Opinion
No. 52995.
December 16, 1981.
Appeal from the Circuit Court, Simpson County, L.D. Pittman, J.
Tullos, Tullos Tullos, Eugene C. Tullos, Raleigh, for appellant.
Bill Allain, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before WALKER, BROOM and HAWKINS, JJ.
Billy Keith Warren appeals from a conviction of the criminal offense of possession with intent to deliver marijuana in an amount greater than one ounce but less than one kilogram in the circuit court of Simpson County.
The issue we address on this appeal is whether or not Warren was entitled to a mistrial upon motion being made following the state's asking a co-indictee called as a defense witness if he had been convicted of the same offense, and which motion was overruled. We hold the motion should have been sustained, and reverse and remand.
Warren and Royce Timothy Welch were jointly indicted for this offense by the Simpson County grand jury February 21, 1980. A severance was granted in the trial of these defendants, with Welch being first tried and convicted. Warren's case was tried October 9, 1980.
During the course of the trial Warren called as a defense witness the co-indictee Welch. On cross-examination by the state, the following transpired:
Q All right. Now, you were convicted a couple of weeks ago for your part in this, weren't you?
A Yes, sir.
Q All right.
BY MR. TULLOS:
May it please the Court, I've got a motion I'd like to make.
BY THE COURT:
Let the Jury retire, please. (R. 81)
Out of the presence of the jury, defense counsel thereupon made a motion for a mistrial, which was overruled by the court. The district attorney was not admonished, and the jury was not instructed to disregard the question and answer.
Upon resuming questioning the state asked Welch if he had ever been convicted of any crimes involving marijuana before, to which he replied: "I had one misdemeanor and I was convicted for possession of marijuana." The record does not reveal if any such conviction was the trial two weeks previously.
The above constituted prejudicial error, and the defendant was entitled to a mistrial. See Henderson v. State, 403 So.2d 139 (Miss. 1981); Buckley v. State, 223 So.2d 524 (Miss. 1969).
REVERSED AND REMANDED.
PATTERSON, C.J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.