text:
    In re William M. HOPPOCK.
    No. 2002-CS-01684-SCT.
    Supreme Court of Mississippi.
    July 24, 2003.

      William M. Hoppock, pro se.
    Before SMITH, P.J., WALLER and CARLSON, JJ.
   WALLER, Justice, for the Court.

¶ 1. We have experienced repeated difficulties in getting trial court transcripts from court reporter William M. Hoppock in numerous cases. After Hoppock failed to correct the problems, a panel of this Court ordered Hoppock to appear at a show cause hearing and then at a subsequent contempt hearing. Upon review of Hoppock’s conduct as a court reporter, we find that Hoppock is in willful contempt of court and should be sanctioned.

FACTS

¶2. William M. Hoppock served as the court reporter for Rankin County Chancery Judge Thomas L. Zebert until mid 2002. In recent years, Hoppock’s delinquencies in completing appellate court transcripts posed a recurring problem in the Mississippi appellate courts. We issued numerous monetary sanctions orders against Hoppock for his failure to file transcripts on time in cases on appeal. Those sanctions alone were not successful in inducing Hoppock to complete his transcripts in a timely manner. After monetary sanctions failed to get action from Hoppock on transcripts in several cases, we ordered Judge Zebert to replace Hop-pock and to appoint a substitute court reporter to complete those overdue transcripts. In those cases, Hoppock was also required to cooperate with the replacement court reporter and to turn over his notes and tapes so that the transcript could be completed by the substitute.

¶ 3. Concurrently with our attempts to obtain some level of compliance from Hop-pock, the Mississippi Board of Certified Court Reporters initiated an investigation of Hoppock’s delinquencies. On June 25, 2002, the Mississippi Board of Certified Court Reporters suspended Hoppock for a year from further activities as a court reporter.

¶ 4. The Board’s suspension order specifically required Hoppock to complete the transcripts then pending and to file monthly reports detailing his progress in those cases still pending. Hoppock failed to comply with that order and failed to pay past-due sanctions from other cases as ordered by this Court. The court reporters who had replaced Hoppock in those cases in which he had been removed reported that he had not complied with the order requiring him to cooperate with the replacement in seeing that the transcripts were completed.

¶ 5. In view of those facts, we ordered Hoppock to appear in person at a show cause hearing before a panel of this Court. On October 10, 2002, the panel ordered Hoppock to address eight separate cases in which it appeared that he had failed to comply with our orders. In five of those cases, Hoppock had not turned over his transcription notes, tapes and other necessary materials to the replacement court reporter. In those same five cases and in three additional cases, Hoppock had not paid court-ordered sanctions. The total amount of those sanctions was $1200. Additionally, the October 10 order required Hoppock to show cause why he had not complied with the order of the Mississippi Board of Certified Court Reporters.

¶ 6. The hearing was set for October 29, 2002, in the Supreme Court courtroom. The notice specifically informed Hoppock that he was to show cause why he should not be sanctioned further in eight specific cases and for failing to comply with the Court Reporter Board’s order. The order informed him that he would be allowed to call witnesses and present testimony if he so desired. Finally, the order required Hoppock to bring all remaining notes, tapes and other transcription materials with him when he appeared at the hearing.

¶ 7. After the October 10 show cause order was issued, Hoppock paid the $1200 in sanctions which were then outstanding. He presented a check to the Clerk of the Court on October 25, 2002. Thus, other than the tardiness of his payment, no issue remained regarding unpaid sanctions owed.

¶ 8. A hearing on the remaining charges listed in the show cause order was held before a panel of this Court on October 29, 2002. Hoppock appeared and was not represented by counsel. C. Alleen McLain, the Mississippi Bar’s representative on the Board of Certified Court Reporters, presented the contempt action to the panel. The primary claims against Hoppock at the show cause hearing related to his conduct in three cases. In Spang v. Tullos, No.2002-TS-00200, Moore v. Bell, No.2002-TS-00536, and Strain v. Strain, No.2001-CA-01628, Hoppock had been removed as court reporter and had been ordered to turn his tapes, notes and other materials over to the substituted court reporter in each of those cases. The transfers were due in August and September of 2002.

¶ 9. At the show cause hearing, court reporter Linda Sudduth was called to testify about her involvement in the Spang, Moore, and Strain eases. Judge Zebert appointed Sudduth to replace Hoppock in those cases after Hoppock’s removal by this Court. Sudduth testified that Hop-pock did not turn over any materials pertaining to those three cases until October 28, 2002, which was the day before the show cause hearing. Hoppock had been ordered to turn over his tapes and notes to the replacement court reporter in those cases in August and September of 2002. When he did finally relinquish the materials on October 28, they were in substantial disarray, and some of the tapes and notes were unusable.

¶ 10. The October 10 show cause order also referenced two cases in which Cheryl Pemberton had been appointed by Judge Zebert to replace Hoppock. Those two cases were Gill v. McIntyre, No.2001-TS-01927, and Watson v. Watson, No.2002-TS-00032. Pemberton claimed that Hop-pock had not paid her the court reporter’s fee in Gill. Pemberton did not appear at the hearing, and the record is incomplete as to Hoppock’s cooperation or lack thereof in those two cases. The appeal in Watson was dismissed in April of 2003, and the appeal in Gill was dismissed in March of 2003 by agreement of the parties.

