Arrington v. State

Full title: Ollie ARRINGTON v. STATE of Mississippi

Court: Supreme Court of Mississippi

Date published: Mar 31, 1982

411 So. 2d 779 (Miss. 1982)

Opinion

No. 53325.

March 31, 1982.

Appeal from Circuit Court, Jones County, James D. Hester, J.

Carl D. Ford, Charles G. Blackwell, Laurel, for appellant.

Bill Allain, Atty. Gen. by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before SUGG, P.J., and ROY NOBLE LEE and HAWKINS, JJ.

HAWKINS, Justice, for the Court:

Ollie Arrington appeals from a conviction and sentence of 50 years by the Circuit Court of Jones County for the rape of a fourteen year old child. We affirm.

The only question we address on appeal is whether or not the circuit judge erred in admitting into evidence a transcript of Arrington's testimony at a previous trial.

Arrington's first trial resulted in a mistrial. At the subsequent trial, Arrington again testified in his own behalf, and the State offered in rebuttal a transcript of his testimony at the first trial. Arrington now argues that a proper predicate or foundation was necessary prior to the introduction of this transcript.

Arrington was a party, not simply a witness, and therefore the transcript of his testimony at the previous trial was competent, either as part of the State's case in chief or rebuttal, as an admission of the defendant. White v. Weitz, 169 Miss. 102, 152 So. 484 (1934); Roney v. State, 167 Miss. 827, 150 So. 774 (1933); Steele v. State, 76 Miss. 387, 24 So. 910 (1898); See generally, 23 C.J.S. Criminal Law § 892(b) (1961).

The admission of this transcript in rebuttal, after Arrington had taken the stand in his own defense in the second trial, was within the discretion of the trial judge. Even if cumulative or repetitive, it was harmless error. If contradictions or discrepancies existed between his testimony in the first and second trials, he should have requested surrebuttal to explain them.

Upon the argument that the sentence imposed was excessive because greater than Arrington's reasonable life expectancy, we note the trial judge found Arrington to be 17 years of age, and took into consideration his height and health, following which he sentenced Arrington to serve a term of fifty (50) years. The 1980 Statistical Abstract of the United States, published by the United States government, shows the life expectancy of the average black male in 1978, 17 years of age, to be 50.2 years.

The sentence was therefore not beyond the reasonable life expectancy of the defendant.

AFFIRMED.

PATTERSON, C.J., SMITH and SUGG, P.JJ., and WALKER, BROOM, ROY NOBLE LEE, BOWLING and DAN M. LEE, JJ., concur.