                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 96-KA-01251-SCT
DAVID B. CORRY AND PAUL J. CORRY
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:                             10/18/96
TRIAL JUDGE:                                  HON. FORREST A. JOHNSON, JR.
COURT FROM WHICH APPEALED:                    AMITE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:                      MICHAEL B. CUPIT
ATTORNEY FOR APPELLEE:                        OFFICE OF THE ATTORNEY GENERAL
                                              BY: SCOTT STUART
DISTRICT ATTORNEY:                            GEORGE WARD
NATURE OF THE CASE:                           CRIMINAL - MISDEMEANOR
DISPOSITION:                                  AFFIRMED - 4/9/98
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                               4/30/98




     BEFORE PRATHER, C.J., SMITH AND WALLER, JJ.


     SMITH, JUSTICE, FOR THE COURT:


¶1. David B. Corry and Paul J. Corry appeal to this court their convictions from a trial de novo
without a jury in the Circuit Court of Amite County. On November 25, 1995 David Corry and Paul J.
Corry were charged with various hunting violations. Specifically, David Corry was charged with the
criminal offenses of hunting deer without orange, hunting deer over bait, and hunting deer without a
license. Paul Corry was charged with the criminal offenses of hunting deer without orange and
hunting without a license. On a first impression issue, we determine that § 49-7-33, our "baiting"
statute is constitutional. There is no merit to any of the issues raised by the Corry's.

¶2. The following sequence of events led up to the charges filed against the Corrys.

                                               FACTS

¶3. Sometime around October 7, 1995, Mississippi Wildlife and Fisheries conservation officer Donald
Foreman received information from a confidential source that someone was hunting deer over ground
baited with shelled corn on Micheal Cupit's(1) land. Subsequently, on November 25, 1995, Officer
Foreman, accompanied by Officer Ricky Long, went to the location where the hunting violations
were allegedly occurring. In order to reach the Cupit property, the officers crossed over land owned
by Merkle Brady and E. L. Caston. Officer Long testified that while standing on land adjacent to
Cupit's, he observed an individual on Cupit's land in a tree stand (approximately 15 to 20 feet off the
ground) with a gun but not wearing orange. Officer Long then entered Cupit's land and ascertained
that the individual in the tree stand was Paul Corry. Officer Foreman testified that he had already
crossed onto Cupit's land when Officer Long made him aware of the individual in the tree stand. The
defendants noted this difference in testimony. The remaining facts are not in controversy.

¶4. Paul Corry told the officers that his brother, David Corry, was also hunting somewhere on the
Cupit property. There was no corn found around Paul, therefore, he was only charged with hunting
deer without orange and hunting without a valid license. However, Officer Foreman then located
David Corry and charged him with hunting over bait, hunting deer without orange, and hunting
without a valid license(2). Officer Foreman indicated that there was a four foot circle full of shelled
corn located about thirty yards in front of the stand where David Corry was hunting.

¶5. On December 13, 1995, Paul and David Corry were found guilty of all the charges in the Justice
Court of Amite County, Mississippi. On October 9, 1996, an appeal was taken to the Circuit Court of
Amite County, Mississippi, where the case was tried de novo without a jury. During the course of the
trial, the defendant's attorney, Michael B. Cupit, entered a motion to require the game wardens to
disclose the identity of the confidential informant (which was taken under advisement and ruling
reserved) and a motion to suppress the evidence (which was overruled). The defendants did not
present any witnesses nor did they testify. On October 14, 1996, the Circuit Court judge entered an
Order finding the defendants guilty of all charges and assessed a $100 fine per charge along with
court costs. The trial court's order specifically found that Officer Long's personal observations gave
the officers probable cause to believe violations were occurring and thus the right to proceed onto
Cupit's property without a search warrant and issue the citations.

