99-15-26. Turner v. State, 876 So. 2d 1056, 2004 Miss. App. LEXIS 605 (Miss. Ct. App. 2004).

Trial court lacked jurisdiction to expunge defendant’s criminal record because the trial court did not withhold acceptance of her guilty plea when defendant pled on September 23, 1996; the trial court sentenced defendant to regular probation; because defendant was not sentenced under Miss. Code Ann. §99-15-26, her argument was without merit. Smith v. State, 869 So. 2d 425, 2004 Miss. App. LEXIS 251 (Miss. Ct. App. 2004).

Because an attorney entered a valid plea of guilty to charges of bribery under Miss. Code Ann. §97-11-11, pursuant to the requirements of Miss. R. Disc. St. B. 6, the attorney demonstrated evidence of unprofessional and unethical conduct evincing unfitness for the practice of law, which warranted immediate suspension, and while the plea might later be withdrawn, the court found that this provided the attorney no relief from the application of Rule 6; furthermore, the court had the power to render immediate sanctions for admitted felonies under the non-adjudication of guilt statutory procedure of Miss. Code Ann. §99-15-26 and Miss. R. Disc. St. B. 6 without a hearing by a complaint tribunal. Miss. Bar v. Shelton, 890 So. 2d 827, 2003 Miss. LEXIS 448 (Miss. 2003), limited, Miss. Bar v. Cofer, 904 So. 2d 97, 2004 Miss. LEXIS 1032 (Miss. 2004).

The trial court properly imposed a sentence upon the defendant for his original crime where (1) the court specifically withheld acceptance of the defendant’s guilty plea in accordance with the statute pending successful completion of two years non-adjudication probation, and (2) the defendant failed to make payments for restitution and court costs that had been ordered by the court as conditions of probation. Porter v. State, 777 So. 2d 671, 2001 Miss. LEXIS 37 (Miss. 2001).

Although there was no proof that a judge willfully intended to misuse this section, where she did misuse it and subsequently did nothing to correct her error, and also made a false statement under oath regarding the sentencing, she violated this section. Mississippi Comm'n on Judicial Performance v. Byers, 757 So. 2d 961, 2000 Miss. LEXIS 27 (Miss. 2000).

The Supreme Court has the power to render immediate sanctions for admitted felonious conduct under the non-adjudication of guilt statutory procedure of this section and Rule 6 of the Rules of Discipline for the Mississippi Bar. Mississippi Bar v. Baldwin, 752 So. 2d 996, 1999 Miss. LEXIS 389 (Miss. 1999).

Subsection (4) of this section gives circuit and county court judges the discretion to expunge the record of any person whose case was dismissed or whose charges were dropped or if there was no disposition of such case, including cases involving crimes against the person. McGrew v. State, 733 So. 2d 816, 1999 Miss. LEXIS 98 (Miss. 1999).

A trial court’s imposition of a sentence of 49 1/2 years imprisonment upon finding that the defendant had violated a plea agreement which provided that the charges against the defendant would be dismissed following restitution and 3 years of good behavior pursuant to this section, in spite of the defendant’s argument that the maximum sentence he should have received was 3 years since the plea bargain required him to “go straight” for only 3 years as a condition of dismissal, since the defendant had not been adjudged guilty or sentenced for the original charges until the date when the 49 1/2 year sentence was imposed, and therefore the 3-year period of conditional good behavior did not amount to a sentencing ceiling for double jeopardy purposes. Wallace v. State, 607 So. 2d 1184, 1992 Miss. LEXIS 586 (Miss. 1992).

In proceedings under this section, the trial court never accepts the guilty plea and never imposes a sentence if the defendant fulfills the court-imposed conditions; where a guilty plea is accepted and a suspended sentence is imposed, the court cannot later impose a period of incarceration exceeding the original suspended sentence where the defendant fails to maintain a standard of good behavior because to do so would expose the defendant to double jeopardy. Wallace v. State, 607 So. 2d 1184, 1992 Miss. LEXIS 586 (Miss. 1992).

A trial court may employ a lesser standard of proof than “beyond a reasonable doubt” in determining whether a defendant has violated the conditions of a dismissal under this section; thus, a trial court did not abuse its discretion by ruling that a defendant had violated the conditions of his dismissal under this section where the defendant had not yet been tried for the crimes constituting the violations. Wallace v. State, 607 So. 2d 1184, 1992 Miss. LEXIS 586 (Miss. 1992).

Records of criminal offenses are kept pursuant to §45-27-1. The legislature of Mississippi has specifically authorized expungment of criminal offender records in limited cases-youth court cases, §§43-21-159 and43-21-265; first offense misdemeanor convictions occurring prior to age 23, §99-19-71; drug possession convictions occurring prior to age 26, §41-29-150; purchase of alcoholic beverages by one under age 21, §67-3-70; and municipal court convictions, §21-23-7. Expungment of felony convictions which arose pursuant to guilty pleas are governed by §99-15-57 which provides that any person who pled guilty within 6 months prior to the effective date of this section (March 31, 1983) may apply to the court for an order expunging his or her criminal records. Under §99-15-57 and this section a circuit court has the power to expunge a felony conviction pursuant to a guilty plea under certain conditions. Accordingly, a petitioner who pled guilty to the felony of burglary might have been eligible for relief pursuant to § 99-15-57 and this section if his guilty plea had occurred on or after October 1, 1982, that being the earliest date to satisfy the “within 6 months prior to” March 31, 1983, requirement of § 99-15-57. However, the petitioner pleaded guilty to burglary on October 9, 1979, 3 years prior to October 1, 1982, and admitted that he did not fall within the criterion in any of the statutes authorizing expungment, and thus the trial court did not err in denying his petition for expungment. Caldwell v. State, 564 So. 2d 1371, 1990 Miss. LEXIS 262 (Miss. 1990).

Under this section, if the court-imposed conditions are not successfully completed, then the court is empowered to accept the guilty plea and impose sentence thereon. A defendant does not have a right to withdraw a guilty plea made under the provisions of this section. Brown v. State, 533 So. 2d 1118, 1988 Miss. LEXIS 530 (Miss. 1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 936, 1989 U.S. LEXIS 1629 (U.S. 1989).

This section authorizes the court to place a defendant on probation even though it does not use the specific word “probation.” Brown v. State, 533 So. 2d 1118, 1988 Miss. LEXIS 530 (Miss. 1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 936, 1989 U.S. LEXIS 1629 (U.S. 1989).

2. Malicious prosecution.

Arrestee’s claim for malicious prosecution on charges of conspiracy to plant drugs lacked merit where the criminal proceeding did not terminate in the arrestee’s favor because the arrestee pled guilty to a lesser crime of trespassing; the officers’ motion for summary judgment was granted. Scribner v. Dillard, 269 F. Supp. 2d 716, 2003 U.S. Dist. LEXIS 16862 (N.D. Miss. 2003).

3. Post-conviction relief.

Although petitioner had pleaded guilty, that plea was not accepted and instead he received five years of nonadjudicated probation, and he was later released from such and his charges were dismissed, and thus he was not convicted nor sentenced in accordance with the statute and thus lacked standing to file a post-conviction relief motion, and the dismissal of his motion was affirmed; the nonadjudication of guilt resulting in dismissal of charges is not a conviction or sentence within the purview of the Mississippi Uniform Post-Conviction Relief Act. Alsahquni v. State, 150 So.3d 159, 2014 Miss. App. LEXIS 633 (Miss. Ct. App. 2014).

4. Judicial Misconduct.

Judge violated Miss. Code Ann. §99-15-26(2)(a)(v) and Miss. Code Jud. Conduct Canons 1, 2(A), 3(B)(2) and (8), and 3(C)(1) because the judge kept drug court participants in the program over two years. Miss. Comm'n on Judicial Performance v. Thompson, 169 So.3d 857, 2015 Miss. LEXIS 242 (Miss. 2015).

OPINIONS OF THE ATTORNEY GENERAL

Non-adjudication statute, Miss. Code Section 99-15-26, does not exempt records of non-adjudication from Public Records Act. Brown, June 4, 1993, A.G. Op. #93-0356.

This section, which allows judge to withhold adjudication upon defendant’s completion of certain conditions, specifically does not apply to any offense under the Mississippi Implied Consent Law. Stephens, Jan. 12, 1994, A.G. Op. #93-0889.

Subsection (4) is not applicable to records of pretrial intervention programs. Spann, Jan. 24, 2000, A.G. Op. #99-0694.

Subsection (4) may only be used when a case is dismissed or charges are dropped or there is no disposition of a case; if a defendant is convicted, that conviction may not be expunged under the statute. Spann, March 17, 2000, A.G. Op. #2000-0106.

The statute applies only to circuit or county courts and not to justice courts. Knight, Apr. 5, 2002, A.G. Op. #02-0152.

Where, pursuant to the provisions of this section, acceptance of a plea of guilty by a school board candidate is being withheld pending successful completion of the conditions set forth in an order of nonadjudication, there has been no conviction and, therefore, if the election commission finds that the individual in question is a qualified elector, has no previous felony convictions and meets all residency and other qualifications to hold the office, he would be eligible to have his name placed on the ballot. Lagasse, Sept. 27, 2002, A.G. Op. #02-0560.

A situation in which a co-tenant out of possession made tax payments to the county for a period of over twenty years following a tax sale since the co-tenant had no knowledge that said property was not in their possession any longer was subject to the requirement that a refund for erroneously paid taxes may only be made for taxes that were paid within three years prior to the date the petition seeking such refunds was filed with the board of supervisors. Griffith, Sept. 12, 2003, A.G. Op. 03-0423.

Defendant charged with exploitation of children under §97-5-33(2) is not eligible for non-adjudication under this section. Terry, Sept. 5, 2003, A.G. Op. 03-0450.

Simple domestic violence as defined in §97-3-7(3), is a crime against the person. Municipal courts may not utilize the provisions of subsection (1) of this section to non-adjudicate criminal defendants charged with and pleading guilty to the offense of simple assault or simple domestic violence. Dawson, Jan. 23, 2004, A.G. Op. 04-0019.

This section necessarily implies that the Department of Corrections has the authority to accept limited custody of persons for the sole purpose of participating in and completing a Regimented Inmate Discipline (RID) Program as a condition of non-adjudication. Such person would not be an “inmate” or a “convict.” Epps, Aug. 20, 2004, A.G. Op. 04-0275.

Where the Department of Insurance has received an application for licensing as a bail agent from a person who pled guilty to a felony, but pursuant to Section 99-15-26, the court did not accept the guilty plea, there has been no conviction of a felony for purposes of Section 83-39-3(2)(a); however, Section 83-39-9 requires an applicant to submit proof of good moral character, thus, the Department may examine the behavior and conduct leading to the guilty plea and make a determination as to whether the applicant has good moral character. Dale, May 20, 2005, A.G. Op. 05-0213.

Upon petition by the defendant, the court shall expunge a grand larceny charge if it determines the provisions of the statute have been met, which determination might include that there was no disposition of the case after two years. Brooks, May 19, 2006, A.G. Op. 06-0187.

RESEARCH REFERENCES

ALR.

State court’s power to place defendant on probation without imposition of sentence. 56 A.L.R.3d 932.

Inherent power of court to suspend for indefinite period execution of sentence in whole or in part. 73 A.L.R.3d 474.

Construction, as to terms and conditions, of state statute or rule providing for voluntary dismissal without prejudice upon such terms and conditions as state court deems proper. 34 A.L.R.4th 778.

Admissibility of evidence of other offense where record has been expunged or erased. 82 A.L.R.4th 913.

Judicial Expunction of Criminal Record of Convicted Adult in Absence of Authorizing Statute. 68 A.L.R.6th 1.

Judicial Expunction of Criminal Record of Convicted Adult Under Statute – General Principles, and Expunction of Criminal Records Under Statutes Providing for Such Relief Where Criminal Proceeding Is Terminated in Favor of Defendant, upon Completion of Probation, upon Suspended Sentence, and Where Expungement Relief Predicated upon Type, and Number, of Offenses. 68 A.L.R.6th 1.

Judicial Expunction of Criminal Record of Convicted Adult Under Statute-Expunction Under Statutes Addressing “First Offenders” and “Innocent Persons,” Where Conviction Was for Minor Drug or Other Offense, Where Indictment Has Not Been Presented Against Accused or Accused Has been Released from Custody, and Where Court Considered Impact of Nolle Prosequi, Partial Dismissal, Pardon, Rehabilitation, and Lesser-Included Offenses. 70 A.L.R.6th 1.

Am. Jur.

21A Am. Jur. 2d, Criminal Law §§ 841 et seq.

JUDICIAL DECISIONS

1. Generally.

2. Necessity of written demand.

3. Time of demand.

4. Time of delivery.

5. Necessity of true copy.

6. Waiver.

1. Generally.

Procedure for special venire is available to persons accused of certain serious crimes as matter of right, and such persons are entitled to have sheriff proceed in good faith and with due diligence to end that all persons listed upon special venire in fact be served and summoned for jury duty; it is not within sheriff’s authority to decide unilaterally that there will be enough jurors at trial and make no further effort to summon unserved jurors after certain number of persons have been served. Ratliff v. State, 515 So. 2d 877, 1987 Miss. LEXIS 2874 (Miss. 1987).

Defendant in a capital murder prosecution waived his request pursuant to §13-5-77 and this section for a special venire and for a list of the veniremen so summoned, where he never objected to the failure to provide for the special venire, and where at least fifty jurors were considered prior to impaneling the twelve jurors and two alternates. Billiot v. State, 454 So. 2d 445, 1984 Miss. LEXIS 1777 (Miss. 1984), cert. denied, 469 U.S. 1230, 105 S. Ct. 1232, 84 L. Ed. 2d 369, 1985 U.S. LEXIS 171 (U.S. 1985).

One cannot complain that he did not obtain a special venire where, when court set aside its denial and offered to direct drawing of one, he withdrew his motion and announced readiness for trial. Ross v. State, 234 Miss. 309, 106 So. 2d 56, 1958 Miss. LEXIS 492 (Miss. 1958).

Under this section [Code 1942, § 2505] providing for delivery of copy of return of special venire to defendant or his counsel, it is not error to deliver it to defendant, even though request has been made for its delivery to his lawyer. Simmons v. State, 208 Miss. 586, 45 So. 2d 149, 1950 Miss. LEXIS 276 (Miss. 1950).

This section [Code 1942, § 2505] complied with where certified copy of indictment and special venire were delivered to defendant on a Friday night preceding trial which was set for a following Monday notwithstanding defendant’s objection that it was not effective because of alleged illiteracy of defendant where defendant’s counsel was notified of the action on Saturday morning. Patton v. State, 207 Miss. 120, 40 So. 2d 592, 1949 Miss. LEXIS 322 (Miss.), cert. denied, 338 U.S. 855, 70 S. Ct. 104, 94 L. Ed. 523, 1949 U.S. LEXIS 1796 (U.S. 1949).

List of special venire and copy of indictment need not be served on accused by sheriff. Ivey v. State, 154 Miss. 60, 119 So. 507, 1928 Miss. LEXIS 198 (Miss. 1928).

The prisoner is not entitled to a copy of the regular venire for the statute only gives him a right to a copy of the special one. McCarty v. State, 26 Miss. 299, 1853 Miss. LEXIS 93 (Miss. 1853).

2. Necessity of written demand.

Forcing defendant to trial without serving copy of indictment and special venire before trial held not error, where not demanded by written motion. Gregory v. State, 152 Miss. 133, 118 So. 906, 1928 Miss. LEXIS 235 (Miss. 1928).

That copy of special venire was delivered before trial did not entitle defendant to demand copy of indictment without written motion. Gregory v. State, 152 Miss. 133, 118 So. 906, 1928 Miss. LEXIS 235 (Miss. 1928).

3. Time of demand.

Although a special venire could have been demanded in an armed robbery prosecution if the demand had been timely made, the trial court did not abuse its discretion in overruling the defendant’s motion for a special venire where the motion was made just prior to the start of trial. Williams v. State, 590 So. 2d 1374, 1991 Miss. LEXIS 801 (Miss. 1991).

A copy of the indictment and of the special venire and summons must be demanded before completion of the drawing of the special venire. Estes v. State, 127 Miss. 309, 90 So. 80, 1921 Miss. LEXIS 229 (Miss. 1921).

It is too late on motion to quash the venire for the accused to demand a list of the venire. Collier v. State, 106 Miss. 613, 64 So. 373, 1913 Miss. LEXIS 169 (Miss. 1913).

Under Code 1892, § 1408 [Code 1942, § 2505], it is within the judicial discretion of the court to deny a motion for a list of the special venire where the motion is not made until after the completion of the drawing of the venire. Hannah v. State, 87 Miss. 375, 39 So. 855, 1905 Miss. LEXIS 142 (Miss. 1905).

4. Time of delivery.

Service of copy of indictment and special venire on accused at 4:50 o’clock on afternoon of day before trial held not “one entire day before the trial.” Winchester v. State, 163 Miss. 462, 142 So. 454, 1932 Miss. LEXIS 63 (Miss. 1932).

“One entire day before trial” in this section [Code 1942, § 2505] means a day counted from midnight to midnight. Boatwright v. State, 120 Miss. 883, 83 So. 311, 1919 Miss. LEXIS 141 (Miss. 1919); O'Quinn v. State, 131 Miss. 511, 95 So. 513, 1923 Miss. LEXIS 199 (Miss. 1923); Winchester v. State, 163 Miss. 462, 142 So. 454, 1932 Miss. LEXIS 63 (Miss. 1932).

5. Necessity of true copy.

The fact that a summoned juror, who was present at court in a murder prosecution, and served on the panel without challenge for cause, was shown by the sheriff’s return to have been “not found”, did not constitute reversible error for failure to furnish defendant a true copy of the special venire upon request, in the absence of any showing that there was any censorable failure to find such juror, or that he was not duly qualified to serve as such. Davis v. State, 203 Miss. 574, 35 So. 2d 524, 1948 Miss. LEXIS 308 (Miss. 1948).

The fact that four jurors, who were drawn and summoned by the sheriff, did not appear at the trial of the murder prosecution, did not constitute reversible error for failure to furnish defendant a true copy of the special venire upon request, where there was no showing of prejudice from the failure of those summoned to appear, or that further compulsory process was resorted to without effect. Davis v. State, 203 Miss. 574, 35 So. 2d 524, 1948 Miss. LEXIS 308 (Miss. 1948).

A mistake in the copy of the special venire by which the Christian names of the persons summoned are misrecited, if it occur by inadvertence and if no injury to the prisoner be occasioned thereby, is not a sufficient ground to sustain his objection to proceeding with the trial. Browning v. State, 33 Miss. 47, 1856 Miss. LEXIS 234 (Miss. 1856).

The name of the same juror appearing twice on the venire without any collusion or improper design and without any real injury shown to have been done the prisoner by it, is not ground for error. McCarty v. State, 26 Miss. 299, 1853 Miss. LEXIS 93 (Miss. 1853).

6. Waiver.

Right of accused under this section [Code 1942, § 2505] to have copy of indictment delivered to him may be waived. Simmons v. State, 208 Miss. 586, 45 So. 2d 149, 1950 Miss. LEXIS 276 (Miss. 1950).

Statement by trial judge that accused waived requirement of this section [Code 1942, § 2505] that copy of indictment be delivered to him must be given great weight by supreme court on appeal of defendant from judgment of conviction. Simmons v. State, 208 Miss. 586, 45 So. 2d 149, 1950 Miss. LEXIS 276 (Miss. 1950).

RESEARCH REFERENCES

ALR.

Determination of indigency of accused entitling him to appointment of counsel. 51 A.L.R.3d 1108.

Law Reviews.

1978 Mississippi Supreme Court Review: Criminal Law and Procedure. 50 Miss. L. J. 59, March, 1979.

Cross References —

Secret record of indictments, see §99-7-13.

RESEARCH REFERENCES

Am. Jur.

21A Am. Jur. 2d, Criminal Law §§ 1169.

CJS.

21A C.J.S., Criminal Law § 1257 et seq.

Cross References —

Continuances where counsel is legislator, see §11-1-9.

Relief under Mississippi Uniform Post-Conviction Collateral Relief Act, see §99-39-1 et seq.

Granting of continuances for noncompliance with discovery, see Miss. Unif. Cir. & County Ct. Prac. R. 9.04.

JUDICIAL DECISIONS

1. Discretion of court.

2. —In particular circumstances.

3. Requisites and sufficiency of application and affidavit.

4. —Properly granted.

5. —Properly denied.

6. Cross-examination of affiant.

7. Time for application.

8. Grounds for continuance, generally.

9. —Time to prepare for trial; properly granted.

10. — —Properly denied.

11. —Absence of witness; properly granted.

12. — —Properly denied.

13. —Illness of witness; properly granted.

14. — —Properly denied.

15. —Absence of documents and other evidence.

16. —Absence or illness of defendant.

17. Miscellaneous.

18. Due diligence.

19. Setting aside continuance.

20. Appeal.

1. Discretion of court.

Trial court did not abuse its discretion in denying defendant’s motion for a continuance where additional discovery materials were tendered to him at trial as the brief recess it gave defendant to review the material was adequate and defendant did not show he was prejudice by not being give a longer recess. Cunningham v. State, 828 So. 2d 208, 2002 Miss. App. LEXIS 11 (Miss. Ct. App. 2002).

Trial court did not abuse its discretion in denying defendant’s motion for a continuance where the prosecution on the day of trial produced 22 photographs that were similar to six other photographs that had already been presented to defendant and the prosecutor stipulated that it would not use the new photographs at trial. Gray v. State, 799 So. 2d 53, 2001 Miss. LEXIS 278 (Miss. 2001).

The granting of a continuance is largely within the sound discretion of the trial court, and a judgment will not be reversed because the continuance is refused unless there has been an abuse of sound discretion. Gates v. State, 484 So. 2d 1002, 1986 Miss. LEXIS 2421 (Miss. 1986).

Although capital cases are required to be tried during the term in which the indictment is returned, unless good cause is shown to the contrary, the granting of a motion by the defendant for a continuance is a matter largely within the sound discretion of the trial court, and a judgment will not be reversed because the continuance is refused unless there has been an abuse of discretion. King v. State, 251 Miss. 161, 168 So. 2d 637, 1964 Miss. LEXIS 337 (Miss. 1964).

Refusal to grant a continuance is not ground for reversal unless the court abused its discretion and injustice has resulted. Eslick v. State, 238 Miss. 666, 119 So. 2d 355, 1960 Miss. LEXIS 454 (Miss. 1960).

Granting of a continuance is a matter that lies within the discretion of a trial judge and refusal of continuance will not be grounds for reversal unless that discretion has been abused and the court is satisfied that injustice has resulted therefrom. Gallego v. State, 222 Miss. 719, 77 So. 2d 321, 1955 Miss. LEXIS 657 (Miss. 1955).

A motion to pass case for two or three days so that defendant might have time in which to prepare case for trial, did not meet the requirements of this section [Code 1942, § 1520]. Gatlin v. State, 219 Miss. 167, 68 So. 2d 291, 1953 Miss. LEXIS 378 (Miss. 1953).

A trial judge has a broad discretion in granting and refusing continuances. Whittington v. State, 215 Miss. 377, 60 So. 2d 813, 1952 Miss. LEXIS 576 (Miss. 1952); Williams v. State, 216 Miss. 158, 61 So. 2d 793, 1953 Miss. LEXIS 619 (Miss. 1953); Gatlin v. State, 219 Miss. 167, 68 So. 2d 291, 1953 Miss. LEXIS 378 (Miss. 1953); Hearn v. State, 219 Miss. 412, 69 So. 2d 223, 1954 Miss. LEXIS 348 (Miss. 1954); Bucklew v. State, 218 Miss. 820, 67 So. 2d 881, 1953 Miss. LEXIS 609 (Miss. 1953); Woodruff v. State, 220 Miss. 24, 70 So. 2d 58, 1954 Miss. LEXIS 402 (Miss. 1954); Gillespie v. State, 221 Miss. 116, 72 So. 2d 245, 1954 Miss. LEXIS 519 (Miss. 1954).

