Ferguson v. State 452 So. 2d 849

WALKER, Presiding Justice,

for the Court:

This is an appeal from the Circuit Court of Oktibbeha County, Mississippi wherein appellant was convicted of the burglary of “Action Apparel”, a shirt-making establishment, and sentenced to a term of six years in the custody of the Mississippi Department of Corrections. Aggrieved with the lower court’s holding, the appellant has perfected his appeal to this Court.

We reverse.

There is no probative evidence to convict the appellant of the crime with which he was charged. The State’s case depended upon written statements 1 given by two witnesses, Melissa Kaye Wilkerson and Linda Palmertree, in which they stated that appellant committed the burglary as well as reciting other information incriminating *850him. However, these witnesses changed their story at trial and testified that appellant did not tell them that he had committed the burglary and furnished no testimony which would connect him with the crime. After the witnesses testified, denying the truthfulness of their prior statements, the statements were admitted into evidence for the purpose of impeaching the witnesses.

It is elementary law that statements admitted into evidence for the purpose of impeaching the testimony of a witness may not form the basis for the conviction of the accused. The statement in such case can only serve to show that the witness had earlier made statements inconsistent with his testimony at trial and are not admitted as substantive evidence of the facts therein stated. Sims v. State, 313 So.2d 388 (Miss.1975); Magee v. Magee, 320 So.2d 779 (Miss.1975).

We therefore hold the trial court erred in not sustaining appellant’s motion for a peremptory instruction.

The judgment of the circuit court sentencing appellant to six years in the custody of the Mississippi Department of Corrections is reversed, sentence vacated and appellant discharged.

REVERSED AND APPELLANT DISCHARGED.

PATTERSON, C.J., ROY NOBLE LEE, P.J., and DAN M. LEE and SULLIVAN, JJ., concur.

PRATHER, BOWLING and HAWKINS, JJ., dissent.

ROBERTSON, J., not participating.

PRATHER, Justice,

dissenting:

I respectfully dissent from the majority opinion. I agree with the rule that the majority cites that “statements admitted into evidence for the purpose of impeaching testimony of a witness may not form the basis for the conviction of the accused.” However, I disagree that there is not other direct evidence from other witnesses to support the conviction. Therefore, I would affirm the conviction.

BOWLING and HAWKINS, JJ., join in this dissent.