Larry JONES
v.
STATE of Mississippi.
Supreme Court of Mississippi.
Charles E. Morris, Jr., Kelly McKoin, Biloxi, for appellant.
A.F. Summer, Atty. Gen. by Ben H. Walley, Asst. Atty. Gen., Jackson, for appellee.
Before INZER, SUGG and LEE, JJ.
SUGG, Justice, for the Court:
Larry Jones was conviсted of capital murder and sentenced to death by the Circuit Court of the Second Judicial District of Harrison County. We reverse fоr retrial in accordance with our opinion in Jackson v. State,
Defendant contends that the lower court erred by admitting into evidence *736 state's exhibit No. 7 which was а large map of downtown Biloxi, including the area around the store where the murder occurred. The basis of this contention is that rеd and black arrows were drawn on the map which tend to indicate the path of the defendant from an automobile parkеd several blocks away from the scene of the crime. The testimony established that the defendant, along with J.D. Reddix and Willie Reddix, drovе into a parking area adjacent to Jackson Street and the defendant and Willie Reddix exited the car and walked in a westerly direction. Defendant and Willie Reddix returned to the car in about fifteen minutes. This is a circumstantial evidence case and there is no direct testimony showing the route that defendant followed from the car to the scene of the crime and his return route tо the car. We held in Hall v. Boykin,
The general rule concerning markings on exhibits appears in 29 Am.Jur.2d Evidence § 784 at 854 (1967):
Properly verified оr authenticated maps, plats, diagrams, casts, drawings, photographs, and X-ray pictures are not rendered inadmissible in evidenсe because of marks, memoranda, legends, or other extraneous matter thereon, where the individual who made the marks оr writings, or another witness familiar with the facts, explains them or testifies as to their correctness. When objectionable marks or writings аre excluded, expunged, or erased, the instrument becomes properly admissible. But it is clear that where the person who mаde the marks or notations did so, not from his own personal knowledge, but from what he heard from others, or if the one who made the mаrks or notations is not produced as a witness, the map, diagram, or drawing containing such marks or notations is inadmissible in evidence.
It wаs error to admit a map with the red and black arrows. The map may be admitted on retrial if the arrows are eliminated.
Defendаnt also contends that it was error to admit certain exhibits in evidence which had been used in the trial of Willie Reddix who was convictеd and sentenced to death one week earlier. Under the facts in this case the error complained of did not constitute reversible error, but on retrial the markings indicating that the exhibits had been used in another trial should be deleted before the exhibits are offered as evidence.
Defendant also argues that the lower court erred by refusing to admit in evidence a statement he gave police. The crime with which defendant was charged was committed on December 2, 1974. On December 9, 1974 defendant madе a statement to the police concerning the events surrounding the crime. His statement was wholly exculpatory and was not usеd in whole or in part by the state in its case. His statement was a self-serving declaration and was inadmissible under Cone v. State,
The pertinent rule is stated in 2 Wharton's Criminal Evidence (12th Ed., 1955) Sec. 361: `In the proof of confessiоns, the whole of what the accused said on the subject at the time of making the confession should be taken together. The prosecution is entitled to show the whole statement, or if any part is omitted, the accused is entitled to supply it. It is also *737 well settled that if a сonfession is made under such circumstances as to authorize its admission in evidence, the accused is entitled to have the entire conversation including any exculpatory or self-serving declarations connected therewith, also admitted. However, it is for the jury to say what weight shall be given to the several parts of the statement, as they may believe that part which charges the prisoner and reject that which tends to exculpate him.' (237 Miss. at 776 ,115 So.2d at 146-7 ). (Emphasis supplied).
Where the State introduces a part only, the accused is entitlеd to prove the remainder or any part thereof which is explanatory of, or connected with, the part offered by thе State. 22 C.J.S. Criminal Law § 820; Bishop v. State, 1910,96 Miss. 846 ,52 So. 21 ; Coon v. State, 1849, 13 Smedes & M. 246, 250; McCann v. State, 1850, 13 Smedes & M. 471, 498-499; Jones v. State, 1954,222 Miss. 387 , 395,76 So.2d 201 . Hence it was error for the trial court to overrule appellant's motion for production of the tape rеcording, and for that error the conviction must be reversed. Of course a recorded statement may contain considerаble material which is not relevant or material on the issue of the confession or, as here, of insanity. The trial judge has ample power in his sound discretion to limit the introduction into evidence of those portions of the recording which are relevant and material. (237 Miss. 776 -777,115 So.2d at 147 ). (Emphasis supplied).
The defendant is not entitled to protection under Sanders because the state made no effort to introduce the statement in question and did not offer any evidence thаt defendant had made any statement or admission. It is the general rule, almost unanimously followed, that where the state introduces еvidence of statements made by the defendant immediately after a crime, defendant is entitled to bring out the whole of his statemеnt. In the absence of the state using the evidence in the record, the defendant cannot introduce any part on his behalf. Collins v. State,
Dеfendant complains that a "hanging jury" was empaneled to try his case. There is insufficient evidence in the record to show that the jury was not properly selected in accordance with the principles enunciated by the United States Supreme Court. On retrial, if defendant is tried on a capital charge, the trial court will follow Witherspoon v. Illinois,
REVERSED AND REMANDED FOR A NEW TRIAL.
GILLESPIE, C.J., PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, WALKER, BROOM and LEE, JJ., concur.