Where there was no formal motion for a continuance or postponement as required by this section [Code 1942, § 1520] the refusal of court to allow a delay on the ground of surprise was not an error. Douglas v. State, 212 Miss. 176, 54 So. 2d 254, 1951 Miss. LEXIS 439 (Miss. 1951).

A trial judge has broad discretion in granting and refusing continuances, and this section [Code 1942, § 1520] enjoins upon the supreme court the duty not to reverse a case because the trial court refuses a continuance unless the court is satisfied that injustice resulted therefrom. Parker v. State, 201 Miss. 579, 29 So. 2d 910, 1947 Miss. LEXIS 423 (Miss. 1947); Lewis v. State, 56 So. 2d 397 (Miss. 1952).

While procedure for invoking the discretion of the court in granting continuances is subject to the conformance with established rules, such rules are in turn subject to the circumstances of each case. Jackson v. State, 199 Miss. 853, 25 So. 2d 483, 1946 Miss. LEXIS 253 (Miss. 1946), limited, Minneweather v. State, 55 So. 2d 160 (Miss. 1951).

While the granting or refusing of further time and continuances is largely discretionary with the trial judge, such discretion must be a sound judicial discretion having due regard to the rights of the public and of the defendant. Cruthirds v. State, 190 Miss. 892, 2 So. 2d 145, 1941 Miss. LEXIS 105 (Miss. 1941).

The trial judge has discretion in granting or overruling motion for continuance, and unless defendant is prejudiced by such ruling there will be no reversal. Cox v. State, 138 Miss. 370, 103 So. 129, 1925 Miss. LEXIS 52 (Miss. 1925); Ware v. State, 133 Miss. 837, 98 So. 229, 1923 Miss. LEXIS 186 (Miss. 1923).

The matter of granting a continuance is a matter of discretion of the court under all the facts. Williams v. State, 92 Miss. 70, 45 So. 146, 1907 Miss. LEXIS 8 (Miss. 1907); State v. Vollm, 96 Miss. 651, 51 So. 275 (Miss. 1910); Ellis v. State, 198 Miss. 804, 23 So. 2d 688, 1945 Miss. LEXIS 250 (Miss. 1945); Jackson v. State, 199 Miss. 853, 25 So. 2d 483, 1946 Miss. LEXIS 253 (Miss. 1946), limited, Minneweather v. State, 55 So. 2d 160 (Miss. 1951); Cody v. State, 24 So. 2d 745 (Miss. 1946); Bolin v. State, 209 Miss. 866, 48 So. 2d 581, 1950 Miss. LEXIS 452 (Miss. 1950).

A judgment will not be reversed because a continuance is refused, unless there was an abuse of sound discretion by the trial court. Solomon v. State, 71 Miss. 567, 14 So. 461, 1893 Miss. LEXIS 119 (Miss. 1893); Lipscomb v. State, 76 Miss. 223, 25 So. 158, 1898 Miss. LEXIS 130 (Miss. 1898).

2. —In particular circumstances.

A trial court abused its discretion by refusing to grant a criminal defendant’s request for a continuance, even though there was no demonstrative affidavit of evidence and prejudice against him and no proof as required under this section, where his court-appointed attorney indicated that he was not prepared for trial, the nature of the charges brought about by the multi-count indictment were uncertain, there was an extremely short period of time between arraignment and trial, and the State failed to provide certain discovery prior to trial. Lambert v. State, 654 So. 2d 17, 1995 Miss. LEXIS 199 (Miss. 1995).

A trial court’s denial of a defendant’s 3 motions for continuance did not warrant reversal of his conviction where he failed to show that the denial of any of his motions for continuance was an abuse of discretion or that any injustice resulted, and in each instance where a problem arose, he in some way caused or contributed to the cause of the problem. Johnson v. State, 631 So. 2d 185, 1994 Miss. LEXIS 31 (Miss. 1994).

A circuit court abused its discretion when it refused to grant a continuance to the defendants in a prosecution for sale of cocaine where, approximately two months prior to trial, the court ordered the prosecution “to make diligent efforts to obtain the address of the confidential informant” who set up the sales giving rise to the prosecution, and it was apparent on the eve of trial that the prosecution had done nothing to locate the informant. Gowdy v. State, 592 So. 2d 29, 1991 Miss. LEXIS 841 (Miss. 1991).

No abuse of discretion by trial court was found in denial of motion for continuance where defendant alleged he needed more time to prepare his claim of violation of right to speedy trial. Hughey v. State, 512 So. 2d 4, 1987 Miss. LEXIS 2752 (Miss. 1987).

Trial judge did not abuse his discretion in denying defendants’ motion for continuance to permit defense counsel to examine contents of, and to locate author of, 2 letters, purporting to exonerate defendant of armed robbery charge, which were allegedly written by the person whom defendant contended had actually perpetrated the robbery, where neither of the 2 persons indicted along with defendant admitted knowing the person named by defendant, and no attempt was made to introduce the letters into evidence. Ex parte Baxley, 496 So. 2d 688, 1986 Ala. LEXIS 3920 (Ala. 1986).

It is error to refuse continuance to rape defendant where appointed counsel for defendant is excused just prior to trial on basis of possible conflict of interest and newly appointed attorney informs judge of need for additional time to prepare; however refusal to grant continuance is not ground for setting aside conviction where defendant is not prejudiced by error in that every witness needed by defendant does in fact appear and testify, there is ample evidence on main issue in case, and defendant fails to show how continuance would have made difference in result. Plummer v. State, 472 So. 2d 358, 1985 Miss. LEXIS 2099 (Miss. 1985).

In a prosecution for grand larceny, the refusal of the trial judge to grant a continuance to the defense would not be disturbed where the appeal did not have it in a record of proceedings or evidence presented to the court showing alleged prejudice to the defendant in support of the motion for a continuance. Greene v. State, 406 So. 2d 805, 1981 Miss. LEXIS 2297 (Miss. 1981).

In a prosecution for incest, the trial court did not abuse its discretion in denying the defendant’s motion for a continuance where one of the primary complaints in the motion had been that counsel had not had an opportunity to interview the prosecuting witness and, in ruling on the motion, the court had directed the district attorney to present the witness and the defense attorney had had an opportunity to interview the witness at length before the trial. Speagle v. State, 390 So. 2d 990, 1980 Miss. LEXIS 2163 (Miss. 1980), limited, Mitchell v. State, 539 So. 2d 1366, 1989 Miss. LEXIS 141 (Miss. 1989).

In a robbery prosecution presenting neither a complex fact situation nor complex legal problems, wherein the defendant admitted taking part in the robbery charged and the jury found against her on her defense of duress, and the record showed that she received a fair and impartial trial during which she was ably defended, the overruling of her motion for continuance was not an abuse of discretion, even though the trial was held 4 days after appointment of counsel. Brown v. State, 252 So. 2d 885, 1971 Miss. LEXIS 1205 (Miss. 1971).

Continuance is permissibly denied to one for whom court appointed counsel two days prior to trial, after he had been in jail for eight months, where it does not appear that any other witnesses would have been available if more time had been granted. Coggins v. State, 234 Miss. 369, 106 So. 2d 388, 1958 Miss. LEXIS 505 (Miss. 1958).

In a prosecution for murder where the accused was put on trial two weeks after the commission of the offense and at the same term of court which had been in session at the time of the commission of the offense, there was no error. Gallego v. State, 222 Miss. 719, 77 So. 2d 321, 1955 Miss. LEXIS 657 (Miss. 1955).

Where accused was arrested on July 11, 1954, for the crime of rape occurring on July 10, 1954, and indicted on July 12, 1954, and judgment was rendered on July 16, 1954, in the circuit court which was in regular July session, the record on appeal failed to establish any abuse of discretion by trial judge in overruling a motion for continuance on the ground that there was insufficient time to prepare a defense. Robinson v. State, 223 Miss. 70, 77 So. 2d 265, 1955 Miss. LEXIS 354 (Miss.), cert. denied, 350 U.S. 851, 76 S. Ct. 91, 100 L. Ed. 757, 1955 U.S. LEXIS 553 (U.S. 1955).

Where defendants were free on bail for three months in prosecution for assault and battery with intent to kill and murder of highway patrolmen, it was their duty to exercise reasonable diligence in obtaining legal counsel and court did not abuse discretion in denying an application for continuance. Bolin v. State, 209 Miss. 866, 48 So. 2d 581, 1950 Miss. LEXIS 452 (Miss. 1950).

Where a killing occurred on July 15, defendant was indicted on August 22, arraigned on August 23, and put to trial on August 29, the appellant’s counsel having a week in which to prepare for the trial and it was not shown that any witnesses whom he may have desired were unavailable and he did not renew his motion for continuance on the day the trial began and did not, after conclusion of the trial make a motion for new trial, the trial judge did not abuse his discretion and no prejudicial error resulted from his overruling a motion for continuance. Newell v. State, 209 Miss. 653, 48 So. 2d 332, 1950 Miss. LEXIS 428 (Miss. 1950).

3. Requisites and sufficiency of application and affidavit.

Trial court’s denial of a continuance was not reversible error, as the defendant offered no evidence as to additional witnesses who were unavailable to testify, as to what would have been added to the defense had additional time been granted, or as to what due diligence was used to procure absent witnesses or absent documents pursuant to Miss. Code Ann. §99-15-29. Stubbs v. State, 845 So. 2d 656, 2003 Miss. LEXIS 115 (Miss. 2003).

Denial of defendant’s motion for continuance to obtain presence of a witness, who was in federal custody in another state, on ground that motion was untimely was not an abuse of discretion; defendant only requested witness be present on Friday before trial, defendant relied solely on state to secure witness, process to secure such a prisoner generally required 30 to 90 days, and defendant failed to file an affidavit showing facts expected to be proven by absent witness, the name and address of witness, statement that affiant had used due diligence to obtain witness, and a statement that continuance was sought not for delay only. Medina v. State, 688 So. 2d 727, 1996 Miss. LEXIS 635 (Miss. 1996).

An application for a continuance based on the inability of a witness to testify due to illness should be governed by the procedure set forth in Code 1942 § 1520 when a continuance is sought because of the absence of a witness. Smith v. State, 278 So. 2d 454, 1973 Miss. LEXIS 1447 (Miss.), cert. denied, 414 U.S. 1069, 94 S. Ct. 579, 38 L. Ed. 2d 474, 1973 U.S. LEXIS 1624 (U.S. 1973).

A motion for continuance which did not comply with the requirements of this section [Code 1942, § 1520] was properly overruled. Lewis v. State, 56 So. 2d 397 (Miss. 1952).

If defendant’s request for continuance because of absence of witness is refused, defendant in criminal case must sue out proper process for witness and when case is called for trial must again apply for continuance, making such changes in affidavit as conditions then existing require; if still refused, he must persist in using process of court to compel attendance of witness on trial; and if convicted, on hearing of motion for new trial, and if appearance of witness cannot be had, his ex parte affidavit must be presented to court, if it can be obtained, on hearing of motion for new trial. Bone v. State, 207 Miss. 20, 41 So. 2d 347, 1949 Miss. LEXIS 314 (Miss. 1949).

To be entitled to continuance because of absence of witness, defendant must promptly have witness summoned, must ask for attachment if witness has been summoned and failed to appear, must apply for continuance before venire drawn, must set out in affidavit name and residence of absent witness and facts expected to be shown by him and what steps have been taken to secure his attendance, must negative idea that witness is absent with defendant’s consent or procurement, and must give cause of witness’ absence, if known. Bone v. State, 207 Miss. 20, 41 So. 2d 347, 1949 Miss. LEXIS 314 (Miss. 1949).

Defendant in criminal prosecution cannot complain of any error of court in refusing to grant continuance on ground that certain witnesses were absent when he does not comply with rule governing continuances and follow this up on motion for new trial with affidavits as to what witnesses would swear to, or give reasonable explanation of why affidavits are not procured. Bone v. State, 207 Miss. 20, 41 So. 2d 347, 1949 Miss. LEXIS 314 (Miss. 1949).

Formal application for continuance to secure testimony of absent witnesses must be followed by appearance of witnesses in court or production of their affidavits or showing as to why affidavits could not be had. Hinton v. State, 175 Miss. 308, 166 So. 762, 1936 Miss. LEXIS 41 (Miss. 1936).

Application for a continuance must set forth the substance of the testimony of the absent witness. This application on a motion for a new trial should be produced and made a part of the record. Ware v. State, 133 Miss. 837, 98 So. 229, 1923 Miss. LEXIS 186 (Miss. 1923).

In deciding upon an application the court is not confined to a consideration of the matters stated in the affidavit but may inquire into the truth of the statements either by hearing other evidence or applying its own knowledge of what has occurred in the case up to the time. Strauss v. State, 58 Miss. 53, 1880 Miss. LEXIS 92 (Miss. 1880).

4. —Properly granted.

It is not reversible error to grant a continuance to the state despite the fact that the state failed to furnish the affidavit called for in 1972 Code §99-15-29. Wells v. State, 288 So. 2d 860, 1974 Miss. LEXIS 1877 (Miss. 1974).

5. —Properly denied.

Circuit court properly denied defendant’s motion for a continuance because she failed to explain how her counsel was unprepared or to provide evidence from the record of such a lack of preparedness, failed to offer the witnesses’ names or to explain what information the witnesses would provide that would be crucial to the defense, and the delayed request for certain documents and the resultant time crunch were defense counsel’s own creation Jackson v. State, 231 So.3d 257, 2017 Miss. App. LEXIS 678 (Miss. Ct. App. 2017).

Denial of a continuance in the trial court is not reviewable unless the party whose motion for continuance was denied makes a motion for a new trial on that ground; because defendant failed to assert in his motion for a new trial that the trial court had erred in failing to grant his motion for a continuance, the issue did not need to be reviewed on appeal. Conner v. State, 875 So. 2d 253, 2004 Miss. App. LEXIS 403 (Miss. Ct. App. 2004).

In a murder case where defendant alleged that he was not well represented by his public defense counsel and needed additional time to hire private counsel, the trial court did not abuse its discretion in denying defendant’s motion for continuance because there was no prejudice to defendant in proceeding to trial with his two court-appointed attorneys, and defendant was given ample time in which to find alternative counsel prior to trial. Rinehart v. State, 2003 Miss. LEXIS 558 (Miss. Oct. 23, 2003), op. withdrawn, sub. op., 883 So. 2d 573, 2004 Miss. LEXIS 1228 (Miss. 2004).

Trial court’s denial of a continuance was not reversible error, as the defendant offered no evidence as to additional witnesses who were unavailable to testify, as to what would have been added to the defense had additional time been granted, or as to what due diligence was used to procure absent witnesses or absent documents pursuant to Miss. Code Ann. §99-15-29. Stubbs v. State, 845 So. 2d 656, 2003 Miss. LEXIS 115 (Miss. 2003).

A judge did not abuse his discretion by denying a defendant’s request for a continuance where the defendant failed to comply with the procedural guidelines set forth in this section in the presentation of his request for a continuance. Edwards v. State, 594 So. 2d 587, 1992 Miss. LEXIS 47 (Miss. 1992).

A trial court did not abuse its discretion in denying a defendant’s motion for a continuance even though the court had permitted the defendant to substitute counsel 3 days prior to trial where the substitution was permitted upon the representation of the substituted attorney that he would be ready for trial on the designated date. Watson v. State, 521 So. 2d 1290, 1988 Miss. LEXIS 105 (Miss. 1988).

A defendant waived his right to object to a discovery violation by his failure to request a continuance when the evidence in question was introduced, even though the trial court had previously stated that no more continuances would be granted to either side. Counsel must make a record regardless of the trial court’s apparent unwillingness to rule in counsel’s favor. Cole v. State, 525 So. 2d 365, 1987 Miss. LEXIS 2655 (Miss. 1987), cert. denied, 488 U.S. 934, 109 S. Ct. 330, 102 L. Ed. 2d 348, 1988 U.S. LEXIS 4775 (U.S. 1988).

In a prosecution for burglary, armed robbery, and kidnapping, the trial court did not err in denying a continuance requested by the defense where the only information received by the court by affidavit or otherwise was that a missing witness knew where the defendant had been on the day of the alleged crimes and where there was no showing as to whether or not the missing witness would ever be available to testify. Woods v. State, 393 So. 2d 1319, 1981 Miss. LEXIS 1904 (Miss. 1981).

In a prosecution for capital murder, the trial court did not err in denying defendant’s motion for a continuance in order to locate two subpoenaed witnesses, where defendant failed to meet the requirements of this section in that his motion was not supported by an affidavit and did not state with particularity the material testimony expected from the absent witnesses, and where the testimony of the witnesses who eventually did appear at the hearing on a motion for a new trial did not add a new dimension to defendant’s case. Culberson v. State, 379 So. 2d 499, 1979 Miss. LEXIS 2528 (Miss. 1979), cert. denied, 449 U.S. 986, 101 S. Ct. 406, 66 L. Ed. 2d 250, 1980 U.S. LEXIS 3943 (U.S. 1980).

In a prosecution for the embezzlement of a rented car, the trial court properly denied defendant’s motion for a continuance where there was no compliance with this section and where, in any event, the motion was untimely. Collins v. State, 369 So. 2d 500, 1979 Miss. LEXIS 2262 (Miss. 1979).

Defendant’s ore tenus motion, made during trial and requesting a recess until a witness (for whom no subpoena or process had been issued or requested) could be brought to testify, was properly denied since it did not conform to the requirements of this statute, being unsworn, without attached affidavit, and failing to state that due diligence had been used to procure the witness or that the continuance was sought to do justice and not for delay only. McClendon v. State, 335 So. 2d 887, 1976 Miss. LEXIS 1944 (Miss. 1976).

Defendant’s motion for a continuance on account of the absence of a witness was properly denied where no subpoena for this witness was requested or issued until the day preceding the trial, it was conceded that the witness was not in the state, no showing was made in connection with the motion as to what the testimony of the absent witness would be or that his testimony was relevant or material, and, on appellant’s motion for a new trial, neither the witness nor his affidavit was produced and there was no proof of any kind to show that his testimony would be relevant or material. Dyer v. State, 300 So. 2d 788, 1974 Miss. LEXIS 1637 (Miss. 1974).

Where the motion of a defendant accused of murder for a continuance of the case for the term did not comply with the requirements of this section [Code 1942, § 1520], the trial court did not commit reversible error in the denial thereof. Dean v. State, 234 Miss. 376, 106 So. 2d 501, 1958 Miss. LEXIS 506 (Miss. 1958).

Denial of an application for continuance on the ground of absence of three witnesses was not error where one of the witnesses appeared and testified on behalf of the defendant, another witness was in military service beyond jurisdiction of the court, there was no showing that the third witness could have been brought in by exercise of reasonable diligence, and the application for continuance did not set forth their testimony. Bynum v. State, 222 Miss. 632, 76 So. 2d 821, 1955 Miss. LEXIS 648 (Miss. 1955).

Where defendant moved for a continuance because of an absence of alleged material witness and defendant did not know where the witness might be found or as to what he would testify and the motion failed to comply with the rules, the continuance was properly denied. Shoemaker v. State, 222 Miss. 257, 75 So. 2d 647, 1954 Miss. LEXIS 643 (Miss. 1954).

Where in requesting the continuance, the defendant did not set forth in his affidavit the facts which he expected to prove by the absent witnesses, if such witnesses could be found, or the names or places of residence of the absent witnesses and no showing was made that there was any reasonable probability that such witnesses could be obtained at a later date, the defendant’s request would be denied. Woodruff v. State, 220 Miss. 24, 70 So. 2d 58, 1954 Miss. LEXIS 402 (Miss. 1954).

In prosecution for unlawful possession of intoxicating liquors where defendant failed to file motion for continuance in a proper written form as prescribed by this section [Code 1942, § 1520], this was sufficient justification for the circuit court to refuse to grant the requested continuance. Smith v. State, 219 Miss. 741, 69 So. 2d 837, 1954 Miss. LEXIS 381 (Miss. 1954).

Refusal to grant motion for continuance because of absence of material witness was held justified where due diligence was not shown and no effort on part of the defendant to procure the presence of the witness was made until the trial was practically in progress and the motion for a new trial was not followed up by the affidavit of the absent witness. Thigpen v. State, 206 Miss. 87, 39 So. 2d 768, 1949 Miss. LEXIS 244 (Miss. 1949).

A motion for a continuance because of the absence of a material witness is correctly denied when the absent witness was not in the jurisdiction of the court, had not been summoned, and his affidavit had not been obtained. Rodgers v. State, 204 Miss. 891, 36 So. 2d 155, 1948 Miss. LEXIS 418 (Miss. 1948).

Motion for continuance because of absence of a witness was properly overruled where her evidence would have been merely cumulative, it was not shown that she could be produced at a subsequent trial, and, on motion for a new trial, neither her affidavit showing what her testimony would be was produced nor was there any showing that production of such affidavit was impracticable. Magee v. State, 200 Miss. 861, 27 So. 2d 767, 1946 Miss. LEXIS 347 (Miss. 1946).

Refusal to grant continuance to secure testimony of absent witnesses held not error, where no sworn application was presented to court and continued diligence was not shown and neither absent witnesses nor their affidavits were presented on motion for a new trial. Hinton v. State, 175 Miss. 308, 166 So. 762, 1936 Miss. LEXIS 41 (Miss. 1936).

An affidavit for continuance on the ground of the absence of a witness, which was in its nature an application for delay to give defendant an opportunity to make search for evidence not known to exist, was insufficient, and a denial of the application for continuance was proper. Richberger v. State, 90 Miss. 806, 44 So. 772, 1907 Miss. LEXIS 122 (Miss. 1907).

6. Cross-examination of affiant.

Where an accused sought a continuance on the alleged ground that he could not obtain his witnesses, but failed to comply with the requirements of Code 1942, § 1520 with reference to filing the proper affidavit, the motion was properly overruled. Saucier v. State, 259 So. 2d 484, 1972 Miss. LEXIS 1531 (Miss. 1972).

Law relating to cross-examination on application for continuance is not applicable to criminal cases. Hill v. State, 152 Miss. 708, 120 So. 817, 1929 Miss. LEXIS 242 (Miss. 1929).

Permitting district attorney to examine defendant over objection on application for continuance was erroneous; defendant, applying for continuance, has right to stand on application. Hill v. State, 152 Miss. 708, 120 So. 817, 1929 Miss. LEXIS 242 (Miss. 1929).

Cross-examination of defendant on motion for continuance held, under circumstances, harmless error. Hill v. State, 152 Miss. 708, 120 So. 817, 1929 Miss. LEXIS 242 (Miss. 1929).

7. Time for application.

Where the state relies upon a sale made at a different time from that made in the indictment to the surprise of the defendant, a continuance should be asked before verdict if desired. Peebles v. State, 105 Miss. 834, 63 So. 271, 1913 Miss. LEXIS 266 (Miss. 1913).

8. Grounds for continuance, generally.

In a murder case, defendant’s motion for a continuance on the first day of trial to obtain new counsel was properly denied because defendant’s Sixth Amendment right to counsel of his choice was not absolute, the denial of the motion did not result in manifest injustice, and the proposed disqualification of a prosecutor had no bearing on this issue. Ousley v. State, 984 So. 2d 996, 2007 Miss. App. LEXIS 462 (Miss. Ct. App. 2007), aff'd, 984 So. 2d 985, 2008 Miss. LEXIS 338 (Miss. 2008).

Where defendant had notice of a trial date that had been set for quite some time, a trial court did not err by denying defendant’s motion for a continuance when he sought to fire his attorney on the morning of trial. McCollins v. State, 952 So. 2d 305, 2007 Miss. App. LEXIS 167 (Miss. Ct. App. 2007).