¶6. Also on October 14, 1996 the defendants, by and through their attorney Cupit, filed a Motion to
Rule on Requests Taken Under Advisement specifically requesting that the trial court require the
game wardens to disclose the confidential informant's identity. On that same date the Circuit Court
entered another Order denying the defendant's motion to disclose the confidential informant's identity,
specifically stating that the court found that Officer Long had probable cause to enter Cupit's land
based on his personal observations and without regard to any information provided by the
confidential informant. Subsequently, on October 18, 1996, the Circuit Court entered an Amended
Order which reinstated the previous findings of the October 14, 1996 Order and additionally found
that Miss. Code Ann. § 49-7-33 is constitutional.

¶7. The defendants appeal the Circuit Court's decision to this Court and raise the following issues:

     I. DID THE TRIAL COURT ERR IN FAILING TO FIND THAT THE GAME
     WARDENS' ACTIONS IN THIS CASE VIOLATED ARTICLE 3, SECTIONS 23 AND
     26 OF THE MISSISSIPPI CONSTITUTION (1890) AND THE FIFTH AND
     FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION (1787)
     ?

     II. DID THE TRIAL COURT ERR IN DENYING DEFENDANT'S MOTION TO
     SUPPRESS?
     III. DID THE TRIAL COURT ERR IN FAILING TO COMPEL THE GAME
     WARDENS TO IDENTIFY THEIR "CONFIDENTIAL INFORMANT"?

     IV. IS MISS. CODE ANN. § 49-7-33 (1972) UNCONSTITUTIONAL?

                                        LEGAL ANALYSIS

     I. DID THE TRIAL COURT ERR IN FAILING TO FIND THAT THE GAME
     WARDENS' ACTIONS IN THIS CASE VIOLATED ARTICLE 3, SECTIONS 23 AND
     26 OF THE MISSISSIPPI CONSTITUTION (1890) AND THE FIFTH AND
     FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION (1787)
     ?

¶8. The Corry's allege that the conservation officers conducted an illegal search in violation of the
Mississippi Constitution and the United States Constitution because they did not have a search
warrant and because they trespassed across three different tracts of land to make the arrests involved
in this case. They cite several Mississippi Supreme Court cases in support of their contention that
because the officers trespassed, their subsequent search of the land and of the defendants was illegal.
They further allege that because the search was illegal, any information gained from the defendants
should have been suppressed.

¶9. The Corry's maintain that the officers trespassed across two tracts of adjoining property owned
by Merkle Brady and E.L. Caston respectively. We hold that the defendants do not have standing to
assert a trespass on property other than their own. Trespass is not a strict liability crime as the
defendants would like for us to believe. This is evidenced by the provision in the statute that the
landowner can dismiss any prosecution under this section. See Miss. Code Ann. § 97-17-93 (Supp.
1997). "This Court has repeatedly held that a defendant cannot complain of an unlawful search of the
premises of another, or where he has no right of possession such as to make him the owner for the
time being." McBride v. State, 221 Miss. 508, 517, 73 So.2d 154, 157 (Miss. 1954) (citations
omitted). Likewise, a defendant cannot complain of a trespass on the premises of another. It is for the
landowner or their agent to assert the charge of trespass. Accord Valley Forge Christian College v.
Americans United for Separation of Church and State, 454 U.S. 464, 474, 102 S.Ct. 752, 759, 70
L.Ed.2d 700 (1982) (a party may not rest his legal claims upon the rights of third parties); Baltimore
Gas and Elec. Co. v. Lane, 656 A.2d 307, 313 (Md. 1995) (right to exclude others from property is
an incidence of legal possession); State v. Gaulke, 503 N.W.2d 330, 332 (Wis. Ct. App. 1993)
(defendants lack standing to assert alleged trespass on their father's property).