There was no merit in defendant’s claim that his defense counsel’s performance was deficient due to his failure to request a continuance after the trial court denied his request for a change of venue, as defendant had failed to allege that any publicity additional to the four newspaper articles submitted during the change of venue hearing had occurred accordingly, there was no cause shown for seeking a continuance. Grayson v. State, 879 So. 2d 1008, 2004 Miss. LEXIS 721 (Miss. 2004), cert. denied, 543 U.S. 1155, 125 S. Ct. 1301, 161 L. Ed. 2d 122, 2005 U.S. LEXIS 1593 (U.S. 2005).

Trial judge did not abuse his discretion in refusing to grant a continuance where defendant did not follow the proper procedure for obtaining a continuance and it came to light that the witness was unavailable and would not be available to testify at any time in the foreseeable future. McGee v. State, 828 So. 2d 847, 2002 Miss. App. LEXIS 551 (Miss. Ct. App. 2002).

Trial court did not err in failing to continue the trial in the absence of a physician, a defense witness, because there was no indication that defendant acted with due diligence to obtain the presence of the physician at trial, nor was there any evidence that the physician’s testimony was material. Evans v. State, 844 So. 2d 470, 2002 Miss. App. LEXIS 470 (Miss. Ct. App. 2002), cert. denied, 846 So. 2d 229, 2003 Miss. App. LEXIS 483 (Miss. Ct. App. 2003).

Trial court erred in denying motion for continuance where district attorney first provided discovery only one day before date of trial, rejected was contention of district attorney that denial of continuance was warranted on grounds that defendant had failed to bring his discovery motion up for hearing on court’s motion day and that there was no prejudice involved. Stewart v. State, 512 So. 2d 889, 1987 Miss. LEXIS 2750 (Miss. 1987).

An application for a continuance based on the inability of a witness to testify due to illness should be governed by the procedure set forth in Code 1942 § 1520, when a continuance is sought because of the absence of a witness. Smith v. State, 278 So. 2d 454, 1973 Miss. LEXIS 1447 (Miss.), cert. denied, 414 U.S. 1069, 94 S. Ct. 579, 38 L. Ed. 2d 474, 1973 U.S. LEXIS 1624 (U.S. 1973).

The application for continuance on the ground that the attorney for defendant has not had a reasonable time to prepare for trial is different from an application for continuance on the ground that there is an absent witness, for when a witness is absent the movant must continue his effort to obtain the witness after filing the motion required by this section [Code 1942, § 1520], but a motion for continuance upon the ground of insufficient time to prepare for trial is subject to proof and also to facts as they may appear from that which is known to the trial court. Barnes v. State, 249 So. 2d 383, 1971 Miss. LEXIS 1160 (Miss. 1971).

A motion for a change of venue, rather than a motion for continuance, is the usual procedure where an accused fears that he will be unable to get an impartial jury because of prejudicial pretrial publicity. Wilson v. J. Ed Turner, Inc., 221 So. 2d 368, 1969 Miss. LEXIS 1497 (Miss. 1969).

No abuse of discretion is involved in denying a continuance sought on the ground that the state had been permitted to amend an indictment for burglary with respect to the ownership of the property. Kelly v. State, 239 Miss. 683, 124 So. 2d 840, 1960 Miss. LEXIS 341 (Miss. 1960).

Application for a continuance to the next term was properly denied where the crime was committed in July, the indictment was had in October, the accused employed two attorneys the day the indictment was returned, all of the testimony involved one place and one occasion, all witnesses were available both to the state and to the accused and apparently all testified, and the court set the case for trial a week after hearing the motion. Garner v. State, 202 Miss. 21, 30 So. 2d 413, 1947 Miss. LEXIS 235 (Miss. 1947).

After procuring continuance on affidavit by defendant setting out the testimony of absent witnesses, such witnesses may be cross-examined on such affidavit as to what defendant expected to prove by them. McLeod v. State, 130 Miss. 83, 92 So. 828, 1922 Miss. LEXIS 199 (Miss. 1922).

On an application for continuance on the ground of the absence of a witness where it is agreed witness if present would state certain facts on the trial, it is error to permit opposing party to prove that such witness was present at a former trial and did not testify. Smith v. State, 90 Miss. 111, 43 So. 465, 1907 Miss. LEXIS 61 (Miss. 1907), overruled, Wells v. State, 96 Miss. 500, 51 So. 209, 1910 Miss. LEXIS 162 (Miss. 1910).

The fact that an absent witness is within the jurisdiction of the court is material in an application for a continuance. Donald v. State, 41 So. 4 (Miss. 1906).

9. —Time to prepare for trial; properly granted.

Pursuant to Miss. Code Ann. §99-15-29, the trial court did not abuse his discretion by granting defendant a mere one-day continuance; while defendant’s attorney alleged that he needed additional time to research Mississippi’s felony-murder statute, he offered no explanation as to why he could not have done so during the five weeks that he was on notice that his client would be tried for felony murder. Coleman v. State, 30 So.3d 387, 2010 Miss. App. LEXIS 109 (Miss. Ct. App. 2010).

A trial court erred in failing to grant a defendant’s motion for a continuance to allow additional time to prepare for trial where the defendant’s attorney was retained only 8 days before trial, and the attorney was a sole practitioner who had to prepare pleadings and motions, do research, attend court, and interview witnesses in addition to running his law practice, so that the defendant was, in effect, being penalized for hiring a sole practitioner to represent her. Hughes v. State, 589 So. 2d 112, 1991 Miss. LEXIS 765 (Miss. 1991).

It is error to refuse continuance to rape defendant where appointed counsel for defendant is excused just prior to trial on basis of possible conflict of interest and newly appointed attorney informs judge of need for additional time to prepare; however refusal to grant continuance is not ground for setting aside conviction where defendant is not prejudiced by error in that every witness needed by defendant does in fact appear and testify, there is ample evidence on main issue in case, and defendant fails to show how continuance would have made difference in result. Plummer v. State, 472 So. 2d 358, 1985 Miss. LEXIS 2099 (Miss. 1985).

In a close case between murder and manslaughter, an injustice resulted when the court denied two motions for continuance and forced the defendant to go to trial 7 days after he was indicted for murder and just 15 days after the altercation which resulted in the death of the victim and the serious cutting of the defendant. Cochran v. State, 244 So. 2d 22, 1971 Miss. LEXIS 1321 (Miss. 1971).

Defendant and his counsel should have been given more than a week to prepare for a murder trial, particularly where two motions for continuance were presented to the court: one listing pre-set required court appearances by defense counsel in other matters during the week before trial, and the other setting forth the absence of witnesses, two of them alleged to be eyewitnesses, and where both motions ended with a sworn statement that defendant and his counsel required more time to properly investigate and prepare for trial, and that the motion was made, not for delay, but that justice might be served. Cochran v. State, 244 So. 2d 22, 1971 Miss. LEXIS 1321 (Miss. 1971).

10. — —Properly denied.

Issue of whether the trial court erred by denying defendant a continuance was procedurally barred because the record did not indicate that defendant ever filed a motion for new trial. In any event, defendant failed to establish that the trial court abused its discretion in denying defendant’s motion for a continuance because (1) defense counsel stated that counsel was not prepared because counsel had been busy with other cases, even though counsel had four months to prepare for the trial; (2) the trial court recessed the proceeding so that defense counsel could listen to a tape of defendant’s statement, which was approximately fifteen minutes in length, and compare it to the previously provided transcript; and (3) counsel was given an opportunity to cross-examine a sheriff’s deputy chief regarding the content of the tape and the accompanying transcript. Moore v. State, 52 So.3d 339, 2010 Miss. LEXIS 574 (Miss. 2010).

There was no merit to defendant’s contention that the trial judge erred in denying a motion for a continuance because defendant had sufficient notice that the case had been set for trial where defendant was represented by two attorneys, one of whom made an entry of appearance more than three years before the trial date. Jones v. State, 20 So.3d 57, 2009 Miss. App. LEXIS 694 (Miss. Ct. App. 2009).

Trial court did not err in denying defendant’s motion for a continuance in order to have an expert examine the audiotape of defendant’s statement to the police because defendant and defense counsel had possession of the tape well in advance of trial. Dahl v. State, 989 So. 2d 910, 2007 Miss. App. LEXIS 822 (Miss. Ct. App. 2007), cert. denied, 993 So. 2d 832, 2008 Miss. LEXIS 412 (Miss. 2008).

Motion for a continuance was properly denied in a grand larceny case because defendant knew of the charges against him for several months and had ample time to hire a private attorney; hiring an attorney at the last minute was not an adequate reason for a continuance. Easterling v. State, 963 So. 2d 49, 2007 Miss. App. LEXIS 528 (Miss. Ct. App. 2007).

Prosecution disclosed the identity and last known residence of the informant well before the scheduled trial, and the trial court gave defendant the opportunity to accept a continuance, but he was satisfied to go to trial without the informant or police chief present; there was no abuse of the trial court’s discretion when it denied the continuance on the day of trial. Hudderson v. State, 941 So. 2d 221, 2006 Miss. App. LEXIS 803 (Miss. Ct. App. 2006).

In a case where defendant’s attorney claimed that he was not given adequate time to review the discovery materials, prepare for trial, and consult with an independent medical expert, a trial judge denied his motion for a continuance because defendant’s attorney was hired in January and attended defendant’s habeas corpus hearing in March; also, his attorney stated that he had worked on the case every day since he received the State’s discovery materials. Furthermore, on the day of the trial, the trial court asked defendant’s attorney whether he was ready for trial, and the attorney announced that he was ready; thus, the trial court did not abuse its discretion in denying the motion for a continuance. McFadden v. State, 929 So. 2d 365, 2006 Miss. App. LEXIS 105 (Miss. Ct. App. 2006).

Trial court did not abuse its discretion in denying defendant’s motion for a continuance on the ground that defendant’s attorney had been denied access to defendant on the day before trial, which was a Sunday, because defendant and his attorney had ample time to confer prior to trial. Further, the trial judge stated on the record that he had been available had defense counsel tried to contact him on Sunday. Peters v. State, 920 So. 2d 1050, 2006 Miss. App. LEXIS 104 (Miss. Ct. App. 2006).

Defendant failed to show error in the trial court’s denial of his motion for a continuance, there was no showing that defense counsel would have done anything differently had the trial court granted a motion for continuance before the start of trial. Stack v. State, 860 So. 2d 687, 2003 Miss. LEXIS 529 (Miss. 2003).

Defendant failed to sustain his burden of showing that the trial court abused its discretion in denying defendant’s motion to continue his trial for statutory rape where the record on appeal was silent as the reasons for the requested continuance or why additional time was needed for trial Farrish v. State, 840 So. 2d 820, 2003 Miss. App. LEXIS 232 (Miss. Ct. App. 2003).

Defendant’s request for a continuance so that he could be granted a competency hearing was properly denied, because defendant did not display behavior that would even remotely lead someone to believe that he was incompetent to stand trial. Reeves v. State, 825 So. 2d 77, 2002 Miss. App. LEXIS 475 (Miss. Ct. App. 2002).

Motion for continuance made by replacement counsel because he was retained eight days before trial was properly denied since defendant had failed to preserve the issue for appeal and did not show how he was prejudiced by the denial as he was found not to be guilty of additional crimes for which he was tried. Jones v. State, 801 So. 2d 751, 2001 Miss. App. LEXIS 520 (Miss. Ct. App. 2001).

Where there was no discovery violation by the state and the defendant failed to present his counsel with a witness list, he was not entitled to a continuance so as to allow further preparation of his defense. Fikes v. State, 749 So. 2d 1107, 1999 Miss. App. LEXIS 544 (Miss. Ct. App. 1999).

The trial court did not abuse its discretion in denying a continuance in a manslaughter prosecution to allow the defendant more time to test the victim’s blood for LSD and PCP; the day before a witness expressed surprise that his blood had turned up negative for drugs because the witness believed he was using acid where (1) the defendant had previously taken a tape-recorded conversation with the same witness in which the witness claimed she knew nothing of the defendant using drugs, and (2) the record showed that, other than alcohol, the victim’s blood tested negative for six commonly abused drugs. Swindle v. State, 755 So. 2d 1158, 1999 Miss. App. LEXIS 318 (Miss. Ct. App. 1999).

There was no manifest injustice resulting from the denial of a continuance, notwithstanding the contention that defense counsel was informed the day before trial that the case would not be tried the next day, that believing the case to be continued, the defendant’s counsel had him appear at the courthouse merely to sign an order of continuance, that upon arriving at the courthouse, the defendant was informed that he would go to trial that day, and that, consequently, the defendant argued that he did not have his witnesses appear in court; the defendant was aware of the date of trial for two and a half months, his trial was designated as “first out” two weeks before trial, he was told the day before trial that his case may be preempted by another case but it was not a certainty, and he did not proffer at trial nor on appeal any additional witnesses nor did he attempt to delineate their testimony. Easley v. State, 744 So. 2d 822, 1999 Miss. App. LEXIS 262 (Miss. Ct. App. 1999).

The trial court did not abuse its discretion in refusing to grant a continuance where the record demonstrated that the defendant retained his own counsel who represented him at trial and had adequate time to secure and hire additional counsel, and where he failed to show that his trial counsel was not fully prepared for trial. White v. State, 746 So. 2d 953, 1999 Miss. App. LEXIS 183 (Miss. Ct. App. 1999).

A motion for a continuance was properly denied, notwithstanding the contention that defense counsel needed more time to locate and interview witnesses, where defense counsel never proffered any evidence naming the witnesses or setting forth the nature of their testimony. Hayes v. State, 723 So. 2d 1182, 1998 Miss. App. LEXIS 971 (Miss. Ct. App. 1998).

A defendant was not entitled to a continuance on the ground that he did not receive discovery material in sufficient time to make use of it where he did not request the material until 3 weeks before trial, he received the requested information 5 days before trial, and he failed to request a continuance until the day before trial. May v. State, 569 So. 2d 1188, 1990 Miss. LEXIS 672 (Miss. 1990).

When an accused appears on the morning of trial with a new lawyer and requests a continuance, the trial court does not abuse its discretion in denying the continuance. Byrd v. State, 522 So. 2d 756, 1988 Miss. LEXIS 70 (Miss. 1988).

A trial court did not abuse its discretion in denying a defendant’s motion for a continuance where the newly appointed defense attorney had 24 days to prepare for trial. Fisher v. State, 532 So. 2d 992, 1988 Miss. LEXIS 438 (Miss. 1988).

A defendant was not entitled to discharge his court-appointed counsel and substitute a retained attorney as counsel on the day of the trial where the case had “dragged on” for a long period of time, had been set for trial on a date certain, and would be delayed by the appearance of the retained counsel, who had requested a continuance. Harrison v. State, 520 So. 2d 1352, 1987 Miss. LEXIS 2928 (Miss. 1987).

Trial court may deny capital murder defendant’s request for continuance due to unavailability of defense fingerprint expert where court concludes that fingerprint expert would testify that fingerprints of murder victim and no one else had been found at scene of crime. Cabello v. State, 471 So. 2d 332, 1985 Miss. LEXIS 2059 (Miss. 1985), cert. denied, 476 U.S. 1164, 106 S. Ct. 2291, 90 L. Ed. 2d 732, 1986 U.S. LEXIS 1720 (U.S. 1986).

In a prosecution for capital murder the trial court properly denied a motion for a continuance, where no proof was offered in support of the motion. Oates v. State, 421 So. 2d 1025, 1982 Miss. LEXIS 2267 (Miss. 1982).

In a prosecution for aggravated assault, the trial court did not err in denying defendant’s motion for a continuance, even though defendant contended that the case was complex and that his attorney was involved in several other cases and did not have enough time to prepare, where defendant’s privately employed attorney had eight days to prepare for trial, where he was an experienced attorney and former district attorney who vigorously represented defendant at trial, and where the record did not show prejudice by the refusal to grant a continuance or that his attorney’s case load had precluded proper representation of defendant. Shaw v. State, 378 So. 2d 631, 1979 Miss. LEXIS 2539 (Miss. 1979).

Where an indictment originally charged the theft of a number of articles of personal property, and at the trial the district attorney asked leave to amend the indictment by eliminating all but four of the articles listed, and the accused claimed surprise and asked for a continuance on the ground that he had prepared to meet the indictment and had a witness who would testify that some of the articles eliminated by the amendment were not in fact stolen, the amendment was properly permitted and the motion for continuance was properly denied. Stevens v. State, 232 So. 2d 730, 1970 Miss. LEXIS 1641 (Miss. 1970).

The circuit court did not err in refusing to grant an accused a continuance on the ground that his attorney had not had adequate opportunity to prepare, where the accused had expressly asked the court for a speedy trial whereupon the case was set within 6 weeks, but on the call date the attorney for the accused advised the court that he did not represent the accused, whereupon the court appointed him to defend the accused and set the case up a week, and where, further, at the trial the accused was ably represented in a defense which was obviously well prepared. Wilson v. J. Ed Turner, Inc., 221 So. 2d 368, 1969 Miss. LEXIS 1497 (Miss. 1969).

In prosecution for felonious assault by cutting with knife, overruling motion for continuance on trial date is not abuse of court’s discretion when indictment was returned on February 25, 1949, defendant was arraigned on February 28th, cause set for trial on March 2, defendant plead not guilty to indictment and stated he could procure services of attorney and court passed case to March 10th, attorneys were employed March 9th, and court passed case to March 11, 1949 when trial was held, and defendant was ably represented. Ferrell v. State, 208 Miss. 539, 45 So. 2d 127, 1950 Miss. LEXIS 272 (Miss. 1950).

Refusal to grant continuance on third trial of prosecution for rape, which trial took place some two weeks after employment of new counsel for defendant, did not constitute a denial of defendant’s right to effective representation by counsel contrary to the Fourteenth Amendment of the United States Constitution, where more than two years had elapsed since the commission of the offense, such counsel had advantage of voluminous and comprehensive briefs, records and opinions of the court in two previous trials and the assistance of two investigators to help them in preparing for the trial. McGee v. State, 40 So. 2d 160 (Miss.), cert. denied, 338 U.S. 805, 70 S. Ct. 77, 94 L. Ed. 487, 1949 U.S. LEXIS 1886 (U.S. 1949).

11. —Absence of witness; properly granted.

Trial court did not abuse its discretion by denying defense counsel’s request to continue the trial due to the absence of a witness because the witness was not properly served with a subpoena, the defense was not diligent in its efforts to locate the witness, the witness’ name was stricken from the witness list, and the substance of the witness’ report was covered in another witness’ testimony. Metcalf v. State, 265 So.3d 1242, 2019 Miss. App. LEXIS 66 (Miss. Ct. App.), cert. dismissed, 265 So.3d 181, 2019 Miss. LEXIS 117 (Miss. 2019).

Trial court did not err by denying defendant’s motion for a continuance because, even though defendant asserted that it was clear that his only witness was subpoenaed to testify in the 2014 case, not the 2016 case that was being called for trial that day, defendant failed to identify any other witness that he would have called or any other evidence that he would have presented if a continuance had been granted. Harvell v. State, — So.3d —, 2019 Miss. App. LEXIS 192 (Miss. Ct. App. May 7, 2019).

There was no indication that the trial judge abused his discretion, nor that manifest injustice occurred when the trial judge granted the State’s request for a recess over the weekend because (1) neither the State nor the defense’s subpoenas of the witnesses had been served; and (2) allowing the State to begin presenting evidence on Monday would allow it to present its case continuously and was done in an effort to reduce confusion to the jury. Forkner v. State, 902 So. 2d 615, 2004 Miss. App. LEXIS 1105 (Miss. Ct. App. 2004), cert. denied, 901 So. 2d 1273, 2005 Miss. LEXIS 345 (Miss. 2005).

No manifest injustice resulted from the denial of defendant’s motion for continuance as defendant did not present any evidence that he was unable to call an allegedly exculpatory witness during his three-week trial. Cox v. State, 2003 Miss. LEXIS 103 (Miss. Mar. 13, 2003), op. withdrawn, sub. op., 849 So. 2d 1257, 2003 Miss. LEXIS 337 (Miss. 2003).

Failure of counsel to issue subpoenas even for friendly, favorable witnesses is perilous, because if for some reason witness fails to appear, prerequisite for continuance is that he or she is either under process or reasonable effort has been made to serve him or her with subpoena. Triplett v. State, 666 So. 2d 1356, 1995 Miss. LEXIS 597 (Miss. 1995).

In order to be entitled to continuance because of absent witness, counsel must demonstrate to court that he or she “has used due diligence” to secure witness’ presence; embraced therein is requirement that counsel has made timely effort to place absent witness under subpoena. Triplett v. State, 666 So. 2d 1356, 1995 Miss. LEXIS 597 (Miss. 1995).

Defendant is entitled to continuance to compel presence of doctor who has evaluated mental capacity of defendant where failure to grant continuance will result in lack of expert testimony as to defendant’s mental capacity, which is major issue in case. Carter v. State, 473 So. 2d 471, 1985 Miss. LEXIS 2173 (Miss. 1985).

Where, in a grand larceny prosecution, motion for continuance was seasonably made and contained sworn averments that defendant, charged with the theft of sheep, purchased them from a witness who was the only witness to the transaction, that such witness was on board ship at sea as a member of the merchant marine and was unavailable as a witness, that process for him had been requested but he could not be reached or communicated with, that defendant had used due diligence to reach him and that he would be available at the next term of court, trial court abused its discretion in denying a continuance. Jackson v. State, 199 Miss. 853, 25 So. 2d 483, 1946 Miss. LEXIS 253 (Miss. 1946), limited, Minneweather v. State, 55 So. 2d 160 (Miss. 1951).

Where defendant was arrested for unlawful possession of whiskey in the county, immediately arraigned without the presence of his attorney, and trial was set for 8:30 A.M. the next day, and his attorney, who arrived just five minutes before trial time, having been previously engaged in chancery court in another county, requested time to confer with the defendant and prepare his defense, refusal of such request, trial and conviction of defendant were erroneous as denying defendant a fair and impartial trial, notwithstanding that defendant’s principal witness was out of the state in view of statement in affidavit in support of such request that he would voluntarily appear and testify if given an opportunity to do so. Cruthirds v. State, 190 Miss. 892, 2 So. 2d 145, 1941 Miss. LEXIS 105 (Miss. 1941).

Where subpoena for wife of defendant as a witness in murder case was issued but falsely returned as having been personally served, and, upon discovery, a second subpoena was issued which disclosed that the witness could not be found in the county designated therein but there was information that she could be found in another county, defendant’s application for continuance, showing that the witness was a material witness, should have been granted. Brooks v. State, 108 Miss. 571, 67 So. 53, 1914 Miss. LEXIS 240 (Miss. 1914).

Where, in a criminal case, defendant’s affidavit, made on application for continuance on the ground of the absence of a witness, showed that the absent witness was a resident of the county, that she was away without defendant’s procurement, that her absence was temporary, and that her testimony would prove defendant’s innocence, and there was nothing to suggest that the application was not made in good faith, the trial court should have granted a continuance, notwithstanding that the witness was outside the jurisdiction of the court, in view of the short time between the indictment and the trial and the fact that persons charged with crime should have a reasonable time in which to procure witnesses. Cade v. State, 96 Miss. 434, 50 So. 554, 1910 Miss. LEXIS 146 (Miss. 1910).

Where murder case was set for trial only eight days after indictment and preparation for defense was promptly begun and process issued for defendant’s witnesses, and it appeared that one witness lived in another county and could not be found, but was willing to and could appear at the next term of court, application for continuance should have been granted. Woodward v. State, 89 Miss. 348, 42 So. 167, 1906 Miss. LEXIS 11 (Miss. 1906).

It is a dangerous exercise of judicial discretion to refuse a continuance and a postponement of the trial to a future day of the term, where the affidavit alleges material facts, where all diligence has been shown and where it is averred that the same proof can be made by no other than the absent witness. Long v. State, 52 Miss. 23, 1876 Miss. LEXIS 160 (Miss. 1876).

12. — —Properly denied.

Trial court did not err in failing to grant a continuance despite the fact that a defense witness had disappeared because even if the witness would have testified, the testimony would have been duplicative of defendant’s testimony and thus, defendant was not prejudiced by the denial of his request for a continuance. Watson v. State, 991 So. 2d 662, 2008 Miss. App. LEXIS 593 (Miss. Ct. App. 2008).

Continuance was not warranted in a capital murder case because defense counsel was aware of one witness before trial and failed to issue a subpoena, and as to a second witness, defendant’s rights under the Sixth Amendment and Miss. Const. Art. 3, § 26 were not violated since there was no colorable need for the presence of the witness; moreover, defendant did not show that it was impossible or impracticable to secure an affidavit from the witness. King v. State, 962 So. 2d 124, 2007 Miss. App. LEXIS 494 (Miss. Ct. App. 2007).

Defendant’s conviction for the sale of marijuana within a correctional facility was appropriate because the circuit court did not err in failing to grant defendant’s motion for a continuance since the record contained no affidavits or any other indication that anyone knew a probationer’s whereabouts, and there was no indication that the probationer would likely have been available at some time in the future. Jackson v. State, 962 So. 2d 649, 2007 Miss. App. LEXIS 104 (Miss. Ct. App.), cert. denied, 962 So. 2d 38, 2007 Miss. LEXIS 434 (Miss. 2007).

Trial court did not err in denying defendant’s motion for a continuance based on a newly discovered witness; also, the trial court did not err in denying the motion for a continuance to permit the testimony of another officer about whether the cocaine came from defendant or another individual because, after proffering the information that the unavailable officer would have been able to provide, defendant’s attorney did not show how the potential information could have been relevant to defendant’s trial. Harris v. State, 921 So. 2d 366, 2005 Miss. App. LEXIS 423 (Miss. Ct. App. 2005), cert. denied, 926 So. 2d 922, 2006 Miss. LEXIS 155 (Miss. 2006).

Where defendants did not name witnesses or state what facts were peculiarly within the unnamed witnesses’ knowledge, and admitted that they did not know of any particular witnesses, and that they hoped to investigate further, they were not granted a continuance under Miss. Code Ann. §99-15-29. Johnson v. State, 872 So. 2d 65, 2004 Miss. App. LEXIS 34 (Miss. Ct. App. 2004).

No manifest injustice resulted from the denial of defendant’s motion for continuance as defendant did not present any evidence that he was unable to call an allegedly exculpatory witness during his three-week trial. Cox v. State, 849 So. 2d 1257, 2003 Miss. LEXIS 337 (Miss. 2003).

Trial judge did not abuse his discretion in refusing to grant a continuance where defendant did not follow the proper procedure for obtaining a continuance and it came to light that the witness was unavailable and would not be available to testify at any time in the foreseeable future. McGee v. State, 828 So. 2d 847, 2002 Miss. App. LEXIS 551 (Miss. Ct. App. 2002).

The trial court properly denied the defendant’s motion for a continuance based on the absence of a witness for whom two subpoenas had been issued where (1) the only action taken by the defendant or his attorney with regard to the witness was to ask the police chief if the police department had served process on the witness, which was in fact done, and (2) the motion did not detail the substance of the testimony of the absent witness or allege that the witness could be produced at a succeeding term of court. Buckley v. State, 772 So. 2d 1059, 2000 Miss. LEXIS 239 (Miss. 2000).

The trial court acted within its discretion in denying the defendant’s last minute continuance request based on the absence of a witness because the materiality of the unavailable proof was, at best, marginal, and it seemed substantially likely that most, if not all, of it would prove to be inadmissible hearsay. Swanagan v. State, 759 So. 2d 442, 2000 Miss. App. LEXIS 62 (Miss. Ct. App. 2000).

Where the defendant failed to set forth the expected testimony of the witnesses and failed to utilize diligence in securing their attendance, the trial court did not abuse its discretion in denying defendant’s motion for a continuance. Fikes v. State, 749 So. 2d 1107, 1999 Miss. App. LEXIS 544 (Miss. Ct. App. 1999).

Defendant was not entitled to continuance based on absence of witness where defendant issued no subpoena, defendant offered no proof of absent witness’ testimony or that he attempted to procure the witness’ attendance, there was adequate time for preparation between indictment and trial, and there were no discovery violations. Atterberry v. State, 667 So. 2d 622, 1995 Miss. LEXIS 630 (Miss. 1995).

Trial court did not err in denying defendant continuance due to absence of daughter, who defendant said was material witness suddenly unavailable, where defendant did not follow statutory and case law requirements, did not issue subpoena for daughter or her mother, and did not present daughter or her affidavit when he moved for new trial. Defendant alleged he did not discover daughter would be unavailable until evening before trial and it was impossible for him to issue subpoena and he could not issue affidavits required by statute. Pinson v. State, 518 So. 2d 1220, 1988 Miss. LEXIS 37 (Miss. 1988).

Circuit Court did not abuse its discretion in refusing to grant motion for continuance upon grounds that alibi witness was absent where trial judge instructed jury that it could consider, with other testimony, assertion of defendant that he would call witness who would testify that defendant was at house of witness at time and on night of rape. Johnson v. State, 511 So. 2d 1360, 1987 Miss. LEXIS 2667 (Miss. 1987).

It is contemptuous of obligation every trial counsel owes court to wait until 10 days before predetermined trial date in capital murder case to inform circuit judge of unavailability of defense expert witnesses in case in which at least 30 pretrial motions are made by thorough and aggressive defense counsel; in such case, motion for continuance on basis of absence of witnesses is properly denied. Johnson v. State, 477 So. 2d 196, 1985 Miss. LEXIS 2072 (Miss. 1985), cert. denied, 476 U.S. 1109, 106 S. Ct. 1958, 90 L. Ed. 2d 366 (U.S. 1986).

In a prosecution for aggravated assault, the record did not support granting a mistrial nor a continuance (even though one was never requested) due to the absence of two witnesses who were not under subpoena, and who had left the state shortly prior to trial, where defense counsel was bound to have known that both were possible witnesses from a consultation with his client, a decision to issue defense subpoenas for them were not made until the night before trial, no effort was made to subpoena them until the morning of the trial, and where, on the morning of the trial, both the state and the defense announced that they were ready. Watson v. State, 465 So. 2d 1025, 1985 Miss. LEXIS 1944 (Miss. 1985).

In a prosecution for the sale of less than one kilogram of marijuana, the trial court did not abuse its discretion in denying the defendant’s motion for a continuance in order to obtain the presence of a confidential informant where the defendant had no right to call the informant as an adverse witness or to cross-examine him and where the defendant had previously been granted continuances from two terms to procure this witness but had failed to ask for an attachment against him. Tribbett v. State, 394 So. 2d 878, 1981 Miss. LEXIS 1924 (Miss. 1981).

In a prosecution for aggravated assault upon a police officer, the trial court did not abuse its discretion in denying a defense request for a continuance owing to the absence of a witness where the witness was described by the defense as “hiding from the law” and there was a distinct probability that he would be unavailable indefinitely or at least for an extended period of time. Norman v. State, 385 So. 2d 1298, 1980 Miss. LEXIS 2008 (Miss. 1980).

In a prosecution for aggravated assault with a deadly weapon, the trial court did not abuse its discretion in overruling defendant’s motion for a continuance made so that a subpoenaed witness to a previous altercation between defendant and his victim could be located, where the victim had admitted that the altercation had occurred, and where both defendant and his girlfriend had also testified regarding the prior incident; the testimony of the subpoenaed witness would have been merely cumulative. Graham v. State, 381 So. 2d 138, 1980 Miss. LEXIS 1824 (Miss. 1980).

In a homicide prosecution, the trial court did not err in overruling defendant’s motion to extend the trial proceedings into the next day in order to allow defendant additional time to locate a witness, where defense counsel admitted to having learned about the witness earlier that day, but no subpoena had been requested by him, and where no attempt had been made to follow the statutory procedure dealing with applications for a continuance. Herring v. State, 374 So. 2d 784, 1979 Miss. LEXIS 2347 (Miss. 1979).

Defendant’s motion for a continuance on account of the absence of a witness was properly denied where no subpoena for this witness was requested or issued until the day preceding the trial, it was conceded that the witness was not in the state, no showing was made in connection with the motion as to what the testimony of the absent witness would be or that his testimony was relevant or material, and, on appellant’s motion for a new trial, neither the witness nor his affidavit was produced and there was no proof of any kind to show that his testimony would be relevant or material. Dyer v. State, 300 So. 2d 788, 1974 Miss. LEXIS 1637 (Miss. 1974).

There was no error in a trial court’s failure to grant a continuance to enable the defendant, charged with unlawfully driving an automobile, to obtain process upon an alleged witness, where there was nothing in the motion to show the whereabouts of the witness or any suggestion that the witness would likely be available at any future time, since the issue as to whether or not a continuance should be allowed is largely discretionary. Parham v. State, 229 So. 2d 582, 1969 Miss. LEXIS 1254 (Miss. 1969).

The court’s refusal to continue a case to afford the sheriff more time to locate a defense witness, was not an abuse of discretion, where no showing was made that the witness, whom the defendant subpoenaed on the day of the trial, but who could not be found, was available or that his testimony would be relevant and material upon the question of the guilt or innocence of the defendant. Graham v. State, 229 So. 2d 548, 1969 Miss. LEXIS 1245 (Miss. 1969).

Where there was no proper showing as to the findings of the doctor who had examined the defendant to determine his sanity or what a doctor would testify to, and defendant’s motion for a new trial contained no affidavits or other evidence indicating what the absent witness might testify to, or indicating any prejudice to the defendant, trial court did not commit reversible error in overruling defendant’s motion for a continuance on the grounds of absence of a doctor as a witness, it further appearing that the witness had not been subpoenaed until the morning of the day of the trial. Eslick v. State, 238 Miss. 666, 119 So. 2d 355, 1960 Miss. LEXIS 454 (Miss. 1960).

Continuance because of absence of witness beyond the jurisdiction of the state will be denied where attorneys did not exercise the persistence and diligence required. Simmons v. State, 206 Miss. 535, 40 So. 2d 289, 1949 Miss. LEXIS 281 (Miss. 1949).

Refusal of trial court in murder prosecution to grant defendant continuance because of absence of material witness, upon whom an attachment had been served, but who was physically unable to attend the trial, did not constitute reversible error where there was no affidavit of the absent witness, or other showing as to what witness would have testified to, or in what respect the testimony of such witness would have supported a defense of justifiable homicide. Spearman v. State, 204 Miss. 865, 35 So. 2d 527, 1948 Miss. LEXIS 413 (Miss. 1948).

Denial of new trial grounded upon refusal of continuance on account of absence of witnesses by whom defendant claimed he could prove an alibi in prosecution for grand larceny, was warranted where defendant failed to procure the affidavits of such witnesses as to what their testimony would have been. Russell v. State, 203 Miss. 883, 34 So. 2d 722, 1948 Miss. LEXIS 334 (Miss. 1948).

Denial in murder prosecution of motion for continuance alleging that absent witness would testify that on day of homicide and only shortly before it occurred deceased made a deadly assault on accused’s codefendant and threatened to kill him on sight, was not error, where accused himself testified repeatedly that he knew of no trouble between deceased and codefendant. Criss v. State, 202 Miss. 184, 30 So. 2d 613, 1947 Miss. LEXIS 257 (Miss. 1947).

Refusal of a continuance is not error where the absent witness’ testimony would only have been cumulative and tended to impeach that of a state’s witness, these facts being indicated in a letter from the witness who gave no affidavit although she could have done so. Parker v. State, 201 Miss. 579, 29 So. 2d 910, 1947 Miss. LEXIS 423 (Miss. 1947).

Motion for continuance in manslaughter prosecution on ground of absence of witness was properly overruled where no proof was offered and the motion contained no information as to the whereabouts of the witness or set out sufficiently what efforts were made to secure his attendance or ascertain his whereabouts, and witness had not been served with process and no further process was requested, and where no motion was made for a new trial and the affidavit of the absent witness was not produced. Cody v. State, 24 So. 2d 745 (Miss. 1946).

Trial court in prosecution for unlawful cohabitation did not abuse its discretion in denying application for continuance because of absence of witness who was in the armed forces, where no subpoena had been issued or requested for him, there was no showing that he would be available at any future trial of the case, and witness’ testimony given at previous trial of defendants for the same offense was read to the jury with consent of the district attorney. Strong v. State, 199 Miss. 17, 23 So. 2d 750, 1945 Miss. LEXIS 266 (Miss. 1945).

Denial of continuance in murder prosecution because of inaccessibility of material witness did not constitute abuse of discretion where proposed testimony related to alleged threat by deceased against accused and accused was defending on the ground of self defense against an actual battery. Kilgore v. State, 198 Miss. 816, 23 So. 2d 690, 1945 Miss. LEXIS 252 (Miss. 1945).

Trial judge in murder prosecution did not abuse his discretion in refusing to grant defendant a continuance on the ground that a material witness was in the armed forces abroad, where the proposed testimony of the witness concerned an alleged threat by the deceased against defendant, whereas defendant sought to justify his act as being in self defense against an actual battery during which he gave ground against an aggressive and continued assault by deceased. Kilgore v. State, 198 Miss. 816, 23 So. 2d 690, 1945 Miss. LEXIS 252 (Miss. 1945).

Refusal in murder prosecution to grant a continuance based upon absence of a nonresident witness was not error, where defendant had made no effort to procure witness’s presence at the trial and there was no proof that he would likely be available as a witness at any future trial of the case. Ellis v. State, 198 Miss. 804, 23 So. 2d 688, 1945 Miss. LEXIS 250 (Miss. 1945).

It was not error to deny continuance because of absence of a witness who could testify as to dying declaration of one shot by defendant to the effect that he would have shot defendant if his gun had been loaded, where application for continuance was silent as to whether deceased would have shot in self-defense or as an aggressor. Woulard v. State, 137 Miss. 808, 102 So. 781, 1925 Miss. LEXIS 23 (Miss. 1925).

Refusal to grant continuance to defendant charged with assault with intent to murder on the ground of the absence of a witness who allegedly saw prosecuting witness soon after he was shot and to whom prosecuting witness related the details of the shooting, was error, where prosecuting witness denied having stated the facts which defendant alleged would be proved by the absent witness. Cade v. State, 96 Miss. 434, 50 So. 554, 1910 Miss. LEXIS 146 (Miss. 1910).

13. —Illness of witness; properly granted.

Trial court’s refusal to grant a continuance to a father, who was charged with shooting a 17-year-old boy for slapping his daughter, was erroneous, where the affidavit in support of the motion for continuance showed that the accused’s wife, a witness to the shooting, was hospitalized and averred that she would testify that the victim was the aggressor to the affray and that the accused shot in apparent self defense, and it further appeared that as a result of the absence the witness, the accused was compelled to testify in his own behalf whether he had desired to do so or not, since otherwise the state’s case would have stood undisputed. Ivy v. State, 229 Miss. 491, 91 So. 2d 521, 1956 Miss. LEXIS 630 (Miss. 1956).

In prosecution for knowingly receiving stolen property where defendant made a motion for continuance on the ground that his wife who was a material witness in his behalf was confined to hospital and unable to appear, an overruling of the motion was error. Whittington v. State, 215 Miss. 377, 60 So. 2d 813, 1952 Miss. LEXIS 576 (Miss. 1952).

A defendant is entitled to a continuance on account of the absence of his wife who is a material witness for him and is sick and unable to attend. Walker v. State, 129 Miss. 449, 92 So. 580, 1922 Miss. LEXIS 60 (Miss. 1922).

The court cannot adjourn to a place where a sick witness resides to take testimony of such witness; the court should have granted the continuance asked for on that ground. Carter v. State, 100 Miss. 342, 56 So. 454, 1911 Miss. LEXIS 41 (Miss. 1911).

A material witness within the jurisdiction of the court properly served with process but sick and unable to testify and no other witness by which such facts can be proven entitles to continuance. State v. Vollm, 96 Miss. 651, 51 So. 275 (Miss. 1910).

14. — —Properly denied.

There was no abuse of discretion in denying a continuance on the ground of absence of a witness where the motion, made on day of trial, was unsupported by proper proof that the witness was actually in a hospital, and, the movant-accused made no offer of more evidence about the absent witness, failed to renew motion after evidence at trial indicated the witness was in hospital and, on motion for new trial, made no attempt to present the witness to the court for examination. Gates v. State, 484 So. 2d 1002, 1986 Miss. LEXIS 2421 (Miss. 1986).

In prosecution for robbery where testimony of prosecuting witnesses was overwhelming in identifying the accused as the perpetrator of robbery, the fact that one defense witness whose testimony would show that one prosecuting witness had first identified someone else as guilty party was unable to testify because of illness, was not error where the court denied continuance. Payne v. State, 215 Miss. 390, 61 So. 2d 146, 1952 Miss. LEXIS 578 (Miss. 1952).

A motion for continuance was properly overruled where the state admitted the context of the testimony proposed to be obtained from witnesses summoned but failing to appear because of illness. Sistrunk v. State, 200 Miss. 437, 27 So. 2d 606, 1946 Miss. LEXIS 307 (Miss. 1946).

15. —Absence of documents and other evidence.

In a case involving the sale of cocaine, a violation of Miss. Unif. Cir. & Cty. R. 9.04 relating to the disclosure of an informant’s name one day prior to trial was considered harmless because there was no miscarriage of justice; therefore, a continuance was properly denied. Defense counsel had the opportunity to interview the informant outside the presence of the jury, and the informant admitted in front of the jury that he was manipulative, a drug addict, a liar, and a thief. Mosely v. State, 4 So.3d 1069, 2009 Miss. App. LEXIS 106 (Miss. Ct. App. 2009).

At the beginning of a murder trial, the court did not abuse its discretion in denying defendant’s motion for a continuance so that he could obtain the results of the toxicology screen on the victim’s blood. The fact that the victim was using cocaine did not indicate that he was the aggressor. Flaggs v. State, 999 So. 2d 393, 2008 Miss. App. LEXIS 333 (Miss. Ct. App. 2008), cert. dismissed, dismissed without prejudice, cert. denied, 2009 Miss. LEXIS 37 (Miss. Jan. 22, 2009), cert. denied, 999 So. 2d 852, 2009 Miss. LEXIS 53 (Miss. 2009).

Defendant’s request for a continuance to procure a toxicology report and to locate three witnesses was properly denied because defendant suffered no manifest injustice as a result: (1) a forensic pathologist testified that the victim had a blood-alcohol content of .03 at the time defendant shot and killed him and that the victim had inhaled some marijuana shortly before defendant shot him; and (2) defendant had months before his trial to locate the witnesses, interview them, and subpoena them for trial. Defendant did not indicate to what those witnesses would have testified or how their testimony would have benefitted the defense, and defendant made no effort to comply with Miss. Code Ann. §99-15-29. Gilbert v. State, 934 So. 2d 330, 2006 Miss. App. LEXIS 241 (Miss. Ct. App. 2006).

There is no abuse of discretion in denying defendant’s motion for a continuance on the ground that the reporter had been unable to make a transcript of proceeding on a preceding mistrial, where defendant has other methods of establishing what the state’s witnesses had testified to, and the case is otherwise ready. Holmes v. State, 242 Miss. 407, 134 So. 2d 485, 1961 Miss. LEXIS 576 (Miss. 1961).

This section [Code 1942, § 1520] is not controlling except in the case of an absent witness or documents, one being accused of crime being entitled to be present and to be tried only when he is physically and mentally capable of intelligently conferring with his counsel as to the merits of the case and testifying in his own behalf. Eastland v. State, 223 Miss. 115, 223 Miss. 195, 78 So. 2d 127, 1955 Miss. LEXIS 369 (Miss. 1955).

16. —Absence or illness of defendant.

Trial court did not abuse its discretion, and the court found no manifest injustice, in the trial court’s denial of defendant’s motion for a continuance; defendant had previously been granted a continuance and was given the opportunity to present certain evidence, but he failed to do so, and while the trial court denied this continuance, the trial court did offer to make physical and medical accommodations for defendant during trial. Davis v. State, 995 So. 2d 767, 2008 Miss. App. LEXIS 181 (Miss. Ct. App.), cert. denied, 999 So. 2d 374, 2008 Miss. LEXIS 678 (Miss. 2008).

Where the accused was physically unable to intelligently confer with his counsel and there was testimony of four physicians that he was too ill to stand trial, it was an error to deny a motion for continuance, even though the right to grant or deny continuance is in trial court’s discretion. Eastland v. State, 223 Miss. 115, 223 Miss. 195, 78 So. 2d 127, 1955 Miss. LEXIS 369 (Miss. 1955).

Sickness of defendant resulting from the drinking of large quantities of liquor before trial is not ground for continuance. Bourne v. State, 103 Miss. 628, 60 So. 724, 1912 Miss. LEXIS 209 (Miss. 1912).

Where one accused of unlawful sale of intoxicating liquor was physically unable to attend her trial and it was shown that she was the only material witness to contradict the contentions of the prosecution, it was error to refuse her a continuance to the next term or to a later day in the term when she could be present. Corbin v. State, 99 Miss. 486, 55 So. 43, 1911 Miss. LEXIS 217 (Miss. 1911).

A defendant too ill to attend trial for misdemeanor should have her case continued. Hoggett v. State, 99 Miss. 844, 56 So. 172, 1911 Miss. LEXIS 259 (Miss. 1911); Johnson v. State, 108 Miss. 709, 67 So. 177, 1914 Miss. LEXIS 263 (Miss. 1914).

17. Miscellaneous.

Court rejected defendant’s claim of ineffective assistance of counsel, given that the court failed to see how asking for a continuance constituted deficient performance in this instance, plus defendant failed to show prejudice. Ray v. State, 27 So.3d 416, 2009 Miss. App. LEXIS 496 (Miss. Ct. App. 2009), cert. denied, 27 So.3d 404, 2010 Miss. LEXIS 61 (Miss. 2010).

Trial court did not abuse its discretion or cause an injustice to occur when it failed to move for a continuance sua sponte or to grant a continuance at the request of the inmate because there was no proof in the record to support the inmate’s allegation that he had retained his own counsel, a proposed receipt did not state that it was for representation of the inmate’s case, and the inmate’s appointed counsel was present and ready for trial. Harris v. State, 999 So. 2d 436, 2009 Miss. App. LEXIS 13 (Miss. Ct. App. 2009).

Defendant failed to meet his burden of proof that the trial court’s denial of a continuance was an abuse of discretion where the trial court had an opportunity to view defendant, consider his appearance, and to hear argument of counsel on the issue. Piercy v. State, 850 So. 2d 219, 2003 Miss. App. LEXIS 656 (Miss. Ct. App. 2003).

The defendant failed to show that manifest injustice resulted from the denial of a continuance she requested on the grounds that she did not know a transcript of her first trial existed until the morning of the second trial and was therefore denied the use of the transcript to impeach witnesses as a review of the record did not show any prejudice suffered by her. Bogan v. State, 2000 Miss. App. LEXIS 233 (Miss. Ct. App. May 16, 2000), op. withdrawn, sub. op., 811 So. 2d 286, 2001 Miss. App. LEXIS 23 (Miss. Ct. App. 2001).

A trial court did not err in refusing to delay the trial until the defendant, who was deaf, could be taught to use sign language where the court had no way of ascertaining whether the defendant would learn sign language nor the degree to which it could improve his ability to understand and communicate, the defendant was able to read, he was a high school graduate and a college student, and he was kept advised of what was being argued and what testimony was being presented during the trial. Shook v. State, 552 So. 2d 841, 1989 Miss. LEXIS 449 (Miss. 1989).