¶10. The defendants further maintain that the conservation officers trespassed upon Cupit's land in
order to ascertain whether a hunting violation was occurring. Granted, lessor Cupit and the lessees,
Paul and David Corry, have standing to assert a claim of trespass. However, in this case the trial
court specifically found that the officers had probable cause to enter the land based on Officer Long's
personal observations that led him to believe that hunting violations were then and there occurring.
Pursuant to Mississippi statute "[a]n officer . . . may arrest any person without warrant, for an
indictable offense committed, or a breach of the peace threatened or attempted in his presence . . .."
Miss. Code Ann. § 99-3-7 (1994).
     An offense is being committed in the presence of an officer when he acquires knowledge thereof
     through one of his senses. Where through the sense of sight, or smell, or hearing, an officer
     receives knowledge that an offense is being committed in his presence, he may arrest the
     offender without a warrant.

Moss v. State, 411 So. 2d 90, 95 (Miss. 1982) (citing Reed v. State, 199 So. 2d 803 (Miss. 1967)).
Accordingly, in the case at bar we hold that once the officers observed a violation of the law being
committed in their presence, they had the authority to enter Cupit's land and make a warrantless
arrest and a search incident to that arrest.

¶11. The trial court is the finder of fact and made the specific finding that the officers had probable
cause to enter Cupit's land based on Officer Long's personal observations. This Court will not
overturn the trial court's decision unless the decision was manifestly wrong. "When a trial judge sits
without a jury, this Court will not disturb his factual determinations where there is substantial
evidence in the record to support those findings." Yarbrough v. Camphor, 645 So. 2d 867, 869
(Miss.1994) (citing Omnibank of Mantee v. United S. Bank, 607 So. 2d 76, 82 (Miss.1992)). "'Put
another way, this Court ought and generally will affirm a trial court sitting without a jury on a
question of fact unless, based upon substantial evidence, the court must be manifestly wrong.'" Id.
(quoting Tricon Metal v. Topp, 516 So.2d 236, 238 (Miss.1987); Brown v. Williams, 504 So.2d
1188, 1192 (Miss.1987)).

¶12. Officer Long testified that he observed an individual in a tree stand (approximately 15 to 20 feet
above ground) with a gun but not wearing hunter orange. Officer Long further testified that based on
his fifteen years of experience, he believed that the individual was hunting deer and in Mississippi
individuals are required to wear hunter orange while hunting deer.(3) In contention, the defendants
point out that hunter orange is not required while hunting squirrel and Officer Long could not have
been certain whether the individual in the tree was hunting deer or hunting squirrel. Therefore, they
maintain that Officer Long did not have probable cause to enter the Cupit land without a search
warrant. However, Officer Long indicated that in his fifteen years of experience he had never known
anyone to hunt squirrels from a tree stand. In addition, Officer Long had information that individuals
were hunting over bait on the Cupit property. Accordingly, it is highly unlikely that an individual
would be hunting squirrel from a tree stand with corn poured out over the ground. Thus, it was
reasonable for Officer Long to believe that the individual was hunting deer without wearing hunter
orange. Consequently, Officer Long had probable cause to believe that a crime was occurring in his
presence and further had the right to enter onto Cupit's land without a search warrant. The trial
court's finding "that the personal observations of Officer Ricky Long in seeing the individual deer
hunting in a high tree stand, without the required hunter's orange, gave the officers probable cause to
believe that hunting violations were being [sic] then and there being committed on the property in
question, and the right to proceed onto the property and subsequently write the citations against the
defendants" was fully supported by the evidence contained in the record. The fact that the officers
recovered a high-powered rifle, and a 30-30 rifle, as well as a shotgun (twelve gauge and 30-30)
loaded with buckshot from the hunters lends further support for the officer's reasonable belief that
deer were being hunted rather than squirrel, and that other violations while hunting deer were
occurring. Accordingly, the trial court's finding that the officers had probable cause to enter the Cupit
property was not manifestly wrong and will not be overturned by this Court.
¶13. It should be noted that all of the cases the defendants cite in support of their contention of an
illegal search are distinguishable from the case at bar. In all of the cases relied upon by the
defendants, the game wardens or law enforcement officials' entry upon the defendant's land was not
based upon their attempts to thwart the commission of a crime in progress. Instead, the officials
entered the defendant's land without a search warrant to obtain evidence of illegal activity. In none of
the cases cited by defendants had the officials actually observed a crime in progress. Tucker v. State,
128 Miss. 211, 90 So. 845 (1922) (constable searched defendant's house and land without a warrant
and found whiskey and a still); State v. Patterson, 130 Miss. 680, 95 So. 96 (1923)(4) (officers took
a bottle of whiskey from the defendant's person after hiding to apprehend owner of found jug of
whiskey); Owens v. State, 133 Miss. 753, 98 So. 233 (1923) (officers obtained evidence of Owens'
guilt by searching his land without a search warrant); Falkner v. State, 134 Miss. 253, 98 So. 691
(1924) (officers found still after entering defendant's property without a search warrant); Helton v.
State, 136 Miss. 622, 101 So. 701 (1924) ( officers found two kegs of liquor after entering
defendant's property without a search warrant); Barnard v. State, 155 Miss. 390, 124 So. 479 (1929)
(officers found a still after entering property leased by the defendant without a search warrant); Davis
v. State, 144 Miss. 551, 110 So. 447 (1926) (officers entered land defendant was using with the
owner's permission without a search warrant); Feazell v. State, 217 Miss. 879, 65 So. 2d 267 (1953)
(officers entered defendant's property without a search warrant and found whiskey); Davidson v.
State, 240 So. 2d 463 (Miss. 1970) (officer entered defendant's property without a search warrant
and found evidence of a stolen tractor); Issacks v. State, 350 So. 2d 1340 (Miss. 1977) (marijuana
obtained from defendant's property based on search warrant later found to be void); Joyce v. State,
227 Miss. 854, 87 So. 2d 92 (1956) (officers entered defendant's land to obtain evidence of livestock
theft); Arnett v. State, 532 So. 2d 1003 (Miss. 1988) (storm shed was within curtilage of defendant's
house and thus within scope of search warrant).