Trial court did not abuse its discretion in refusing a continuance on grounds that there was a variance between the indictment charging attempted murder and the capias charging assault and battery with intent to kill, where both the capias and a copy of the indictment were served on the defendant, and before the request for a continuance was considered, a demurrer to the indictment was filed, argued and overruled, therefore showing that defense counsel must have known the indictment charged the crime of attempted murder. Ledet v. State, 286 So. 2d 817, 1973 Miss. LEXIS 1320 (Miss. 1973).

Defendant was not entitled to a continuance so that he could work and earn money with which to employ an attorney, nor was he entitled to a continuance so that his relatives might agree to help him obtain an attorney. Burnett v. State, 285 So. 2d 783, 1973 Miss. LEXIS 1305 (Miss. 1973).

The voluntary substitution of counsel by a litigant during the course of trial is not, of itself, grounds for a continuance. Ladnier v. State, 273 So. 2d 169, 1973 Miss. LEXIS 1560 (Miss. 1973).

In prosecution for murder a motion for continuance on the ground that publicity given to a previous trial of codefendant in the same murder would deny the defendant a fair trial, was properly denied when it was not shown that the conditions were changed, the granting of a continuance being largely within the discretion of the trial judge. Sorber v. State, 225 Miss. 436, 76 So. 2d 234, 84 So. 2d 429, 1956 Miss. LEXIS 395 (Miss. 1956).

No abuse of discretion by trial court was shown in denying a motion for continuance of manslaughter trial on ground that relative of one of defendant’s attorneys had been killed and others seriously injured in accident four days before day set for trial where the record failed to show that before the summoning of the venire, the court had been requested to pass the case for trial, experienced associate counsel appeared to have the case well in hand when tried, and the denial did not prevent the defendant from producing any witness desired. Williams v. State, 26 So. 2d 64 (Miss. 1946).

18. Due diligence.

Denial of defendant’s motion for continuance to obtain presence of a witness, who was in federal custody in another state, on ground that motion was untimely was not an abuse of discretion; defendant only requested witness be present on Friday before trial, defendant relied solely on state to secure witness, process to secure such a prisoner generally required 30 to 90 days, and defendant failed to file an affidavit showing facts expected to be proven by absent witness, the name and address of witness, statement that affiant had used due diligence to obtain witness, and a statement that continuance was sought not for delay only. Medina v. State, 688 So. 2d 727, 1996 Miss. LEXIS 635 (Miss. 1996).

In a prosecution for delivery of a controlled substance and possession of a controlled substance with intent to distribute, the trial court did not abuse its discretion when it denied the defendants’ motion for a continuance to afford them “an opportunity to locate the confidential informer” where the defendants had previously obtained a continuance because the informant was not available and spent six months “doing nothing,” the defendants did not file the motion at issue until the day before trial, there was nothing in the record detailing the prosecution’s efforts, or lack thereof, to produce the confidential informant, and there was nothing suggesting prosecutorial bad faith while the record reflected substantial defense dilatoriness. Bosarge v. State, 594 So. 2d 1143, 1991 Miss. LEXIS 994 (Miss. 1991).

In a prosecution for forgery of a check, the trial court did not err in refusing to grant a continuance to the defendant where the record failed to show that the defendant had used due diligence to procure the presence of an absent witness. Harper v. State, 394 So. 2d 311, 1981 Miss. LEXIS 1934 (Miss. 1981).

Refusal to grant motion for continuance because of absence of material witness, was held justified where due diligence was not shown and no effort on part of the defendant to procure the presence of the witness was made until the trial was practically in progress and the motion for a new trial was not followed up by the affidavit of the absent witness. Thigpen v. State, 206 Miss. 87, 39 So. 2d 768, 1949 Miss. LEXIS 244 (Miss. 1949); Ford v. State, 227 So. 2d 454, 1969 Miss. LEXIS 1355 (Miss. 1969).

Cases in which defendant used reasonable diligence to have material witness present who was then in the jurisdiction of the court in which it is held a continuance should have been granted. Watts v. State, 90 Miss. 757, 44 So. 36, 1907 Miss. LEXIS 106 (Miss. 1907); Magee v. State, 45 So. 360 (Miss. 1908); White v. State, 95 Miss. 75, 48 So. 611, 1909 Miss. LEXIS 221 (Miss. 1909); Dobbs v. State, 96 Miss. 786, 51 So. 915, 1910 Miss. LEXIS 205 (Miss. 1910).

19. Setting aside continuance.

Reversal by court of order allowing continuance and reinstatement of the case in the absence of defendants and their attorney, constituted an abuse of discretion. Jackson v. State, 199 Miss. 853, 25 So. 2d 483, 1946 Miss. LEXIS 253 (Miss. 1946), limited, Minneweather v. State, 55 So. 2d 160 (Miss. 1951).

The continuance should not be set aside on petition of disinterested third parties in the absence of accused or his attorney. Campbell v. State, 50 So. 499 (Miss. 1909).

20. Appeal.

In a case involving defendant’s sexual battery and fondling of his stepdaughters, an issue relating to the denial of his second motion for a continuance was not heard on review because defendant failed to raise this alleged error in a post-trial motion for a new trial. Palmer v. State, 986 So. 2d 328, 2007 Miss. App. LEXIS 737 (Miss. Ct. App. 2007), cert. denied, 987 So. 2d 451, 2008 Miss. LEXIS 567 (Miss. 2008).

Decision to grant or deny continuance is left to sound discretion of trial court, and unless manifest injustice appears to have resulted from denial of continuance, the Supreme Court should not reverse. Atterberry v. State, 667 So. 2d 622, 1995 Miss. LEXIS 630 (Miss. 1995).

Defendant who does not raise failure to grant continuance as ground in motion for new trial is procedurally barred from raising issue on appeal. Pool v. State, 483 So. 2d 331, 1986 Miss. LEXIS 2370 (Miss.), cert. denied, 476 U.S. 1160, 106 S. Ct. 2280, 90 L. Ed. 2d 722, 1986 U.S. LEXIS 1548 (U.S. 1986).

RESEARCH REFERENCES

ALR.

Hostile sentiment or prejudice as ground for continuance of criminal trial. 39 A.L.R.2d 1314.

Right to accused to continuance because of absence of witness who is fugitive from justice. 42 A.L.R.2d 1229.

Withdrawal, discharge, or substitution of counsel in criminal case as ground for continuance. 73 A.L.R.3d 725.

Disruptive conduct of spectators in presence of jury during criminal trial as basis for reversal, new trial, or mistrial. 29 A.L.R.4th 659.

Am. Jur.

17 Am. Jur. 2d, Continuance §§ 46-48 et seq.

8 Am. Jur. Pl & Pr Forms (Rev), Criminal Procedure, Forms 151 et seq. (continuance).

5 Am. Jur. Trials, Pretrial Procedures and Motions, §§ 49 et seq.

CJS.

22A C.J.S., Criminal Law §§ 876 et seq.

Cross References —

Continuance where counsel is legislator, see §11-1-9.

JUDICIAL DECISIONS

1. In general.

Under this section [Code 1942, § 2506] one charged with a felony less than capital is not entitled to greater consideration than one who was charged with a capital felony. Hathorn v. State, 225 Miss. 77, 82 So. 2d 653, 1955 Miss. LEXIS 561 (Miss. 1955).

Where a defendant asks for a continuance because of the absence of a witness before the special venire is drawn and it is overruled, and he fails to renew his application at the trial and does not complain thereof in his motion for a new trial, he cannot secure the reversal in the supreme court of an adverse judgment because thereof. Lamar v. State, 63 Miss. 265, 1885 Miss. LEXIS 60 (Miss. 1885).

The court may refuse an application for a continuance on the ground of the absence of any witness who had not been subpoenaed and made his appearance prior to the drawing of the special venire, “unless for cause coming to the knowledge of the defendant after the drawing of the special venire.” Penn v. State, 62 Miss. 450, 1884 Miss. LEXIS 102 (Miss. 1884).

A defendant is not entitled to a continuance when his case is called for trial on the ground of the absence of a witness who, having been subpoenaed before the drawing of the special venire, was then absent, unless good cause can be shown for his failure to make the application before the drawing of the venire. Fletcher v. State, 60 Miss. 675, 1882 Miss. LEXIS 112 (Miss. 1882).

RESEARCH REFERENCES

ALR.

Hostile sentiment or prejudice as ground for continuance of criminal trial. 39 A.L.R.2d 1314.

Am. Jur.

8 Am. Jur. Pl & Pr Forms (Rev), Criminal Procedure, Forms 171 et seq. (continuance).

5 Am. Jur. Trials, Pretrial Procedures and Motions, §§ 49 et seq.

JUDICIAL DECISIONS

1. In general.

A motion for continuance was properly overruled where the state admitted the context of the testimony proposed to be obtained from witnesses summoned but failing to appear because of illness. Sistrunk v. State, 200 Miss. 437, 27 So. 2d 606, 1946 Miss. LEXIS 307 (Miss. 1946).

At the first term of court after indictment and arrest of defendant the defendant is entitled to a continuance on account of the absence of a material witness within the jurisdiction of the court. Walton v. State, 87 Miss. 296, 39 So. 689, 1905 Miss. LEXIS 129 (Miss. 1905); Knox v. State, 97 Miss. 523, 52 So. 695, 1910 Miss. LEXIS 265 (Miss. 1910).

Error in refusing a continuance because of the absence of a witness is not cured by permitting defendant to read in evidence an affidavit averring what the witness would swear if present. Scott v. State, 80 Miss. 197, 31 So. 710, 1902 Miss. LEXIS 239 (Miss. 1902); Montgomery v. State, 85 Miss. 330, 37 So. 835, 1904 Miss. LEXIS 158 (Miss. 1904), overruled, Flowers v. State, 101 Miss. 108, 57 So. 226, 1911 Miss. LEXIS 94 (Miss. 1911).

It is proper under this section [Code 1942, § 2522] to charge that the same weight should be given to the written testimony of an absent witness as would be given to his oral testimony on the stand. Lee v. State, 75 Miss. 625, 23 So. 628, 1898 Miss. LEXIS 41 (Miss. 1898).

Absence of a material witness is no ground for a continuance even in a capital case if there have been opportunity for compulsory process which has not been obtained. Thomas v. State, 61 Miss. 60, 1883 Miss. LEXIS 72 (Miss. 1883).

The statute has no application until the showing for a continuance has been so made out to the satisfaction of the court that, but for the proposed admission of the evidence of the absent witness, a continuance would be proper. Strauss v. State, 58 Miss. 53, 1880 Miss. LEXIS 92 (Miss. 1880).

RESEARCH REFERENCES

ALR.

Withdrawal, discharge, or substitution of counsel in criminal case as ground for continuance. 73 A.L.R.3d 725.

Cross References —

Transfer of records to removal court, see §99-15-37.

Change of venue in capital cases, see §99-15-43.

Pre-trial publicity, see Miss. Unif. Cir. & County Ct. Prac. R. 9.01.

JUDICIAL DECISIONS

1. In general.

2. Examination of witnesses.

3. Reasons for change.

4. Review.

5. Particular circumstances.

6. Publicity.

7. Fair trial.

8. Discretion.

1. In general.

Because defendant never applied for a change of venue in the trial court, he was procedurally barred from raising this argument on appeal. Neal v. State, 15 So.3d 388, 2009 Miss. LEXIS 272 (Miss. 2009), dismissed, — So.3d —, 2016 Miss. LEXIS 340 (Miss. 2016).

Despite the fact that defendant’s motion for change of venue created a rebuttable presumption of doubt that an impartial jury could be obtained, the State’s witnesses at the hearing and the voir dire proceedings rebutted any presumption that an impartial jury could not be obtained and there was nothing in the record of such quality and weight to indicated that the circuit judge abused his discretion in denying the motion. Defendant sought to change venue based on pretrial publicity and based on claim that the victim’s family had a lot of influence in the community. McCune v. State, 989 So. 2d 310, 2008 Miss. LEXIS 347 (Miss. 2008).

Defendant’s issue with respect to the denial of his motion for a change of venue was not made in writing, sworn to by defendant, or supported by affidavits from at least two credible persons; therefore, the issue was without merit because defendant failed to comply with Miss. Code Ann. §99-15-35, and it was within the trial court’s discretion to deny the motion. Smith v. State, 981 So. 2d 1025, 2008 Miss. App. LEXIS 275 (Miss. Ct. App. 2008).

Trial court did not abuse its discretion in denying defendant’s motion for a change of venue as the presumption the State acknowledged was raised, that defendant could not obtain an impartial jury in the county where the murder victim resided, was rebutted by the State’s evidence that most veniremen did not know about the crime and the absence of any persuasive proof of overly prejudicial pretrial publicity. Grayson v. State, 806 So. 2d 241, 2001 Miss. LEXIS 303 (Miss. 2001), cert. denied, 537 U.S. 973, 123 S. Ct. 466, 154 L. Ed. 2d 329, 2002 U.S. LEXIS 7800 (U.S. 2002).

An application for change of venue must conform strictly to this section. Baldwin v. State, 732 So. 2d 236, 1999 Miss. LEXIS 76 (Miss. 1999).

An application for change of venue was statutorily deficient where the motion for change of venue itself was not sworn to by the prisoner as is specifically required by this section. Baldwin v. State, 732 So. 2d 236, 1999 Miss. LEXIS 76 (Miss. 1999).

Usual procedure employed when accused believes he cannot get impartial jury in particular county is motion for change of venue. Hoops v. State, 681 So. 2d 521, 1996 Miss. LEXIS 433 (Miss. 1996).

Decision to grant venue change is in sound discretion of trial judge. Hoops v. State, 681 So. 2d 521, 1996 Miss. LEXIS 433 (Miss. 1996).

Presumption that impartial jury could not be impaneled may be rebutted by state’s demonstration that impartial jury was actually impaneled, for purposes of determining whether venue was proper. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

Trial court did not abuse its discretion in denying change of venue request in highly publicized trial where close study of record revealed that no reasonable jury could have returned different verdict. Defendant had introduced 6 witnesses who were employed by various media outlets who all testified they provided thorough news coverage of murder investigation; state only produced 2 witnesses who testified they thought defendant could receive fair trial and they had not heard of community sentiment of ill will toward defendant or prejudgment of his guilt. All but 8 of 79 persons in venire stated they had heard about case but court determined that jury did not compromise defendant’s right to fair trial where record revealed that 14 prospective jurors who had heard about murder and formed opinion as to defendant’s guilt or innocence were questioned and excused for cause; of remaining prospective jurors who indicated they had heard about case, all indicated they could render a verdict based only on evidence presented at trial. Lutes v. State, 517 So. 2d 541, 1987 Miss. LEXIS 2931 (Miss. 1987).

When accused has complied with proper application requirement by making motion supported by affidavits of 2 or more witnesses in conformance with this section, presumption arises that impartial jury may not be obtained; this presumption is normally rebuttable and may be rebutted during voir dire; however, this does not mean that trial court should delay ruling on defendant’s motion until after voir dire. Lutes v. State, 517 So. 2d 541, 1987 Miss. LEXIS 2931 (Miss. 1987).

Even in light of the relaxation of change of venue requirements announced in recent cases, a defendant, in order to obtain a change of venue, is required to make some showing by testimony of local citizens that he cannot receive a fair trial in the community. Irving v. State, 498 So. 2d 305, 1986 Miss. LEXIS 2518 (Miss. 1986), cert. denied, 481 U.S. 1042, 107 S. Ct. 1986, 95 L. Ed. 2d 826, 1987 U.S. LEXIS 2032 (U.S. 1987).

The proper application requirement for change of venue is a motion supported by affidavits of 2 or more witnesses, alleging that by prejudgment of the case, or a grudge or ill will to the defendant in the public mind, he cannot have a fair and impartial trial in the county where the offense is charged to have been committed. White v. State, 495 So. 2d 1346, 1986 Miss. LEXIS 2698 (Miss. 1986).

The decision regarding a change of venue in a criminal proceeding is committed to the sound discretion, not the unfettered discretion, of the trial judge. White v. State, 495 So. 2d 1346, 1986 Miss. LEXIS 2698 (Miss. 1986).

Trial judge did not abuse his discretion in overruling homicide defendant’s motion for change of venue, where there was no over-saturated media coverage, and, with one exception, newscast’s and articles were typical and objective, and, since record did not contain the voir dire of prospective juror, it must be assumed that jurors who were seated had stated that they could give defendant a fair trial. Weeks v. State, 493 So. 2d 1280, 1986 Miss. LEXIS 2614 (Miss. 1986).

A motion for change of venue was properly denied as being invalid, where it was not supported by affidavits of two or more credible persons. Gilliard v. State, 428 So. 2d 576, 1983 Miss. LEXIS 2437 (Miss.), cert. denied, 464 U.S. 867, 104 S. Ct. 40, 78 L. Ed. 2d 179, 1983 U.S. LEXIS 1737 (U.S. 1983), disapproved, Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69, 1986 U.S. LEXIS 150 (U.S. 1986).

In a prosecution for capital murder, the trial court properly denied the defendant’s motion for a change of venue, where the motion was not supported by affidavits of two or more credible persons as required by this section. Gentry v. State, 416 So. 2d 650, 1982 Miss. LEXIS 2031 (Miss. 1982).

The defendant whose motion for a change of venue fails to comply with the requirements of Code 1942, § 2508 cannot on appeal assert that he was entitled to such a change by reason of pretrial publicity tending to prejudice the jury. Fabian v. State, 267 So. 2d 294, 1972 Miss. LEXIS 1408 (Miss. 1972).

Under the Fourteenth Amendment right to an impartial jury a defendant in a state misdemeanor prosecution to be tried by a jury must be given an opportunity to show that a change of venue is required in his case because of community prejudice against him, and a state law which categorically prevents a change of venue for a criminal jury trial, regardless of the extent of local prejudice against the defendant, on the sole ground that the charge against him is labeled a misdemeanor, is unconstitutional. Groppi v. Wisconsin, 400 U.S. 505, 91 S. Ct. 490, 27 L. Ed. 2d 571, 1971 U.S. LEXIS 88 (U.S. 1971).

In a murder prosecution, the court properly overruled defendant’s motion for a change of venue, which was made after the special venire had been summoned and while the jury was being impaneled to try the defendant, and which was not supported by the affidavits of two or more credible persons. Thompson v. State, 231 Miss. 624, 97 So. 2d 227, 1957 Miss. LEXIS 546 (Miss. 1957).

Denial, dictated into the record by the state, that a prisoner cannot get a fair and impartial trial does not meet the requirement that an affidavit for change of venue be met by the state by proof. McGee v. State, 200 Miss. 350, 26 So. 2d 680, 1946 Miss. LEXIS 298 (Miss. 1946).

It is not necessary that the prisoner himself swear to the application for change of venue where it appears from the affidavit of counsel filed before trial that the prisoner seems to be either insane or so shocked and mentally unbalanced since his arrest as to be unable to make a coherent statement and aid counsel in preparation of his defense. McGee v. State, 200 Miss. 350, 26 So. 2d 680, 1946 Miss. LEXIS 298 (Miss. 1946).

An application for a change of venue must conform strictly to this section [Code 1942, § 2508]. Purvis v. State, 71 Miss. 706, 14 So. 268 (Miss. 1893).

The prepayment of costs cannot be made a condition precedent to a change of venue. Rattray v. State, 61 Miss. 377, 1883 Miss. LEXIS 141 (Miss. 1883).

2. Examination of witnesses.

Application for change of venue in murder case held to present prima facie showing for change which state had right to contest by evidence. Wexler v. State, 167 Miss. 464, 142 So. 501, 1932 Miss. LEXIS 203 (Miss. 1932).

A proper application for change of venue present a prima facie showing for a change, which may be contested by the district attorney or the court may examine witnesses. Magness v. State, 103 Miss. 30, 60 So. 8, 1912 Miss. LEXIS 136 (Miss. 1912).

The statute does not give defendant a right to change of venue necessarily upon his compliance with its terms. The court has the right to examine other witnesses. Weeks v. State, 31 Miss. 490, 1856 Miss. LEXIS 107 (Miss. 1856); Mask v. State, 32 Miss. 405, 1856 Miss. LEXIS 225 (Miss. 1856); Cavanah v. State, 56 Miss. 299, 1879 Miss. LEXIS 116 (Miss. 1879); Dillard v. State, 58 Miss. 368, 1880 Miss. LEXIS 137 (Miss. 1880).

3. Reasons for change.

There is no constitutional right to have a jury mirror any particular community; thus, a capital murder defendant, who was granted a change of venue because of pretrial publicity, was not improperly denied a second change of venue to a county in which the racial makeup more closely reflected that of the county where the crime occurred where the jury that tried the defendant was selected in a nondiscriminatory manner, and there was no evidence that the jurors were not impartial. Carr v. State, 655 So. 2d 824, 1995 Miss. LEXIS 56 (Miss. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d 734, 1996 U.S. LEXIS 547 (U.S. 1996).

A trial court did not err in refusing to grant a change of venue when 54 out of the 106 persons in the venire had either discussed the case, read about it in the newspaper or had other knowledge concerning the case; the percentage of venire persons who have heard of the case is not, in and of itself, indicative of the need for a change of venue. Shook v. State, 552 So. 2d 841, 1989 Miss. LEXIS 449 (Miss. 1989).

Change of venue requested by defendant ordinarily should be granted in capital case where, under totality of circumstances, it appears reasonably likely that, in absence of such relief, defendant may lose his right to fair trial. Foster v. State, 508 So. 2d 1111, 1987 Miss. LEXIS 2557 (Miss. 1987), overruled in part, Powell v. State, 806 So. 2d 1069, 2001 Miss. LEXIS 271 (Miss. 2001).

A record showing that the defendant charged with rape was black and the victim was white, that a series of rapes had occurred in the community, that there was a supposition that defendant was guilty of other crimes, and that there had been extensive local media coverage, did not give rise to an irrebutable presumption that defendant could get a fair trial in the county where the offense was charged to have occurred, and, since the unfair trial presumption was rebuttable, the trial court did not err in overruling defendants’ motion for change of venue, where the state had met its burden in rebutting the presumption. White v. State, 495 So. 2d 1346, 1986 Miss. LEXIS 2698 (Miss. 1986).

Trial judge did not abuse his discretion in overruling homicide defendant’s motion for change of venue, where there was no over-saturated media coverage, and, with one exception, newscast’s and articles were typical and objective, and, since record did not contain the voir dire of prospective juror, it must be assumed that jurors who were seated had stated that they could give defendant a fair trial. Weeks v. State, 493 So. 2d 1280, 1986 Miss. LEXIS 2614 (Miss. 1986).

The trial court’s refusal in a capital murder prosecution to grant another change of venue from Harrison County did not deprive defendant of the right to have his case fairly and impartially tried and uninfluenced by the preponderant sentiment of the community, even though the trial court might better have moved the trial further away from Hancock County, where the reasons given for the move to Harrison County were that it had a continuous court term as opposed to the ten-week term in Hancock County, and that it would be more possible to select twelve jurors from the larger Harrison County. Billiot v. State, 454 So. 2d 445, 1984 Miss. LEXIS 1777 (Miss. 1984), cert. denied, 469 U.S. 1230, 105 S. Ct. 1232, 84 L. Ed. 2d 369, 1985 U.S. LEXIS 171 (U.S. 1985).

A motion for a change of venue, rather than a motion for continuance, is the usual procedure where an accused fears that he will be unable to get an impartial jury because of prejudicial pretrial publicity. Wilson v. J. Ed Turner, Inc., 221 So. 2d 368, 1969 Miss. LEXIS 1497 (Miss. 1969).

It is not necessary, in order for a defendant to be entitled to a change of venue, that it shall appear that every otherwise qualified juror in the county where the offense is charged to have been committed has prejudged the defendant’s case or bears a grudge or ill will against him, and the defendant should not be denied a change of venue, although it may appear that twelve unbiased men may be found in the county to try him. Gaddis v. State, 207 Miss. 508, 42 So. 2d 724, 1949 Miss. LEXIS 359 (Miss. 1949).