¶14. The cases relied upon by the defendants are not controlling, since the case at bar is
distinguishable from each of these cases. In the case at bar the trial court held that the officers did not
trespass upon the land leased by the defendants because they observed a violation of law in progress
before entering the defendants' land. This Court finds that the trail court's holding was not manifestly
wrong, therefore, it will not be disturbed on appeal.

     II. DID THE TRIAL COURT ERR IN DENYING DEFENDANTS' MOTION TO
     SUPPRESS?

¶15. The defendants allege that the trial judge should have granted the motion to suppress "because
what the game wardens saw was the result of an illegal search, [and] they should not have been
allowed to testify as to what they saw after they violated defendant's constitutional and statutory
rights." However, in discussing the previous issue it was determined that the defendants'
constitutional rights were not violated and the game wardens' search was not illegal but was instead
based upon probable cause. Therefore, the trial court was correct in denying the defendants' motion
to suppress.

     III. DID THE TRIAL COURT ERR IN FAILING TO COMPEL THE GAME
     WARDENS TO IDENTIFY THEIR "CONFIDENTIAL INFORMANT"?

¶16. The defendants allege that the trial court should have required the conservation officers to
disclose the identity of their confidential informant since he "was an eyewitness to events giving rise
to the charges against the defendants in this case." Additionally, the defendant's attorney maintained
at trial that "[t]here's no such thing as a confidential informant in a misdemeanor case." Mississippi
Uniform Circuit and County Court Rule 9.04(B)(2) addresses the requirement of disclosing
informants.

     Informants. Disclosure of an informant's identity shall not be required unless the confidential
     informant is to be produced at a hearing or trial or a failure to disclose his/her identity will
     infringe the constitutional rights of the accused or unless the informant was or depicts
     himself/herself as an eyewitness to the event or events constituting the charge against the
     defendant.

URCCC 9.04(B)(2). Additionally, Rule 6.01 indicates that Rule 9.04 is applicable to criminal
proceedings and specifically defines a misdemeanor as a criminal offense punishable by a maximum
possible sentence of confinement for one year or less, fine, or both. URCCC 6.01. Accordingly, there
is no merit to Cupit's assertion that the rule regarding confidential informants does not apply to
misdemeanors.