Motion for change of venue properly denied where evidence showed that a fair proportion of the people qualified for jury service in the county where qualified to try defendant’s case fairly and impartially and that there was no preponderant sentiment in the county against him. Gaddis v. State, 207 Miss. 508, 42 So. 2d 724, 1949 Miss. LEXIS 359 (Miss. 1949).

Motion for change of venue in criminal case is properly overruled when state shows by testimony of county officers and citizens from different parts of county that there is no aroused popular feeling against defendant, no public sentiment against him and that he can get a fair trial in county. Bone v. State, 207 Miss. 20, 41 So. 2d 347, 1949 Miss. LEXIS 314 (Miss. 1949).

A change of venue should be granted only for reasons given in this section [Code 1942, § 2508]. Long v. State, 133 Miss. 33, 96 So. 740, 1923 Miss. LEXIS 108 (Miss. 1923).

It is not necessary for the accused to show that every otherwise qualified juror in the county was prejudiced against him in order that he may be entitled to a change of venue. Keeton v. State, 132 Miss. 732, 96 So. 179, 1923 Miss. LEXIS 49 (Miss. 1923).

It is not error to refuse a change of venue where the record shows a fair and impartial trial. Walden v. State, 129 Miss. 686, 92 So. 820, 1922 Miss. LEXIS 81 (Miss. 1922).

A change of venue should be granted where the evidence shows that a fair and impartial trial cannot be had. Anderson v. State, 92 Miss. 656, 46 So. 65, 1908 Miss. LEXIS 203 (Miss. 1908); Eddins v. State, 110 Miss. 780, 70 So. 898, 1916 Miss. LEXIS 203 (Miss. 1916).

4. Review.

After declaring a mistrial, the circuit judge erred in transferring venue to another county on its own motion over defendant’s objection because the transfer of venue in a criminal case required defendant’s sworn petition, but defendant made no such petition in the current case; thus, the case had to be remanded for trial in Yazoo County. Miles v. State, 204 So.3d 745, 2016 Miss. LEXIS 485 (Miss. 2016).

Trial court erred in denying defendant’s motion for a change of venue in light of the fact that the State failed to rebut the presumption that arose upon defendant’s application for a change of venue. The State simply requested to proceed with voir dire without putting forth any witnesses or submitting any affidavits. Davis v. State, 196 So.3d 194, 2016 Miss. App. LEXIS 448 (Miss. Ct. App. 2016).

Defendant’s change of venue issue was without merit because defendant did not file a proper motion for change of venue, and there was no indication that defendant did not receive a fair trial by an impartial jury. Copple v. State, 117 So.3d 651, 2013 Miss. App. LEXIS 421 (Miss. Ct. App. 2013).

When the application for a change of venue was filed, along with two supporting affidavits stating that the defendant was unable to receive a fair trial in a particular area due to the publicity surrounding the case, a presumption arose that an impartial jury was unattainable, Miss. Code Ann. §99-15-35 (Rev. 2007); however, the State can rebut such a presumption by proving from voir dire that the trial court impaneled an impartial jury. Barfield v. State, 22 So.3d 1175, 2009 Miss. LEXIS 583 (Miss. 2009).

In a murder case, defendant’s right to a fair trial was not fundamentally compromised by the trial court’s denial of defendant’s motion for change of venue, and the trial court did not abuse its discretion in failing to grant defendant’s motion; although defendant argued that several jurors knew the victim or members of his family, defendant had ample opportunity to question members of the venire panel and to use both his peremptory challenges and challenges for cause. Stewart v. State, 29 So.3d 12, 2008 Miss. App. LEXIS 400 (Miss. Ct. App. 2008), cert. denied, 29 So.3d 774, 2010 Miss. LEXIS 106 (Miss. 2010).

Denial of defendant’s motion for a change of venue in his criminal trial was appropriate because defendant had ample opportunity to question members of the venire and to use both his peremptory challenges and challenges for cause. Conner v. State, 971 So. 2d 630, 2007 Miss. App. LEXIS 370 (Miss. Ct. App.), cert. denied, 973 So. 2d 244, 2007 Miss. LEXIS 682 (Miss. 2007).

If state shows impartial jury was impaneled, Supreme Court defers to trial court’s denial of change of venue request, even in face of adverse publicity, for venue decision is within discretion of lower court. (Per Justice Banks with the Chief Justice, a presiding Justice, and one Justice concurring and one presiding Justice concurring in result. Hickson v. State, 707 So. 2d 536, 1997 Miss. LEXIS 734 (Miss. 1997).

Supreme Court reviews trial court’s ruling on motion to change venue in criminal proceeding under an abuse of discretion standard. Holland v. State, 705 So. 2d 307, 1997 Miss. LEXIS 388 (Miss. 1997), cert. denied, 525 U.S. 829, 119 S. Ct. 80, 142 L. Ed. 2d 63, 1998 U.S. LEXIS 5017 (U.S. 1998).

When defendant alleges that he cannot obtain impartial jury without change of venue, lower court’s decision to deny such motion is within trial judge’s sound discretion; decision of lower court will not be overturned if that discretion has not been abused. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

Denial of defendant’s motion for change of venue was not abuse of discretion, where upon questioning, during voir dire, some of prospective jurors stated that they had heard about the case, but none stated that they had heard, read or otherwise acquired knowledge of the case that would affect how he or she might view the evidence. Cabello v. State, 490 So. 2d 852, 1986 Miss. LEXIS 2479 (Miss. 1986).

Where the entire record in a murder case, viewed from its conclusion and as an entirety, showed that the defendant has had a fair and impartial trial, free from bias and prejudice, the defendant has no right to complain because he was denied a change of venue. Thompson v. State, 231 Miss. 624, 97 So. 2d 227, 1957 Miss. LEXIS 546 (Miss. 1957).

Granting of change of venue is so largely in discretion of trial court that a judgment or conviction will not be reversed on appeal, on ground that a change of venue was refused, unless it clearly appears that the trial court abused its discretion. Shimniok v. State, 197 Miss. 179, 19 So. 2d 760, 1944 Miss. LEXIS 289 (Miss. 1944).

In determining whether trial court abused its discretion in denying motion for change of venue, supreme court will consider the voir dire examination of prospective jurors, the result of the effort to obtain a trial jury, and the evidence on the merits of the case. Shimniok v. State, 197 Miss. 179, 19 So. 2d 760, 1944 Miss. LEXIS 289 (Miss. 1944).

In testing the fairness or bias of the jurors to determine whether trial court abused its discretion in denying motion for change of venue, supreme court may look to the verdict reached viewed in the light of the evidence on the merits as a completed trial. Shimniok v. State, 197 Miss. 179, 19 So. 2d 760, 1944 Miss. LEXIS 289 (Miss. 1944).

The supreme court will review all the evidence where refusal to grant change of venue is properly assigned. Bond v. State, 128 Miss. 792, 91 So. 461, 1922 Miss. LEXIS 167 (Miss. 1922).

Unless there has been an abuse of discretion by the circuit court, the supreme court will not reverse for a refusal to grant a change of venue. Stewart v. State, 50 Miss. 587, 1874 Miss. LEXIS 97 (Miss. 1874); Bishop v. State, 62 Miss. 289, 1884 Miss. LEXIS 72 (Miss. 1884); Regan v. State, 87 Miss. 422, 39 So. 1002, 1905 Miss. LEXIS 149 (Miss. 1905); Dalton v. State, 141 Miss. 841, 105 So. 784, 1925 Miss. LEXIS 199 (Miss. 1925).

5. Particular circumstances.

Defendant was not entitled to a change of venue pursuant to Miss. Code Ann. §99-15-35 because the record lacked any persuasive evidence of “inordinate” media coverage; defendant produced only two online news articles, and each of the five veniremen called by the State denied any familiarity with the details of the allegations against defendant, each had never discussed the case or heard it discussed, and each believed defendant could receive a fair trial in the county. Slade v. State, 42 So.3d 25, 2009 Miss. App. LEXIS 640 (Miss. Ct. App. 2009).

Defendant’s motion for a change of venue was not in writing, was not supported by the affidavits of two or more credible persons, and was therefore procedurally barred under Miss. Code Ann. §99-15-35; in addition, the trial court found that the allegations of judicial bias were unfounded, that the sheriff’s department had not been uncooperative, that third-hand evidence of threats against one of defendant’s witnesses was inadmissible hearsay, and that the jury had affirmed during voir dire testimony that media coverage of defendant’s trial would not affect their impartiality. Mingo v. State, 944 So. 2d 18, 2006 Miss. LEXIS 679 (Miss. 2006).

In a capital murder case, the trial court did not err in not granting defendant a change of venue where no motion for change of venue appeared in the record, defendant failed to demonstrate that she was prejudiced by the denial of her “motion,” and there was no evidence demonstrating that the failure to move the trial to another county was prejudicial to defendant. Byrom v. State, 863 So. 2d 836, 2003 Miss. LEXIS 535 (Miss. 2003), cert. denied, 543 U.S. 826, 125 S. Ct. 71, 160 L. Ed. 2d 40, 2004 U.S. LEXIS 5754 (U.S. 2004).

As the State produced evidence that a fair and impartial jury was actually selected, the venire members having not responded to inquiries from the trial court as to whether they had heard or read anything about the case that would prevent them from being fair and impartial, defendant did not meet his burden of showing that the trial judge abused his discretion when he overruled defendant’s motion for change of venue. Nichols v. State, 868 So. 2d 355, 2003 Miss. App. LEXIS 682 (Miss. Ct. App. 2003), cert. denied, 868 So. 2d 345, 2004 Miss. LEXIS 255 (Miss. 2004).

The trial court did not err in denying the defendant’s motion for a change of venue since, while a number of jurors had “heard” of the case, none of the responses to the voir dire questions showed any bias or prejudice toward the defendant’s innocence or guilt and nothing in the record evinced any passion or outrage toward the defendant. Gulley v. State, 779 So. 2d 1140, 2001 Miss. App. LEXIS 6 (Miss. Ct. App. 2001).

In a murder prosecution, the court did not err when it first transferred venue to another county and then amended the order to transfer venue only for the limited purpose of selecting jurors, retaining the actual trial of the matter for reasons of practicality. Brown v. State, 749 So. 2d 82, 1999 Miss. LEXIS 344 (Miss. 1999).

The judge did not abuse his discretion in selecting the county for the defendant’s murder prosecution and the defendant was not entitled to a change of venue where (1) coverage of the defendant’s crime in the chosen county was much less extensive than in other areas of the state, and (2) although some jurors read newspaper articles about the trial, all stated that they could be fair and impartial. Evans v. State, 725 So. 2d 613, 1997 Miss. LEXIS 389 (Miss. 1997), cert. denied, 525 U.S. 1133, 119 S. Ct. 1097, 143 L. Ed. 2d 34, 1999 U.S. LEXIS 1510 (U.S. 1999).

Trial court had authority, in highly publicized prosecution for murder of black leader of civil rights organization, to transfer venue for trial purposes to county which had more accommodating facilities and large law enforcement contingent to provide proper security. De La Beckwith v. State, 707 So. 2d 547, 1997 Miss. LEXIS 749 (Miss. 1997), cert. denied, 525 U.S. 880, 119 S. Ct. 187, 142 L. Ed. 2d 153, 1998 U.S. LEXIS 5751 (U.S. 1998).

Defendant failed to properly support his motion to change venue, where defendant did not provide trial court with any affidavits swearing that he could not receive fair and impartial trial. Hoops v. State, 681 So. 2d 521, 1996 Miss. LEXIS 433 (Miss. 1996).

By attaching to motion for change of venue five form affidavits indicating that affiants thought that defendant could not get fair trial in county due to ill will toward defendant, defendant successfully raised rebuttable presumption to demonstrate that impartial jury could not be impaneled. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

Murder defendant was not entitled to change of venue; none of the 12 jurors who served on defendant’s case indicated that they had read about defendant’s case or formed opinion one way or the other about his innocence vel non, witnesses in hearing on motion for change of venue, save one, testified that there had not been a lot of discussion about case, and all save one indicated that they were aware of no ill will or malice harbored by residents of county toward defendant. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

A trial court did not abuse its discretion in denying a defendant’s motion for change of venue, which was primarily based on extensive publicity prior to trial, even though evidence otherwise inadmissible was contained in published reports of the crime and the victim was a prominent person in the county, where the state presented 11 witnesses who testified that they were familiar with the county and its residents, that there was no prejudice against the defendant, and that in their opinions the defendant could receive a fair trial, while the defendant presented one witness who testified on cross-examination that he felt the publicity had not so saturated the community that the defendant could not receive a fair trial, and presented 2 other witnesses, who were related to the defendant by marriage, who testified that the defendant could not obtain a fair trial but did not testify to familiarity with the county and its residents. Berry v. State, 575 So. 2d 1, 1990 Miss. LEXIS 849 (Miss. 1990), cert. denied, 500 U.S. 928, 111 S. Ct. 2042, 114 L. Ed. 2d 126, 1991 U.S. LEXIS 2673 (U.S. 1991).

Publicity associating a defendant with 3 robberies and 3 rapes was insufficient to entitle him to a change of venue for his trial for rape where the publicity consisted of 4 newspaper articles, 3 of which appeared on the front page, and 6 months of silence intervened between the publicity and the trial. McKinney v. State, 521 So. 2d 898, 1988 Miss. LEXIS 112 (Miss. 1988), cert. denied, 494 U.S. 1017, 110 S. Ct. 1321, 108 L. Ed. 2d 497, 1990 U.S. LEXIS 1182 (U.S. 1990).

A defendant waived his right to a change of venue where he filed a motion for change of venue with 2 supporting affidavits prior to selection of the jury but did not call the motion to the trial court’s attention and did not request a hearing on the motion until after completion of voir dire, after selection of the jury, and after both sides had announced their readiness for trial. Wash v. State, 521 So. 2d 890, 1988 Miss. LEXIS 115 (Miss. 1988), overruled, Wharton v. State, 734 So. 2d 985, 1998 Miss. LEXIS 576 (Miss. 1998).

Trial court did not commit error in refusing to grant defendant’s motion for change of venue where motion was filed along with 4 affidavits stating that defendant could not obtain fair trial in county, because at hearing on motion, 4 witnesses testified they had heard some talk about case, one admitted he had not heard anything for a month or two, 5 witnesses testified for state and 4 of them testified they had spoken to hundreds of people throughout county and had heard no expressions about case one way or other, and fifth, editor of newspaper, testified that newspaper publicity on case amounted to short piece in one edition and short paragraph in another. Burney v. State, 515 So. 2d 1154, 1987 Miss. LEXIS 2905 (Miss. 1987), but see McCarty v. State, 554 So. 2d 909, 1989 Miss. LEXIS 499 (Miss. 1989).

It was not error for Circuit Court to refuse to order change of venue despite testimony by county tax assessor admitting that rape of 76-year-old white female by 24-year-old black male could well be type of case that would subject accused to unfair trial by partial jury, and testimony of newspaper owner and editor that such crime would be volatile sort of thing that people would have strong feelings about. Johnson v. State, 511 So. 2d 1360, 1987 Miss. LEXIS 2667 (Miss. 1987).

Where sixty-five per cent of jurors examined to try defendant accused of murder say that they either have fixed opinions which cannot be changed by evidence or that they are so biased or prejudiced against him that they cannot give him a fair trial, it is impossible for accused to obtain fair and impartial trial in county and motion for change of venue should be granted. Seals v. State, 208 Miss. 236, 44 So. 2d 61, 1950 Miss. LEXIS 242 (Miss. 1950).

Denial of motions for change of venue in homicide prosecution were without prejudice to accused where testimony of witnesses from all parts of county supported contention that accused could get a fair and impartial trial, and no special precautions were needed or taken; and fact that seven out of the first twenty-one jurors called were disqualified because of fixed opinions did not imply any purpose inconsistent with a guaranty of a fair and unbiased jury, particularly in view of the fact that defendant only exercised eight of his twelve peremptory challenges. Patton v. State, 207 Miss. 120, 40 So. 2d 592, 1949 Miss. LEXIS 322 (Miss.), cert. denied, 338 U.S. 855, 70 S. Ct. 104, 94 L. Ed. 523, 1949 U.S. LEXIS 1796 (U.S. 1949).

Request for change of venue held properly denied within discretion of court at third trial of defendant for rape some two and one-half years after alleged offense where defendant’s safety was not in jeopardy and many witnesses testified a fair trial could be had notwithstanding at the time of alleged offense state militia was called to protect the defendant. McGee v. State, 40 So. 2d 160 (Miss.), cert. denied, 338 U.S. 805, 70 S. Ct. 77, 94 L. Ed. 487, 1949 U.S. LEXIS 1886 (U.S. 1949).

A prima facie case for change of venue is made out where it is shown that the public is so aroused against the accused that it was necessary to call out the militia or otherwise protect him from violence or to remove him from the county. McGee v. State, 200 Miss. 350, 26 So. 2d 680, 1946 Miss. LEXIS 298 (Miss. 1946).

Trial court did not abuse its discretion in denying motion for change of venue in prosecution for murder of popular former sheriff, wherein defendants, who were from out of state, were convicted and death sentence imposed, in view of the effort to obtain an unbiased jury and the evidence on the merits of the case, and where twelve citizens of the county testified positively that they knew of no reason why an unbiased jury could not be secured and a fair trial had, notwithstanding that defendants’ counsel made charges, supported by affidavits, that they had talked with a number of citizens of the county and the feeling was general that defendants were guilty and should receive the death sentence. Shimniok v. State, 197 Miss. 179, 19 So. 2d 760, 1944 Miss. LEXIS 289 (Miss. 1944).

Where one is indicted in the same county for two offenses and is entitled to a change of venue for one under this section [Code 1942, § 2508], he should be granted a change as to the other, if the connection between the offenses is such that the prejudgment, grudge or ill will which entitled him to the change granted in one operates adversely to him in the other case although the crime charged in the other case did not produce such prejudgment. Owens v. State, 82 Miss. 31, 33 So. 722, 1903 Miss. LEXIS 106 (Miss. 1903).

Instances of improper refusal of application for change of venue. Tennison v. State, 79 Miss. 708, 31 So. 421, 1901 Miss. LEXIS 121 (Miss. 1901); Brown v. State, 83 Miss. 645, 36 So. 73, 1903 Miss. LEXIS 85 (Miss. 1903); Magness v. State, 103 Miss. 30, 60 So. 8, 1912 Miss. LEXIS 136 (Miss. 1912).

6. Publicity.

Of the articles submitted by defendant, where only three articles dated from 1998 identified the race of defendant, but none of which identified the race of the victim, the articles did not constitute an inordinate amount of media coverage; also, no venire member responded to the trial court’s question that he or she had read, heard, or seen anything regarding the case, and thus the trial court did not abuse its discretion in denying defendant’s motion for a change of venue. King v. State, 960 So. 2d 413, 2007 Miss. LEXIS 317 (Miss. 2007), cert. denied, 552 U.S. 1190, 128 S. Ct. 1223, 170 L. Ed. 2d 77, 2008 U.S. LEXIS 1244 (U.S. 2008).

In light of the scant amount of media coverage combined with the defendant’s failure to submit the requisite affidavits of two or more credible persons as support for his motion for change of venue until the day of trial and after the jury pool had been called and seated, the evidence did not cast a cloud upon the defendant’s right to a fair trial before an impartial jury. Conner v. State, 726 So. 2d 1238, 1998 Miss. App. LEXIS 1082 (Miss. Ct. App. 1998).

Pretrial publicity about sexual battery of church secretary in pastor’s office of church in small town entitled defendant to change of venue, even though jurors stated that they could be fair and impartial; 11 jurors had read or watched media coverage of case, that coverage recounted another sexual battery charge against defendant, juror asked about this incident in deliberations, scientific evidence did not conclusively show guilt for rape, and case turned on credibility of witnesses. (Per Justice Banks with the Chief Justice, a presiding Justice, and one Justice concurring and one presiding Justice concurring in result. Hickson v. State, 707 So. 2d 536, 1997 Miss. LEXIS 734 (Miss. 1997).

Denial of defendant’s motion for change of venue for resentencing in capital case was not abuse of discretion; there had been period of several years without newspaper or television coverage of case, and of six venirepersons who stated they had prior knowledge of case, those who stated their knowledge would affect verdict were removed and those two who remained stated their knowledge would not bar them from serving impartially. Holland v. State, 705 So. 2d 307, 1997 Miss. LEXIS 388 (Miss. 1997), cert. denied, 525 U.S. 829, 119 S. Ct. 80, 142 L. Ed. 2d 63, 1998 U.S. LEXIS 5017 (U.S. 1998).

Two factors are evaluated in determining whether trial court abused its discretion in denying motion to change venue in criminal proceeding; level of adverse publicity, both in extent of coverage and its inflammatory nature, and the extent of the effect the publicity had upon venire persons in case. Holland v. State, 705 So. 2d 307, 1997 Miss. LEXIS 388 (Miss. 1997), cert. denied, 525 U.S. 829, 119 S. Ct. 80, 142 L. Ed. 2d 63, 1998 U.S. LEXIS 5017 (U.S. 1998).

7. Fair trial.

Trial judge properly denied defendant’s motion for change of venue because it was procedurally barred, as it did not conform with the requirements set forth in this statute, specifically, defendant failed to swear to the petition for change of venue; and, procedural bar notwithstanding, the trial judge considered the evidence presented and concluded that defendant was able to have a fair and impartial trial in Panola County as there had been little publicity in 2012 regarding the setting aside of defendant’s guilty plea and sentence; and there had been an in-depth voir dire of jurors during jury selection. Clark v. State, 233 So.3d 832, 2017 Miss. App. LEXIS 129 (Miss. Ct. App.), cert. denied, — So.3d —, 2017 Miss. LEXIS 518 (Miss. 2017).

Defendant’s conviction for the sale of cocaine was appropriate because the denial of her motion for a change of venue was correct since none of the venire persons indicated to the trial judge that they would have had difficulty in granting defendant a fair trial. Based on the questions asked by the trial judge and the lack of any affirmative responses thereto, an impartial was impaneled and a change of venue was not warranted. Simmons v. State, 13 So.3d 844, 2009 Miss. App. LEXIS 471 (Miss. Ct. App. 2009).

Defendant’s motion for change of venue was properly denied because there was no evidence in the record to indicate that the jurors were not fair and impartial; the trial judge took appropriate steps, through voir dire, jury instruction, and sequestration, to ensure that defendant’s right to a fair trial was preserved. Welde v. State, 3 So.3d 113, 2009 Miss. LEXIS 70 (Miss. 2009).

Petitioner was denied post-conviction relief from her capital murder conviction and death sentence based on her claim of ineffective assistance of counsel due to her counsel’s failure to actively pursue a change of venue, because the court had considered the issue of counsel’s pursuit of a change of venue on direct appeal and found no motion for change of venue in the record; there was no indication that such a motion had been presented to the trial judge or ruled on, and there was no evidence in the record, nor was it demonstrated by petitioner in her brief, that the failure to move her trial to another county was prejudicial to her case. Although petitioner’s claim was procedurally barred, the court considered the issue and found that petitioner failed to make a satisfactory showing that she did not receive a fair and impartial trial in the county where the offense was charged as required by Miss. Code Ann. §99-15-35; the trial judge took steps, suggested and condoned by petitioner’s counsel, to preserve the jury’s impartiality. Byrom v. State, 927 So. 2d 709, 2006 Miss. LEXIS 43 (Miss.), cert. denied, 549 U.S. 1056, 127 S. Ct. 662, 166 L. Ed. 2d 520, 2006 U.S. LEXIS 9076 (U.S. 2006).