¶17. "The lead case in Mississippi on [informants] is Read v. State, 430 So. 2d 832, (Miss. 1983)."
Arnett v. State, 532 So. 2d 1003, 1008 (Miss. 1988). In Read, this Court stated:

     The proper rule regarding the circumstances under which the identity of the informer should be
     disclosed was stated in Young v. State, 245 So. 2d 26 (Miss. 1971):

     Ordinarily, disclosure of the identity of an informer, who is not a material witness to the guilt or
     innocence of the accused, is within the sound discretion of the trial court. Strode v. State, 231
     So. 2d 779 (Miss. 1970). On the other hand, where the informer is an actual participant in the
     alleged crime, the accused is entitled to know who he is. Roviaro v. United States, 353 U.S.
     53, 77 S.Ct. 623, 1 L.Ed. 2d 639 (1957) . . . . (245 So. 2d at 27). [Mills v. State, 304 So. 2d
     651, 654 (Miss. 1974)].

Read, 430 So. 2d at 835-36. In Arnett, this Court found that the trial court did not commit error by
withholding the informant's identity since "[t]here [was] no evidence in the record that the informant
was a participant or an eyewitness to the crime, and consequently disclosure of the witness was
within the sound discretion of the trial judge." Arnett, 532 So. 2d at 1008 (citingSwindle v. State,
502 So. 2d 652, 658 (1987); Daniels v. State, 422 So. 2d 289 (Miss. 1982); Young v. State, 245 So.
2d 26 (Miss. 1971)). Likewise, in the case at bar, there is no evidence in the record that the informant
participated in the crime or was an eyewitness to the crime. The trial judge specifically found "that
officer Ricky Long had probable cause based upon his personal observations on the date and
location in question, without regard to any information provided officers by any confidential
informant." Therefore, the trial judge's decision to deny the defendant's motion to require disclosure
of the confidential informant's identity was not manifestly wrong.

¶18. Furthermore, the defendant's attorney obviously had information that the confidential informant
was Luther Whittington and had subpoenaed Whittington to testify. However, the defense failed to
call Mr. Whittington as a witness.(5) This Court previously noted that "confrontation and cross-
examination are the very rights which require disclosure of material witnesses in the first place."
Fleming v. State, 604 So. 2d 280, 298 (Miss. 1992) (citing Ward v. State, 293 So. 2d 419, 421
(Miss. 1974)); See also Miss. R. App. P. 10(b)(1). Defense counsel had an opportunity to confront
and cross-exam whom he believed to be the confidential informant but failed to take advantage of this
opportunity, or in the alternative failed to designate information relevant to this issue as part of the
record necessary for appeal. Consequently, defense counsel has waived his right to claim this as
error.

¶19. We hold that the trial court did not abuse its discretion in denying the defendants' motion to
compel disclosure of the confidential informant's identity.

     V. IS MISS. CODE ANN. § 49-7-33 (1972) UNCONSTITUTIONAL?

¶20. The defendants argue the first impression issue that Miss. Code Ann. § 49-7-33 "is
unconstitutional because . . . it is vague and enforcement is left to the discretion of the individual
game warden." Specifically, the defendants contend that the statute does not provide adequate notice
of the definition of "bait." They point out that since it is not a violation of the statute to plant crops
such as ryegrass, chufa, winter wheat, and corn and hunt over it, it is inconsistent to say that it is a
violation of statute to pour shelled corn over the ground and hunt over it.

¶21. The State contends that defendants have not proven that the statute is unconstitutionally vague
or overbroad beyond a reasonable doubt. "Statutes under constitutional attack have a presumption of
validity attached to them, overcome only with a showing of unconstitutionality beyond a reasonable
doubt." Nicholson v. State, 672 So. 2d 744, 750 (Miss. 1996) (citing Vance v. Lincoln County
Dep't of Pub. Welfare, 582 So. 2d 414, 419 (Miss. 1991)).