Defendant failed to show that his trial counsel’s performance was deficient on the issue of seeking a change of venue of his capital murder trial, pursuant to Miss. Code Ann. §99-15-35, as no one in the community agreed to sign an affidavit to support the change of venue motion, four newspaper articles had been entered into evidence, of 10 witnesses who were randomly selected from the jury pool, nine indicated that they felt that defendant would get a fair trial in the present county, and defendant did not offer any proof that there was available evidence or testimony not admitted by defense counsel during the hearing. Grayson v. State, 879 So. 2d 1008, 2004 Miss. LEXIS 721 (Miss. 2004), cert. denied, 543 U.S. 1155, 125 S. Ct. 1301, 161 L. Ed. 2d 122, 2005 U.S. LEXIS 1593 (U.S. 2005).

Where defendant presents court with application for change of venue accompanied by two affidavits which affirm defendant’s inability to receive fair trial in particular location, presumption is created that it is impossible for fair trial in that place. (Per Justice Banks with the Chief Justice, a presiding Justice, and one Justice concurring and one presiding Justice concurring in result. Hickson v. State, 707 So. 2d 536, 1997 Miss. LEXIS 734 (Miss. 1997).

Presumption that defendant cannot receive fair trial, but needs change of venue, may be rebutted if state proves from voir dire that trial court impaneled impartial jury. (Per Justice Banks with the Chief Justice, a presiding Justice, and one Justice concurring and one presiding Justice concurring in result. Hickson v. State, 707 So. 2d 536, 1997 Miss. LEXIS 734 (Miss. 1997).

Presumption of inability to conduct fair trial in a venue arises with an application for change of venue supported by two affidavits affirming defendant’s inability to receive fair trial. Holland v. State, 705 So. 2d 307, 1997 Miss. LEXIS 388 (Miss. 1997), cert. denied, 525 U.S. 829, 119 S. Ct. 80, 142 L. Ed. 2d 63, 1998 U.S. LEXIS 5017 (U.S. 1998).

State can rebut presumption of inability to conduct fair trial in original venue by proving from voir dire that trial court impaneled an impartial jury; if state demonstrates such, Supreme Court will not overturn trial court’s finding that an impartial jury could be found, despite adverse publicity. Holland v. State, 705 So. 2d 307, 1997 Miss. LEXIS 388 (Miss. 1997), cert. denied, 525 U.S. 829, 119 S. Ct. 80, 142 L. Ed. 2d 63, 1998 U.S. LEXIS 5017 (U.S. 1998).

8. Discretion.

Although venue issue is committed to trial judge’s sound discretion, it is not left up to his unfettered discretion; the discretion must be informed by evidence presented at venue hearing coupled with trial judge’s reasoned application of sense of community and awareness of impact of saturation media publicity upon attitudes of community. (Per Justice Banks with the Chief Justice, a presiding Justice, and one Justice concurring and one presiding Justice concurring in result. Hickson v. State, 707 So. 2d 536, 1997 Miss. LEXIS 734 (Miss. 1997).

RESEARCH REFERENCES

ALR.

Right of prosecution to writ of certiorari in criminal case. 91 A.L.R.2d 1095.

Right of accused in misdemeanor prosecution to change of venue on grounds of inability to secure fair trial and the like. 34 A.L.R.3d 804.

Change of venue by state in criminal case. 46 A.L.R.3d 295.

Choice of venue to which transfer is to be had, where change is sought because of local prejudice. 50 A.L.R.3d 760.

Right of indigent defendant in state criminal case to assistance of expert in social attitudes. 74 A.L.R.4th 330.

Right of indigent defendant in state criminal case to assistance of chemist, toxicologist, technician, narcotics expert, or similar nonmedical specialist in substance analysis. 74 A.L.R.4th 388.

Power of state trial court in criminal case to change venue on its own motion. 74 A.L.R.4th 1023.

Am. Jur.

21 Am. Jur. 2d, Criminal Law §§ 477 et seq.

8 Am. Jur. Pl & Pr Forms (Rev), Criminal Procedure, Forms 151 et seq. (venue).

1 Am. Jur. Trials, Controlling Trial Publicity, § 32.

CJS.

22 C.J.S., Criminal Law §§ 239 et seq.

Cross References —

On change of venue, defendant to be tried on copy of indictment, see §99-15-39.

Correcting errors in the record, see §99-15-41.

Change of venue in capital cases, see §99-15-43.

Severance of joint indictments in felony cases, see §99-15-47.

JUDICIAL DECISIONS

1. In general.

A defendant waived his claim that he was improperly tried in a new venue because a certified copy of his indictment had never been transmitted to the new venue, where the defendant did not assert this claim prior to trial; alternatively, the circuit court cured any error under the authority of §99-15-41. Hansen v. State, 592 So. 2d 114, 1991 Miss. LEXIS 876 (Miss. 1991), cert. denied, 504 U.S. 921, 112 S. Ct. 1970, 118 L. Ed. 2d 570, 1992 U.S. LEXIS 2882 (U.S. 1992).

The presumption that the clerk of the circuit court where the original indictment was found did his duty under this section [Code 1942, § 2509] is not overcome by the testimony of the clerk of the circuit court to which the venue is changed that he had received the transcript by mail. McDonald v. State, 78 Miss. 369, 29 So. 171, 1900 Miss. LEXIS 143 (Miss. 1900).

RESEARCH REFERENCES

ALR.

Power or duty of prosecuting attorney to proceed with prosecution after change of venue. 60 A.L.R.2d 864.

Binding effect of order on motion for change of venue, where action is terminated otherwise than on merits and reinstituted. 85 A.L.R.2d 993.

Cross References —

Transfer of records to removal court, see §99-15-37.

Correcting errors in the record, see §99-15-41.

JUDICIAL DECISIONS

1. In general.

A defendant waived his claim that he was improperly tried in a new venue because a certified copy of his indictment had never been transmitted to the new venue, where the defendant did not assert this claim prior to trial; alternatively, the circuit court cured any error under the authority of §99-15-41. Hansen v. State, 592 So. 2d 114, 1991 Miss. LEXIS 876 (Miss. 1991), cert. denied, 504 U.S. 921, 112 S. Ct. 1970, 118 L. Ed. 2d 570, 1992 U.S. LEXIS 2882 (U.S. 1992).

The copy of the indictment transmitted must show the indorsement of “filed,” which is made by statute evidence of its finding and return. Williamson v. State, 64 Miss. 229, 1 So. 171, 1886 Miss. LEXIS 50 (Miss. 1886).

The court to which the venue is changed must try the accused not on the original indictment but upon a certified copy. Browning v. State, 30 Miss. 656, 1856 Miss. LEXIS 16 (Miss. 1856); Browning v. State, 33 Miss. 47, 1856 Miss. LEXIS 234 (Miss. 1856); Williamson v. State, 64 Miss. 229, 1 So. 171, 1886 Miss. LEXIS 50 (Miss. 1886).

The record transmitted must appear to be a record of the proceedings upon the indictment on which the prisoner is tried. Jenkins v. State, 30 Miss. 408, 1855 Miss. LEXIS 107 (Miss. 1855).

JUDICIAL DECISIONS

1. In general.

A defendant waived his claim that he was improperly tried in a new venue because a certified copy of his indictment had never been transmitted to the new venue, where the defendant did not assert this claim prior to trial; alternatively, the circuit court cured any error under the authority of this section. Hansen v. State, 592 So. 2d 114, 1991 Miss. LEXIS 876 (Miss. 1991), cert. denied, 504 U.S. 921, 112 S. Ct. 1970, 118 L. Ed. 2d 570, 1992 U.S. LEXIS 2882 (U.S. 1992).

Cross References —

Showing of need and grounds for change of venue generally, see §99-15-35.

Severance of joint indictments in felony cases, see §99-15-47.

JUDICIAL DECISIONS

1. In general.

In the trial of a capital murder charge, there was no error in denial of a change of venue where the trial judge found after voir dire of the jury that the panel represented a cross-section of the county and that, based upon the prospective jurors’ responses, a fair jury could be drawn. Wiley v. State, 484 So. 2d 339, 1986 Miss. LEXIS 2405 (Miss.), cert. denied, 479 U.S. 906, 107 S. Ct. 304, 93 L. Ed. 2d 278, 1986 U.S. LEXIS 4339 (U.S. 1986), overruled, Willie v. State, 585 So. 2d 660, 1991 Miss. LEXIS 454 (Miss. 1991).

In a murder prosecution, the court properly overruled defendant’s motion for a change of venue, which was made after the special venire had been summoned and while the jury was being impaneled to try the defendant, and which was not supported by the affidavits of two or more credible persons. Thompson v. State, 231 Miss. 624, 97 So. 2d 227, 1957 Miss. LEXIS 546 (Miss. 1957).

Under this section [Code 1942, § 2512] an application for a change of venue is not too late if it is made after the quash of the venire but before the writ of another is issued. Purvis v. State, 71 Miss. 706, 14 So. 268 (Miss. 1893).

RESEARCH REFERENCES

ALR.

Power of state trial court in criminal case to change venue on its own motion. 74 A.L.R.4th 1023.

Law Reviews.

1978 Mississippi Supreme Court Review: Criminal Law and Procedure. 50 Miss. L. J. 59, March, 1979.

Cross References —

Change of venue in capital cases, see §99-15-43.

Severance of joint indictments in misdemeanors, see §99-15-49.

Joint defendants, tried separately, are competent witnesses for one another, see §99-17-17.

Arraignment of defendants who are jointly charged, see Miss. Unif. Cir. & County Ct. Prac. R. 8.01.

Severance of offenses and defendants, see Miss. Unif. Cir. & County Ct. Prac. R. 9.03.

Joint indictments, see Miss. Unif. Cir. & County Ct. Prac. R. 7.08.

JUDICIAL DECISIONS

1. In general.

2. When made.

1. In general.

Trial court’s refusal to sever defendants was not an abuse of discretion, as there was no showing either defendant was prejudiced by the denial of the severance: neither sought exculpation at the expense of the other; the evidence, except as to a bite mark that implicated the first defendant, went to the guilt of both defendants; and other evidence did not exclude the second defendant from causing any of the victim’s other injuries. Stubbs v. State, 845 So. 2d 656, 2003 Miss. LEXIS 115 (Miss. 2003).

The statute does not require that persons jointly indicted for capital murder, where the state intends to seek the death penalty, must be tried separately. Smith v. State, 729 So. 2d 1191, 1998 Miss. LEXIS 590 (Miss. 1998), cert. denied, 527 U.S. 1043, 119 S. Ct. 2410, 144 L. Ed. 2d 808, 1999 U.S. LEXIS 4551 (U.S. 1999).

Nothing in the statute requires that persons jointly indicted for capital murder, where the state intends to seek the death penalty, must be tried separately; the statute only provides that co-indictees may be tried separately, at the trial court’s discretion, when a motion for severance is timely filed. Smith v. State, 724 So. 2d 280, 1998 Miss. LEXIS 589 (Miss. 1998).

A trial court erred in refusing to grant a defendant’s request for a severance where the evidence offered by the State implicated both the defendant and the codefendant equally in the commission of the crime, and the testimony of both of them tended to exculpate themselves at the expense of the other; if a severance had been granted, the jury would have been able to consider the defendant’s defense in light of the State’s evidence without first comparing it to the codefendant’s defense to make sure the defenses were consistent, and a separate trial would ensure that the defendant was convicted solely on the basis of the State’s evidence and not because he and the codefendant had inconsistent defenses. Tillman v. State, 606 So. 2d 1103, 1992 Miss. LEXIS 533 (Miss. 1992), overruled in part, White v. State, 785 So. 2d 1059, 2001 Miss. LEXIS 44 (Miss. 2001).

Whether or not 2 defendants’ statements given to officers were in conflict is not the test in deciding whether an attorney has a conflict of interest in representing the 2 defendants. The test is whether their defenses are in conflict with each other. This is important in determining both whether their trials should be severed and whether or not the attorney is placed in an unethical position in having to represent them both. Carol v. State, 540 So. 2d 1330, 1989 Miss. LEXIS 166 (Miss. 1989).

The criteria to be used to determine if the denial of a motion for severance is proper are whether or not the testimony of one co-defendant tends to exculpate him or herself at the expense of the other defendant and whether the balance of the evidence introduced at trial tends to go more to the guilt of one defendant rather than the other. Hawkins v. State, 538 So. 2d 1204, 1989 Miss. LEXIS 91 (Miss. 1989).

Where the testimony of co-defendants is adverse, it is reversible error for the circuit judge to overrule a motion for severance, timely made. Rigby v. State, 485 So. 2d 1060, 1986 Miss. LEXIS 2785 (Miss. 1986).

A directed verdict of acquittal as to other co-defendants dissipated harm to the remaining defendant resulting from judge’s error in refusing to grant severance. Rigby v. State, 485 So. 2d 1060, 1986 Miss. LEXIS 2785 (Miss. 1986).

Trial court may refuse to grant motion for severance filed by defendant in prosecution for robbery with deadly weapon where there does not appear to be conflict of interest among codefendant and evidence introduced at trial does not go more to guilt of one defendant than to other. Duckworth v. State, 477 So. 2d 935, 1985 Miss. LEXIS 2455 (Miss. 1985).

In prosecution of the parents for the capital murder of their child, the trial court did not abuse its discretion in denying the defendants’ motion for severance made pursuant to this section. Cardwell v. State, 461 So. 2d 754, 1984 Miss. LEXIS 2060 (Miss. 1984).

Whether a severance should be granted pursuant to this section is addressed to the discretion of the trial judge. Price v. State, 336 So. 2d 1311, 1976 Miss. LEXIS 1557 (Miss. 1976).

Since a right to a separate trial does not give defendants a corresponding right to be tried jointly, and the court in its discretion may order separate trials over an objection that defendants should be tried together, the trial court did not err in trying separately a defendant who had been jointly indicted with another for murder. Thompson v. State, 231 Miss. 624, 97 So. 2d 227, 1957 Miss. LEXIS 546 (Miss. 1957).

In the prosecution of several defendants for grand larceny of tung nuts, although the defendants had a right to severance by applying for it before arraignment, under this section [Code 1942, § 2514] the granting of severance was discretionary with the trial court where application was made after the arraignment. Dueitt v. State, 225 Miss. 254, 83 So. 2d 91, 1955 Miss. LEXIS 579 (Miss. 1955).

In case where several defendants jointly indicted are granted a severance but are thereafter tried jointly on the indictment without objection on their part they waive their right to a separate trial. Wellborn v. State, 140 Miss. 640, 105 So. 769, 1925 Miss. LEXIS 300 (Miss. 1925).

This section [Code 1942, § 2514], if severance be seasonably applied for, does not otherwise change the common law. Malone v. State, 77 Miss. 812, 26 So. 968, 1900 Miss. LEXIS 3 (Miss. 1900).

2. When made.

It was within the trial court’s discretion as to whether severance should be granted where the record did not indicate that the right to move for severance had been reserved prior to arraignment. Rooks v. State, 529 So. 2d 546, 1988 Miss. LEXIS 232 (Miss. 1988).

Sustaining a motion for severance, even though it is timely made, is ordinarily discretionary with the circuit judge in all criminal trials, except death penalty cases. Rigby v. State, 485 So. 2d 1060, 1986 Miss. LEXIS 2785 (Miss. 1986).

Motion for severance which is not brought to court’s attention before state has announced ready for trial on date set for trial is properly denied. Minor v. State, 482 So. 2d 1107, 1986 Miss. LEXIS 2352 (Miss. 1986).

In a prosecution for armed robbery the trial court did not abuse its discretion in denying defendant’s motion for a severance during the middle of the trial, where defendant’s attorney testified that he elected to have codefendants tried together as part of his trial strategy despite his pretrial knowledge of the potential conflict of interest between the codefendants. Hicks v. State, 419 So. 2d 215, 1982 Miss. LEXIS 2141 (Miss. 1982).

In a prosecution for burglary in which defendants were jointly tried and convicted, the trial court did not err in overruling defendants’ motion for severance where the motion, made over four months after trial and one month after the trial record was filed in the Supreme Court, was patently untimely. Usry v. State, 378 So. 2d 635, 1979 Miss. LEXIS 2540 (Miss. 1979).

It was within the discretion of the trial court to refuse to grant a motion for severance by defendant jointly indicated for burglary, and it did not abuse that discretion in denying defendant’s motion, which was not filed until one day before the case was set for trial. Ivory v. State, 336 So. 2d 732, 1976 Miss. LEXIS 1518 (Miss. 1976).

Where an application for severance is made after arraignment of defendant, charged with assault and battery with intent to kill, the granting of a severance is discretionary with the trial court. Bolin v. State, 209 Miss. 866, 48 So. 2d 581, 1950 Miss. LEXIS 452 (Miss. 1950).

Assignment of error cannot be considered on bills of exception signed and filed five months after trial and two months after record filed in supreme court, where failure to grant a severance is complained of. Davis v. State, 144 Miss. 551, 110 So. 447, 1926 Miss. LEXIS 414 (Miss. 1926).

RESEARCH REFERENCES

ALR.

Right to severance where codefendant has incriminated himself. 54 A.L.R.2d 830.

Antagonistic defenses as ground for separate trials of codefendants in criminal case. 82 A.L.R.3d 245.

Rights of defendants in prosecution for criminal conspiracy to separate trials. 82 A.L.R.3d 366.

Antagonistic Defenses as Ground for Separate Trials of Codefendants in Criminal Cases - State Narcotics Offenses. 19 A.L.R.6th 115.

Antagonistic Defenses as Ground for Separate Trials of Codefendants in State Homicide Offenses - Applicable Standard and Extent of Antagonism Required. 24 A.L.R. 6th 591.

Am. Jur.

41 Am. Jur. 2d, Indictments and Informations §§ 196 et seq.

8 Am. Jur. Pl & Pr Forms (Rev), Criminal Procedure, Forms 321, 322 (severance).

5 Am. Jur. Trials, Pretrial Procedures and Motions, §§ 53 et seq.

CJS.

23 C.J.S., Criminal Law §§ 804, 806.

42 C.J.S., Indictments and Informations §§ 189 et seq.

Law Reviews.

1978 Mississippi Supreme Court Review: Criminal Law and Procedure. 50 Miss. L. J. 59, March, 1979.

1983 Mississippi Supreme Court Review: Severance of joint trials. 54 Miss L. J. 139, March, 1984.

Cross References —

Severance of joint indictments in felony cases, see §99-15-47.

Severance of offenses and defendants, see Miss. Unif. Cir. & County Ct. Prac. R. 9.03.

Joint indictments, see Miss. Unif. Cir. & County Ct. Prac. R. 7.08.

JUDICIAL DECISIONS

1. In general.

Supreme court would not interfere with trial court’s discretion in overruling motion for severance made by seven defendants charged with being interested in gambling table. Boyd v. State, 177 Miss. 34, 170 So. 671, 1936 Miss. LEXIS 247 (Miss. 1936).

RESEARCH REFERENCES

ALR.

Antagonistic defenses as ground for separate trials of codefendants in criminal case. 82 A.L.R.3d 245.

Rights of defendants in prosecution for criminal conspiracy to separate trials. 82 A.L.R.3d 366.

Antagonistic Defenses as Ground for Separate Trials of Codefendants in Criminal Cases - State Narcotics Offenses. 19 A.L.R.6th 115.

Antagonistic Defenses as Ground for Separate Trials of Codefendants in State Homicide Offenses - Applicable Standard and Extent of Antagonism Required. 24 A.L.R. 6th 591.

Am. Jur.

41 Am. Jur. 2d, Indictments and Informations §§ 196 et seq.

8 Am. Jur. Pl & Pr Forms (Rev), Criminal Procedure, Forms 321, 322 (severance).

5 Am. Jur. Trials, Pretrial Procedures and Motions, §§ 53 et seq.

CJS.

23 C.J.S., Criminal Law §§ 804, 806 et seq.

42 C.J.S., Indictments and Informations §§ 187 et seq.

Cross References —

Trial where it appears accused is only guilty of misdemeanor, see §99-15-55.

Expunction of misdemeanor charges, see §99-15-59.

Plea discussions, see Miss. Unif. Cir. & County Ct. Prac. R. 8.04.

JUDICIAL DECISIONS

1. In general.

In a suit for damages on a charge of malicious prosecution, the question as to whether the plaintiff had authorized or subsequently ratified another person’s compromise and settlement of the prosecution, while the plaintiff was in jail, was for the jury. Brown v. Kisner, 192 Miss. 746, 6 So. 2d 611, 1942 Miss. LEXIS 48 (Miss. 1942).

OPINIONS OF THE ATTORNEY GENERAL

“Remanded to the File” is not a statutory disposition of a case, and since this is not a statutory dismissal, no costs should be imposed against the defendant. Reed, Nov. 13, 1991, A.G. Op. #91-0776.

Court may dismiss prosecution of misdemeanor on motion of prosecuting attorney. Cooke, Dec. 17, 1992, A.G. Op. #92-0858.

Misdemeanor affidavit, including traffic ticket, can only be dismissed in accordance with Miss. Code Section 99-15-51 which provides that court may dismiss prosecution of misdemeanor on motion of prosecuting attorney. Miller, Mar. 3, 1993, A.G. Op. #93-0099.

A defendant may be required to pay court cost for a petty misdemeanor case that is dismissed at the request of the victim; however, a defendant charged with a felony may not be required to pay the court costs upon dismissal of the charge. Pacific, November 25, 1998, A.G. Op. #98-0718.

There is no authority for a justice court to charge a “drop fee” for a case to be dismissed; however, costs under the statute should be charged against the defendant. Barnett, May 19, 2000, A.G. Op. #2000-0272.

RESEARCH REFERENCES

ALR.

Construction and effect of statute authorizing dismissal of criminal action upon settlement of civil liability growing out of act charged. 42 A.L.R.3d 315.

JUDICIAL DECISIONS

1. In general.

It was not an abuse of discretion to refuse to accept defendant’s plea bargain in a case charging attempted witness intimidation because (1) the matter was entirely within the court’s discretion, (2) defendant did not detrimentally rely on the bargain, (3) the court reasonably explained the court’s decision based on an interest in protecting the integrity of the judicial system, and (4) the court did not engage in plea negotiation. Bryant v. State, 238 So.3d 1213, 2018 Miss. App. LEXIS 97 (Miss. Ct. App. 2018).

In a case in which defendant appealed his sentence of death by lethal injection for violating Miss. Code Ann. §97-3-19(2)(f), he argued unsuccessfully that the trial court abused its discretion and arbitrarily refused to accept the first guilty plea, thus preventing him from accepting the plea-bargain agreement for life imprisonment. Given that defendant had no absolute right to have his plea accepted and given that the trial judge did not accept the plea due to his expressed dissatisfaction with appointed counsel, defendant’s argument that his plea was arbitrarily rejected was without merit. Wilson v. State, 21 So.3d 572, 2009 Miss. LEXIS 450 (Miss. 2009), cert. denied, 560 U.S. 909, 130 S. Ct. 3282, 176 L. Ed. 2d 1191, 2010 U.S. LEXIS 3966 (U.S. 2010).

Trial court had no obligation to take into consideration offer made as part of a rejected plea bargain when sentencing defendant for manslaughter. Wade v. State, 802 So. 2d 1023, 2001 Miss. LEXIS 240 (Miss. 2001).

The trial court did not err in refusing to grant the state’s motion to dismiss a prosecution for burglary of a dwelling where the state sought dismissal of the case based upon its perception of what evidence regarding drug possession and use by the defendant would be allowed or disallowed; the trial court, having determined that the evidence would be allowed for a limited purpose, refused to dismiss the case. Potts v. State, 759 So. 2d 500, 2000 Miss. App. LEXIS 190 (Miss. Ct. App. 2000).

Notwithstanding that the district attorney erred in failing to gain the judge’s approval of a plea agreement that involved the nolle prosequi of two cases before her, once the defendants detrimentally relied on the agreement by pleading guilty and testifying about their drug business at their plea hearing before another judge, the first judge abused her discretion by refusing to grant the state’s motion to dismiss. State v. Adams County Circuit Court, 735 So. 2d 201, 1999 Miss. LEXIS 118 (Miss. 1999).