     This Court has made clear that a strong case must be presented in arguing against the
     constitutionality of legislative enactments:

     With regard to the duties cast upon the assailant of a legislative enactment, the rule is fixed that
     a party who alleges the unconstitutionality of a statute has the burden of substantiating his claim
     and must overcome the strong presumption in favor of its validity. It has been said that the
     party who wishes to pronounce a law unconstitutional takes on himself the burden of proving
     this conclusion beyond all doubt, and that a party who asserts that the legislature has usurped its
     power or has violated the Constitution must affirmatively and clearly establish his position.

Touart v. Johnston, 656 So. 2d 318, 321 (Miss. 1995) (quoting Van Slyke v. Bd. of Trustees, 613
So. 2d 872, 880 (Miss. 1993) (citing 11 Am. Jur., Constitutional Laws § 132 (1937))). Furthermore,
this Court addressed the contours of the vagueness doctrine in Meeks v. Tallahatchie County, 513
So. 2d 563 (Miss. 1987).

     Meeks recognized that languages are inherently ambiguous and what is important is whether the
     ordinary person of common intelligence understands what is allowed and not allowed. Meeks,
     513 So. 2d at 567. Meeks relied on the United States Supreme Court:

     [A] statute which either forbids or requires the doing of an act in terms so vague that men of
     common intelligence must necessarily guess at its meaning and differ as to its application
     violates the first essential of due process.
City of Jackson v. Lakeland Lounge of Jackson, Inc., 688 So. 2d 742, 747 (Miss. 1996) (quoting
Meeks, 513 So. 2d at 566). It is hard to imagine that a person of common intelligence would not
know that a four foot circle of shelled corn poured out onto the ground would constitute "bait." The
defendant's argument that the statute is vague because it allows hunting over "planted" ryegrass,
winter wheat, chufa, and corn does not lend credence to his position. Rather, it shows that the
definition of "bait" is differentiated so that the ordinary person would be put on notice. If the
defendants had planted corn and were hunting over it, then they might be able to claim insufficient
notice. The planting of agricultural products is a natural process that involves clearing land,
cultivating the soil, applying various fertilizer, lime, etc., and tending to the crops during growth. A
common sense reading of the statute would dictate that this natural planting procedure would not be
considered "bait." Therefore, for such procedure to also be considered a violation of the statute, the
legislature would need to include language in the statue specifying that the natural procedure of
planting crops is also considered "bait."

¶22. The planting of crops is a natural agricultural process that cannot be accomplished in wooded
areas inhabited by deer and other animals. Rather, it must be done in an area cleared of trees and
brush where deer and other animals must then come to the natural growth and rummage through the
stalks, leaves, grass and earth, etc., in order to find the natural growing food product. However, a
bag of "shelled corn," as in the case at bar, can be taken directly to densely wooded areas, (where
natural agricultural crops could not possibly be grown), poured out in a large pile in the animals'
natural habitat, and thereby effectively entice the deer to a particular spot where the animal might not
have elected to go, but for the "bait." During his testimony, Officer Long pointed out that crops and
grasses that are "planted" involves a normal agricultural process which is there seven days a week,
twenty-four hours a day. However, it has been proven that you can carry corn and certain feeds to an
area on a particular timed basis and lure deer into a certain area at a certain time period which makes
it unfair to the game to hunt over it. There's clearly a big distinction between "planting" naturally
growing crops where the deer come to, rummage through and feed on their schedule and "baiting" by
piling up a "four foot circle of corn," or other feed, where the deer come to feed on your schedule.
Such latter procedure can be likened to an alarm clock ringing, signaling the time to do a particular
chosen endeavor. The Corrys might as well have been ringing the dinner bell.