If the authority and approval of the circuit court are obtained, the prosecuting attorney may strike an enforceable agreement with a prospective witness that, if he or she will testify as a witness in any pending proceeding, he or she may be granted immunity from prosecution. Wright v. McAdory, 536 So. 2d 897, 1988 Miss. LEXIS 589 (Miss. 1988).

The consent of the court to a compromise of any criminal case is required by this section [Code 1942, § 2566]. Moore v. State, 242 So. 2d 414, 1970 Miss. LEXIS 1375 (Miss. 1970).

Where the order of the court was a nolle prosequi the defendant may be reindicted, or he may be tried upon an indictment charging him with another offense actually committed but for which he was not tried. State v. Thornhill, 251 Miss. 718, 171 So. 2d 308, 1965 Miss. LEXIS 896 (Miss. 1965).

In prosecution for larceny of a calf, the action of trial court in denying motion of district attorney for a nolle pros after all experts who had examined defendant found that he was suffering from mental or nervous disorder and was in need of treatment at a mental institution, was not error. Shipp v. State, 215 Miss. 541, 61 So. 2d 329, 1952 Miss. LEXIS 596 (Miss. 1952), but see Addkison v. State, 608 So. 2d 304, 1992 Miss. LEXIS 452 (Miss. 1992).

OPINIONS OF THE ATTORNEY GENERAL

If an affidavit and warrant is withdrawn by the District Attorney prior to docketing and prior to the matter proceeding past the basic signing of the document, this section would give the court the discretion to charge court costs against a defendant. Pacific, March 24, 1995, A.G. Op. #95-0146.

Based on this section, a prosecutor may dismiss a D.U.I. charge only with consent of the court. Lowrey, July 19, 1996, A.G. Op. #96-0478.

RESEARCH REFERENCES

ALR.

Enforceability of plea agreement, or plea entered pursuant thereto, with prosecuting attorney involving immunity from prosecution for other crimes. 43 A.L.R.3d 281.

Right of defendant in criminal proceeding to have immunity from prosecution granted to defense witness. 4 A.L.R.4th 617.

Prosecutor’s power to grant prosecution witness immunity from prosecution. 4 A.L.R.4th 1221.

What constitutes “manifest necessity” for state prosecutor’s dismissal of action, allowing subsequent trial despite jeopardy’s having attached. 14 A.L.R.4th 1014.

When is federal court justified, under Rule 48(a) of the Federal Rules of Criminal Procedure, in denying government leave to dismiss criminal charges. 48 A.L.R. Fed. 635.

When is dismissal of indictment appropriate remedy for misconduct of government official. 57 A.L.R. Fed. 824.

Am. Jur.

21 Am. Jur. 2d, Criminal Law §§ 715 et seq.

CJS.

22A C.J.S., Criminal Law §§ 543-545 et seq.

Editor’s Notes —

Pursuant to Miss. Const., Art. 6, § 171, all reference in the Mississippi Code to justice of the peace shall mean justice court judge.

Cross References —

Dismissal of petty misdemeanor charge upon satisfaction of injured party, see §99-15-51.

JUDICIAL DECISIONS

1. In general.

Where an affidavit charging accused with simple assault has been filed in justice of the peace court and then an indictment was returned charging the accused with assault and battery with intent to kill before he was tried for simple assault, regardless of the outcome of the trial for a misdemeanor, it would be no bar to a subsequent indictment for felony in the same manner. Chester v. State, 216 Miss. 748, 63 So. 2d 99, 1953 Miss. LEXIS 689 (Miss. 1953).

A justice of the peace of a different district than that in which an assault and battery is committed trying the case on the charge of assault and battery with intent to kill and murder has no jurisdiction to try and convict of the lesser offense of assault and battery. Ivy v. State, 141 Miss. 877, 106 So. 111, 1925 Miss. LEXIS 216 (Miss. 1925).

Under this section [Code 1942, § 2572] the accused has the right to be fully advised in the affidavit of the nature and cause of the crime charged. Brown v. State, 103 Miss. 664, 60 So. 727, 1912 Miss. LEXIS 214 (Miss. 1912).

If one charged with a felony be convicted by the justice of a constituent misdemeanor and he appeal and on trial in the circuit court the verdict be “guilty as charged in the affidavit,” the verdict will be limited to the charge in the affidavit of which the accused was convicted, the misdemeanor. Hastings v. State, 59 Miss. 541, 1882 Miss. LEXIS 154 (Miss. 1882).

OPINIONS OF THE ATTORNEY GENERAL

Under this section, at the conclusion of a preliminary hearing where the municipal judge finds no probable cause for a felony, but sufficient evidence to convict the accused of a misdemeanor, he should bind the offender over to the justice court judge within proper jurisdiction to hear the case. See also Section 21-23-7. Mitchell, May 11, 1995, A.G. Op. #95-0182.

Editor’s Notes —

Laws of 2019, ch. 466, § 1 provides as follows:

“SECTION 1. This act shall be known and may be cited as the ‘Criminal Justice Reform Act.’ ”

Amendment Notes —

The 2003 amendment rewrote the formerly undesignated paragraph as present (1) and (2); and in (2), inserted “Upon petition therefor” at the beginning and made a minor stylistic change.

The 2019 amendment added “or the person was found not guilty at trial” at the end of (2), and made a related change.

JUDICIAL DECISIONS

1. In general.

Petitioner Clay was not eligible for relief under subsection (1) because all three of his guilty pleas occurred on September 19, 1979. Clay v. State, 232 So.3d 196, 2017 Miss. App. LEXIS 287 (Miss. Ct. App.), cert. denied, — So.3d —, 2017 Miss. LEXIS 503 (Miss. 2017), cert. denied, 229 So.3d 714, 2017 Miss. LEXIS 513 (Miss. 2017).

Request to be sentenced pursuant to Miss. Code Ann. §99-15-26 can be offered during plea negotiations, but it is within the circuit or county judge’s discretion to accept such a request; in defendant’s case, the circuit court did not withhold acceptance of defendant’s guilty plea; instead, it accepted defendant’s guilty plea and adjudicated defendant accordingly, with defendant receiving a four year suspended sentence and five years of probation. Thus, the circuit court did not err in denying defendant’s petition for expungement. Turner v. State, 876 So. 2d 1056, 2004 Miss. App. LEXIS 605 (Miss. Ct. App. 2004).

Trial court lacked jurisdiction to expunge defendant’s criminal record because the trial court did not withhold acceptance of her guilty plea when defendant pled on September 23, 1996; the trial court sentenced defendant to regular probation; because defendant was not sentenced under Miss. Code Ann. §99-15-26, her argument was without merit. Smith v. State, 869 So. 2d 425, 2004 Miss. App. LEXIS 251 (Miss. Ct. App. 2004).

Records of criminal offenses are kept pursuant to §45-27-1. The legislature of Mississippi has specifically authorized expungment of criminal offender records in limited cases-youth court cases, §§43-21-159 and43-21-265; first offense misdemeanor convictions occurring prior to age 23, §99-19-71; drug possession convictions occurring prior to age 26, §41-29-150; purchase of alcoholic beverages by one under age 21, §67-3-70; and municipal court convictions, §21-23-7. Expungment of felony convictions which arose pursuant to guilty pleas are governed by §99-15-57 which provides that any person who pled guilty within 6 months prior to the effective date of §99-15-26 (March 31, 1983) may apply to the court for an order expunging his or her criminal records. Under §§99-15-57 and99-15-26 a circuit court has the power to expunge a felony conviction pursuant to a guilty plea under certain conditions. Accordingly, a petitioner who pled guilty to the felony of burglary might have been eligible for relief pursuant to §§ 99-15-57 and 99-15-26 if his guilty plea had occurred on or after October 1, 1982, that being the earliest date to satisfy the “within 6 months prior to” March 31, 1983, requirement of § 99-15-57. However, the petitioner pleaded guilty to burglary on October 9, 1979, 3 years prior to October 1, 1982, and admitted that he did not fall within the criterion in any of the statutes authorizing expungment, and thus the trial court did not err in denying his petition for expungment. Caldwell v. State, 564 So. 2d 1371, 1990 Miss. LEXIS 262 (Miss. 1990).

RESEARCH REFERENCES

ALR.

State court’s power to place defendant on probation without imposition of sentence. 56 A.L.R.3d 932.

Inherent power of court to suspend for indefinite period execution of sentence in whole or in part. 73 A.L.R.3d 474.

Construction, as to terms and conditions, of state statute or rule providing for voluntary dismissal without prejudice upon such terms and conditions as state court deems proper. 34 A.L.R.4th 778.

Admissibility of evidence of other offense where record has been expunged or erased. 82 A.L.R.4th 913.

Judicial Expunction of Criminal Record of Convicted Adult in Absence of Authorizing Statute. 68 A.L.R.6th 1.

Judicial Expunction of Criminal Record of Convicted Adult Under Statute – General Principles, and Expunction of Criminal Records Under Statutes Providing for Such Relief Where Criminal Proceeding Is Terminated in Favor of Defendant, upon Completion of Probation, upon Suspended Sentence, and Where Expungement Relief Predicated upon Type, and Number, of Offenses. 69 A.L.R.6th 1.

Criminal Defendant’s Right to Electronic Recordation of Interrogations and Confessions. 69 A.L.R.6th 579.

Am. Jur.

21A Am. Jur. 2d, Criminal Law §§ 843 et seq.

Cross References —

Dismissal of petty misdemeanor charge upon satisfaction of injured party, see §99-15-51.

Editor’s Notes —

Laws of 1987, ch. 329, § 15, provides as follows:

“SECTION 15. Chapter 445, Laws of 1983, which repeals the ’Pretrial Intervention Act’ (codified as §§99-15-101 through99-15-127) effective July 1, 1987, is hereby repealed.”

Cross References —

Imposition and collection of separate laboratory analysis fee in addition to any other assessments and costs imposed by statute on every individual who participates in pretrial intervention program established under §§99-5-101 et seq., see §45-1-29.

Authority for use of persons convicted of an offense for work on state highway projects, see §65-1-8.

JUDICIAL DECISIONS

1. Attorney discipline proceedings.

Mississippi Supreme Court has the power to render immediate sanctions for admitted felonious conduct under the non-adjudication of guilt statutory procedure of Miss. Code Ann. §99-15-26 and Miss. R. Disc. St. Bar 6, without a hearing by a complaint tribunal; however, the Supreme Court does not extend that rule to include admitted felonious conduct under the Mississippi Pretrial Intervention Act, Miss. Code Ann. §§99-15-101, et seq. The critical difference between the non-adjudication statute and the Act is that the former requires the entry of a sworn guilty plea before the circuit or county court while the latter does not, and since the attorney had not offered a guilty plea entered under oath before the circuit court, nor had the circuit court entered an order with respect the attorney’s felony level offense, disbarment proceedings were properly stayed until such time as the attorney was able to complete the Mississippi Pretrial Intervention Program, and until such time as a disposition of all charges against him had been entered. Miss. Bar v. Cofer, 904 So. 2d 97, 2004 Miss. LEXIS 1032 (Miss. 2004), dismissed, 2011 Miss. LEXIS 253 (Miss. May 12, 2011).

OPINIONS OF THE ATTORNEY GENERAL

An individual charged with an implied consent violation may be placed in a pretrial intervention program as specified by Sections 99-15-101 through 99-15-127. Helfrich, April 5, 1996, A.G. Op. #96-0193.

The Pretrial Intervention Act does not authorize a circuit court to use program funds to support a court-sponsored community service project. Hedgepeth, May 30, 2003, A.G. Op. 03-0165.

Neither the district attorney nor the circuit court has the authority to increase pretrial intervention program fees to pay the cost of operating a court-sponsored community service project. Hedgepeth, May 30, 2003, A.G. Op. 03-0165.

A district attorney may not use funds intended to pay the expenses of a pretrial intervention program to pay the costs associated with a court-sponsored community service project. Hedgepeth, May 30, 2003, A.G. Op. 03-0165.

RESEARCH REFERENCES

ALR.

Pretrial diversion: statute or court rule authorizing suspension or dismissal of criminal prosecution on defendant’s consent to noncriminal alternative. 4 A.L.R.4th 147.

Editor’s Notes —

Laws of 1987, ch. 329, § 15, provides as follows:

“SECTION 15. Chapter 445, Laws of 1983, which repeals the ‘Pretrial Intervention Act’ (codified as §§99-15-101 through99-15-127) effective July 1, 1987, is hereby repealed.”

Cross References —

Authority for use of persons convicted of an offense for work on state highway projects, see §65-1-8.

Editor’s Notes —

Laws of 1987, ch. 329, § 15, provides as follows:

“SECTION 15. Chapter 445, Laws of 1983, which repeals the ‘Pretrial Intervention Act’ (codified as §§99-15-101 through99-15-127) effective July 1, 1987, is hereby repealed.”

Cross References —

Authority for use of persons convicted of an offense for work on state highway projects, see §65-1-8.

RESEARCH REFERENCES

ALR.

Pretrial diversion: statute or court rule authorizing suspension or dismissal of criminal prosecution on defendant’s consent to noncriminal alternative. 4 A.L.R.4th 147.

Editor’s Notes —

Laws of 1987, ch. 329, § 15, provides as follows:

“SECTION 15. Chapter 445, Laws of 1983, which repeals the ‘Pretrial Intervention Act’ (codified as §§99-15-101 through99-15-127) effective July 1, 1987, is hereby repealed.”

Amendment Notes —

The 2014 amendment rewrote the section, which read: “A person shall not be considered for intervention if he or she has previously been accepted into an intervention program nor shall intervention be considered for those individuals charged with any crime of violence including, but not limited to murder, aggravated assault, rape, armed robbery, manslaughter or burglary of a dwelling house. A person shall not be eligible for acceptance into the intervention program provided by Sections 99-15-101 through 99-15-127 if such person has been charged (a) with an offense pertaining to the sale, barter, transfer, manufacture, distribution or dispensing of a controlled substance, or the possession with intent to sell, barter, transfer, manufacture, distribute or dispense a controlled substance, as provided in Section 41-29-139(a)(1), Mississippi Code of 1972, except for a charge under said provision when the controlled substance involved is one (1) ounce or less of marihuana; or (b) with an offense pertaining to the possession of one (1) kilogram or more of marihuana as provided in Section 41-29-139(c)(2)(D), Mississippi Code of 1972.”

Cross References —

Authority for use of persons convicted of an offense for work on state highway projects, see §65-1-8.

Conditions when intervention is appropriate, see §99-15-109.

JUDICIAL DECISIONS

1. In general.

2. Crime of violence.

1. In general.

Burglary of a dwelling constitutes a crime of violence for Miss. Code Ann. §99-18-83 purposes as Miss. Code Ann. §99-15-107 identifies burglary of a dwelling as a crime of violence, and there is a significant prospect of violence presented by every burglary of a dwelling because a dwelling is a place of human abode. Brown v. State, 102 So.3d 1130, 2011 Miss. App. LEXIS 361 (Miss. Ct. App. 2011).

2. Crime of violence.

In a matter of first impression, the appellate court held that defendant’s conviction of burglary of a dwelling under former Miss. Code Ann. §97-17-19 constituted a crime of violence for Miss. Code Ann. §99-18-83 purposes as Miss. Code Ann. §99-15-107 identified burglary of a dwelling as a crime of violence, and there was a significant prospect of violence presented by every burglary of a dwelling because a dwelling was a place of human abode. Brown v. State, 102 So.3d 1130, 2011 Miss. App. LEXIS 361 (Miss. Ct. App. 2011).

OPINIONS OF THE ATTORNEY GENERAL

The court must make an independent determination as to whether a particular offense is a “crime of violence.” Chamberlin, Mar. 2, 2006, A.G. Op. 05-0471.

A court would have discretion to approve a remand to the pretrial intervention program provided the individual remained eligible under the provisions of Sections 99-15-101 et seq., and the district attorney agreed to the remand. Chamberlin, Mar. 2, 2006, A.G. Op. 05-0471.

In determining whether a particular offense is a “crime of violence,” the court may may use the definition of “nonviolent crime” in Section 47-7-3(1)(g) as a tool in reaching its decision. Chamberlin, Mar. 2, 2006, A.G. Op. 05-0471.

Section 21-23-7 allows establishment of a work program, usually for people who are not incarcerated. Nowak, July 28, 2006, A.G. Op. 06-0268.

A defendant charged with statutory rape is ineligible for the pretrial intervention program even if the facts do not involve any use of force or violence. Brewer, July 28, 2006, A.G. Op. 06-0289.

Editor’s Notes —

Laws of 1987, ch. 329, § 15, provides as follows:

“SECTION 15. Chapter 445, Laws of 1983, which repeals the ‘Pretrial Intervention Act’ (codified as §§99-15-101 through99-15-127) effective July 1, 1987, is hereby repealed.”

Amendment Notes —

The 2006 amendment added (3).

Cross References —

Authority for use of persons convicted of an offense for work on state highway projects, see §65-1-8.

Ineligibility for intervention, see §99-15-107.

Information required from offender prior to admittance into program, see §99-15-111.

Recommendations of victim and law enforcement agency as to offender’s admittance into program, see §99-15-113.

Waiver and agreements required of offender who enters program, see §99-15-115.

OPINIONS OF THE ATTORNEY GENERAL

Provision of the the Pretrial Intervention Act that the offender has been indicted and is represented by an attorney would not apply to defendants charged with misdemeanor offenses in justice or municipal courts. Bates, Apr. 2, 2004, A.G. Op. 04-0144.

Editor’s Notes —

Laws of 1987, ch. 329, § 15, provides as follows:

“SECTION 15. Chapter 445, Laws of 1983, which repeals the ‘Pretrial Intervention Act’ (codified as §§99-15-101 through99-15-127) effective July 1, 1987, is hereby repealed.”

Cross References —

Authority for use of persons convicted of an offense for work on state highway projects, see §65-1-8.

Agreement between district attorney and offender, terms of intervention, see §99-15-117.

Restitution required prior to completion of program, see §99-15-121.

Ineligibility for intervention, see §99-15-107.

Conditions when intervention is appropriate, see §99-15-109.

Editor’s Notes —

Laws of 1987, ch. 329, § 15, provides as follows:

“SECTION 15. Chapter 445, Laws of 1983, which repeals the ‘Pretrial Intervention Act’ effective July 1, 1987, is hereby repealed.”

Cross References —

Authority for use of persons convicted of an offense for work on state highway projects, see §65-1-8.

Ineligibility for intervention, see §99-15-107.

Conditions when intervention is appropriate, see §99-15-109.

Editor’s Notes —

Laws of 1987, ch. 329, § 15, provides as follows:

“SECTION 15. Chapter 445, Laws of 1983, which repeals the ‘Pretrial Intervention Act’ (codified as §§99-15-101 through99-15-127) effective July 1, 1987, is hereby repealed.”

Cross References —

Authority for use of persons convicted of an offense for work on state highway projects, see §65-1-8.

Voidance of waiver executed pursuant to this section on date offender is removed from program for violation of program agreement, see §99-15-123.

Prohibition of reference to program as inducement to any statement, confession or waiver by offender, see §99-15-125.

RESEARCH REFERENCES

ALR.

Propriety of condition of probation which requires defendant convicted of crime of violence to make reparation to injured victim. 79 A.L.R.3d 976.

Validity of state statute imposing mandatory sentence or prohibiting granting of probation or sentence suspension of sentence for narcotics offenses. 81 A.L.R.3d 1192.

Am. Jur.

21A Am. Jur. 2d, Criminal Law §§ 866 et seq.

Editor’s Notes —

Laws of 1987, ch. 329, § 15, provides as follows:

“SECTION 15. Chapter 445, Laws of 1983, which repeals the ‘Pretrial Intervention Act’ (codified as §§99-15-101 through99-15-127) effective July 1, 1987, is hereby repealed.”

Cross References —

Authority for use of persons convicted of an offense for work on state highway projects, see §65-1-8.

Ineligibility for intervention, see §99-15-107.

Conditions when intervention is appropriate, see §99-15-109.

Restitution required prior to completion of program, see §99-15-121.

Violation of agreement, see §99-15-123.

OPINIONS OF THE ATTORNEY GENERAL

A pre-trial intervention agreement may provide for a work program for offenders and it would be properly included in the agreement if the statutory requirements are met. Parrish, Sept. 11, 2006, A.G. Op. 06-0402.

Editor’s Notes —

Laws of 1987, ch. 329, § 15, provides as follows:

“SECTION 15. Chapter 445, Laws of 1983, which repeals the ‘Pretrial Intervention Act’ (codified as §§99-15-101 through99-15-127) effective July 1, 1987, is hereby repealed.”

Cross References —

Mississippi Justice Information Center generally, see §§45-27-1 et seq.

Authority for use of persons convicted of an offense for work on state highway projects, see §65-1-8.

OPINIONS OF THE ATTORNEY GENERAL

The statute requires all district attorneys to furnish certain personal identification information to the Mississippi Justice Information Center (MJIC), which may only be released by MJIC in cases in which district attorneys are determining if an individual has ever participated in such a program in the past; as non-public records, information maintained pursuant to the statute is not subject to expunction as it is an integral part of determining an individual’s eligibility to the program. Spann, Jan. 24, 2000, A.G. Op. #99-0694.

Editor’s Notes —

Laws of 1987, ch. 329, § 15, provides as follows:

“SECTION 15. Chapter 445, Laws of 1983, which repeals the ‘Pretrial Intervention Act’ (codified as §§99-15-101 through99-15-127) effective July 1, 1987, is hereby repealed.”

Cross References —

Authority for use of persons convicted of an offense for work on state highway projects, see §65-1-8.

Agreement between district attorney and offender outlining terms of program, see §99-15-117.

OPINIONS OF THE ATTORNEY GENERAL

This section provides that any participant in pretrial intervention program “shall pay any expenses to the administrator of this program which are incurred as a result of his participation in the program”; such payments may be used to pay additional compensation to employees of District Attorney’s office that administers pretrial intervention program, including victim’s assistance coordinator or investigator. Kitchens, Feb. 25, 1993, A.G. Op. #93-0093.

A district attorney may charge an administrative fee to participants in a pretrial intervention program to offset background check expenses; however, there is no authority for the expenses to be charged against a defendant who has been rejected for the pretrial intervention program. Peterson, Sept. 13, 2002, A.G. Op. #02-0530.

If a pretrial intervention agreement calls for random drug testing of the offender, then the district attorney may charge the offender the costs associated with such drug testing. There is no prohibition against the district attorney contracting with a drug court to perform such drug testing. Lawrence, Mar. 5, 2004, A.G. Op. 04-0086.

Funds received for participation in the pretrial intervention program may be used by the district attorney’s office in a manner to be determined by the district attorney. Clark, Feb. 17, 2006, A.G. Op. 06-0057.

Pretrial diversion funds may be expended to pay for a portion of the cost of courtroom audio-video equipment which would be used by the district attorney’s office. Buckley, June 2, 2006, A.G. Op. 06-0197.

Under Miss. Code Ann. §99-15-121, pretrial intervention funds may be used to supplement the salary of a Grand Jury Coordinator having pretrial intervention program duties, as well as the salaries of assistant district attorneys and other employees of the District Attorney’s office who have pretrial intervention duties or administer the program. Lawrence, March 23, 2007, A.G. Op. #07-00151, 2007 Miss. AG LEXIS 118.

RESEARCH REFERENCES

ALR.

Propriety of condition of probation which requires defendant convicted of crime of violence to make reparation to injured victim. 79 A.L.R.3d 976.

Validity of state statute imposing mandatory sentence or prohibiting granting of probation or sentence suspension of sentence for narcotics offenses. 81 A.L.R.3d 1192.

Am. Jur.

21A Am. Jur. 2d, Criminal Law §§ 866 et seq.