¶23. The statute prohibits an activity that common sensibly constitutes "baiting" and therefore, is not
so vague as to be unconstitutional. Simply put, and as the trial court so ruled, the Corrys have not
proven that the statute is unconstitutionally vague or overbroad beyond a reasonable doubt and there
is no merit to defendants' argument that they were not sufficiently aware that pouring a four foot
circle of shelled corn over the ground would constitute "bait." We hold that the Corrys have failed to
overcome the statute's presumption of validity by showing its unconstitutionality beyond a reasonable
doubt. Therefore, the trial court's decision that § 49-7-33 is constitutional is affirmed.

                                           CONCLUSION

¶24. The defendant's contention that the conservation officers performed an illegal search is without
merit. The trial judge held that Officer Long had probable cause to enter Cupit's land based on his
personal observations of a crime being committed in his presence. The Corrys advance a rather novel
argument, that they could have been squirrel hunting from tree stands, thus hunter orange was not
required to be worn. Therefore, they argue that the conservation officers were without probable
cause to believe that they were hunting deer over bait. The justice court and circuit court of Amite
County was not convinced. This Court is likewise unimpressed. Though definitely original, this
argument stretches common sense as well as the imagination. As Officer Long testified, in fifteen
years of experience, he had never heard of anyone squirrel hunting from a tree stand. Equally
unconvincing is the four foot wide pile of shelled corn which apparently the Corrys would have this
Court believe was strategically placed thirty yards in front of 15-20 foot high tree stands in order to
entice squirrels to the gun, rather than deer. Finally, when we consider the Corry's choice of caliber of
weapon used to hunt these squirrels, their argument is even less compelling. Officer Foreman testified
concerning the caliber of weapons used that, "One was a twelve gauge shotgun. . . .with buckshot;"
another was, "I think a lever action 30-30;" and the third weapon, "It was a high-powered rifle used
for taking deer." Were these weapons used in the harvesting of squirrels? We don't think so. To
conclude otherwise one must presume that those big Amite County squirrels must be extremely
difficult to harvest, so much so that buckshot and high power rifles were required. Common sense
dictates only one conclusion. The Corrys were deer hunting from tree stands, without wearing
hunting orange, and David Corry was deer hunting over "bait".

¶25. The defendants argued that Miss. Code Ann. § 49-7-33 is unconstitutionally vague because it
does not provide adequate notice of the definition of "bait." In the case at bar, one of the defendants
was found hunting over a four foot circle of shelled corn poured out on the ground. It is hard to
imagine that a person of common intelligence would not know that a four foot circle of shelled corn
poured out onto the ground in the deer's natural forested habitat would constitute "bait." The
defendants' argument that it is not illegal to hunt over planted grasses and crops does not lend
credence to their argument that the statute is vague. Rather this argument shows that the definition of
"bait" is differentiated so that the ordinary person using common sense and knowing the widely
accepted meaning of the word "bait" would be put on notice. Therefore, this Court upholds the trial
court's finding that § 49-7-33 is constitutional.

¶26. Consequently, we hold that the trial court's ruling that the officers' actions did not violate Article
3, Sections 23 and 26 of the Mississippi Constitution and the Fourth and Fifth amendments to the
United States Constitution was not manifestly wrong and will not be overturned. Furthermore, since
it was determined that the conservation officers' actions did not violate the defendants' constitutional
rights, we further find that the trial court was correct in denying the defendants' motion to suppress.
The defendants allege that the trial court should have required the conservation officers to disclose
the identity of their confidential informant. However, there was no evidence in the record to indicate
that the confidential informant in the case at bar participated in the crime or was an eyewitness to the
crime. Therefore, this Court finds that the trial judge was correct in denying the defendants' motion to
require disclosure of the confidential informant's identity. Moreover, the Corry's attorney either failed
to take advantage of the opportunity to confront and cross-exam whom they believed to be the
confidential informant, or failed to designate information relevant to this issue as part of the record
necessary for appeal. Therefore, we hold that he waived his right to claim this as error.

¶27. Accordingly, the trial court's decision is affirmed.

¶28. AS TO DAVID B. CORRY: CONVICTION OF HUNTING DEER WITHOUT
ORANGE, HUNTING OVER BAIT AND HUNTING WITHOUT A VALID LICENSE AND
PAYMENT OF $100.00 FINE ON EACH OFFENSE AFFIRMED. AS TO PAUL J. CORRY:
HUNTING DEER WITHOUT ORANGE AND HUNTING WITHOUT A VALID LICENSE
AND PAYMENT OF $100.00 FINE ON EACH OFFENSE AFFIRMED.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, ROBERTS, MILLS AND
WALLER, JJ., CONCUR. McRAE, J., DISSENTS WITH SEPARATE WRITTEN OPINION.


     McRAE, JUSTICE, DISSENTING:


¶29. ` I respectfully dissent.

¶30. Initially, the majority errs in concluding that the trial court should not have compelled the game
wardens to identify their confidential informant. Although the majority states that there is no evidence
that the informant was an eyewitness to the crime, the majority clearly notes in its statement of the
facts that the informant provided the officers information regarding alleged hunting violations. It can
hardly be said that the confidential informant was not a witness to the guilt or innocence of the
accused when Officers Foreman and Long went onto the property of Michael Cupit to investigate
alleged hunting violations based on information received from the confidential source. But for the
information from this source, the officers would never have been privy to identifying Paul or David
Corry. Accordingly, both of the game wardens should have been ordered to disclose the confidential
informant, regardless of any information that the defendant's attorney may have possessed about the
informant's identity.

¶31. Secondly, the statement by Paul Corry that his brother was also hunting on the Cupit property
did not give rise to probable cause. The officers, having found no corn around Paul, had no reason to
suspect that Paul Corry was hunting deer as opposed to hunting squirrel. Further, the officers had no
reason to suspect that David Corry was guilty of hunting violations. David Corry was not in view of
the officers, so they could not have suspected that any illegal act was taking place. Since the officers
could not have observed a violation of the law in their presence, they had no authority to enter the
land, make warrantless arrests, and conduct searches. The defendants' motion to suppress should
have been granted.

¶32. It is for these reasons that I dissent.




1. Michael Cupit is the owner of the land the defendants leased for hunting and is also the defendant's
attorney in this action.

2. Officer Foreman also located another individual who was also charged with hunting violations,
however, that individual was not included in this appeal.

3. When the defendant was charged in November 1995, the requirement of wearing hunter orange
while deer hunting was accomplished through Public Notice 2384. This requirement has since been
codified in Miss. Code Ann. § 49-7-31.
4. In this case the circuit court noted that "it would not be unreasonable to search a man actually
engaged in the violation of law" but that they must "sustain the motion to quash [the indictment
based] on the authority of Tucker v. State." Patterson, 130 Miss. at 682, 95 So. at 97. This Court
agreed with the circuit court and followed Tucker in quashing Patterson's indictment. Although this
Court has not officially pronounced this case as overruled, Mississippi statute and case law now gives
law enforcement the authority to search a man actually engaged in the violation of law.

5. In the appellant's brief, Attorney Cupit affirmed to this Court that, although it is not part of the
record, Luther Whittington was called as a witness, and that Whittington denied being the
confidential informant under oath on the witness stand. This affirmation is of no consequence to this
Court since we are limited to a review of the documents contained in the record. "This Court has
repeatedly held that '[t]his Court will not consider matters which do not appear in the record and
must confine itself to what actually does appear in the record.'" Medina v. State, 688 So. 2d 727,
732 (Miss. 1996) (quoting Robinson v. State , 662 So. 2d 1100, 1104 (Miss. 1995)). "Moreover, we
cannot decide an issue based on assertions in the briefs alone; rather, issues must be proven by the
record." Medina, 688 So. 2d at 732 (citations omitted). Additionally, "the appellant bears the burden
of presenting a record which is sufficient to undergird his assignments of error." Williams v. State,
522 So. 2d 201, 209 (Miss. 1988).