¶ 11. The show cause order also listed three other cases in which Hoppock had been sanctioned for failure to perform his duties. In those cases, Hoppock had been ordered to tender payment months earlier, but he had not paid the sanction. As noted, Hoppock submitted a check to the Clerk of the Court and paid all overdue sanctions on October 25, 2002.

¶ 12. Finally, the show cause order noted that Hoppock had not complied with the order of the Mississippi Board of Certified Court Reporters which had required him to pay all sanctions then due and to file certain monthly reports detailing his progress in the appeals assigned to him which were presently before this Court. At the hearing, Hoppock offered no explanation for his failure to comply with the order of the Court Reporters Board.

¶ 13. Immediately after the show cause hearing before the panel on October 29, we found that Hoppock had not sufficiently shown cause for his failure to comply with numerous Supreme Court orders. The panel ordered Hoppock to appear on November 18, 2002, and to defend against charges of criminal and/or civil contempt.

¶ 14. Hoppock appeared at the contempt hearing pro se. Meen McLain again appeared on behalf of the Court Reporters Board. The testimony was similar to that produced at the initial hearing. Linda Sudduth testified that she still had not received complete assistance from Hoppock in the three cases now assigned to her. Hoppock’s main defense was that there was confusion about the procedure in which he was to turn over the transcription materials to the replacement court reporters. He also claimed .that he had experienced equipment problems and had been unable to work on the appellate transcripts for some amount of time.

DISCUSSION

¶ 15. We are obligated to control our docket in an orderly fashion and to insure that appeals are handled as expeditiously as possible. The contempt power is an important tool for keeping order and maintaining an efficient court system. See Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987) (quoting Bessette v. W.B. Conkey Co., 194 U.S. 324, 333, 24 S.Ct. 665, 668, 48 L.Ed. 997 (1904) (contempt power “has been uniformly held to be necessary to the protection of the court from insults and oppressions while in the ordinary course of its duties, and to enable it to enforce its judgments and orders necessary to the due administration of law and the protection of the rights of suitors”)); Ex parte Robinson, 86 U.S. (19 Wall.) 505, 510, 22 L.Ed. 205 (1873) (existence of contempt power “essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice”); Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 227, 5 L.Ed. 242 (1821) (courts by their creation vested with power “to impose silence, respect, and decorum in their presence, and submission to their lawful mandates”).

¶ 16. This Court and the other courts of this State have the inherent authority to hold an officer of the court who appears before a particular tribunal to be in contempt if the officer displays contemptuous conduct toward that court. Wyssbrod v. Wittjen, 798 So.2d 352, 359-60 (Miss.2001); Purvis v. Purvis, 657 So.2d 794, 798 (Miss.1994); Bean v. Broussard 587 So.2d 908, 911 (Miss.1991). See also Jeffery Jackson & Mary Miller, Encyclopedia of Mississippi Law Ch. 20 (2001). Court reporters are officers of the court and therefore fall under this Court’s disciplinary authority. Doby v. State, 557 So.2d 533, 536 n. 2 (Miss.1990). See also Rule IX(A)(2) of the Mississippi Rules Governing Certified Court Reporters. By accepting a position as Judge Zebert’s official court reporter, Hoppock submitted himself to the authority of the courts of Mississippi and was required to abide by the orders and procedures of this and all other state courts.

¶ 17. In his conduct as an official court reporter, Hoppock has continually been delinquent in the completion of trial transcripts for appeals. He has been sanctioned numerous times in more than ten different cases. In recent years, he has been sanctioned in an amount exceeding $1500. Lesser punishment in the form of monetary sanctions was not successful in ending Hoppock’s dilatory practices. We were forced to proceed to the present contempt proceedings when Hoppock ignored other efforts to compel compliance. The question before the Court is whether Hop-pock’s conduct rises to the level of contempt and, if so, what should be done about it.

¶ 18. As the allegations here involve the charge that Hoppock has willfully refused to comply with our orders, the contempt here is classified as criminal contempt. Criminal contempt proceedings are “maintained solely and simply to vindicate the authority of the court or to punish otherwise for conduct offensive to the public in violation of an order of the court.” Varvaris v. State, 512 So.2d 886, 887 (Miss.1987) (quoting Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977)). Unlike civil contempt which would be ordered to induce prospective compliance with a court order, criminal contempt punishes past conduct. See also Dennis v. Dennis, 824 So.2d 604, 608 (Miss.2002) (noting difference between civil and criminal contempt); Newell v. Hinton, 656 So.2d 1037, 1044 (Miss.1990); Criminal contempt may be found only when the guilty party has willfully, deliberately and contumaciously ignored the court. Premeaux v. Smith, 569 So.2d 681, 683-84 (Miss.1990). Additionally, criminal contempt may be direct or constructive. Generally,

[d]direct criminal contempt involves words spoken or actions committed in the presence of the court that are calculated to embarrass or prevent the orderly administration of justice. Punishment for direct contempt may be meted out instantly by the judge in whose presence the offensive conduct was committed- Unlike direct contempt, constructive contempt involves actions which are committed outside the presence of the court....

In re Williamson, 838 So.2d 226, 237 (Miss.2002).

¶ 19. To date, there are no reported cases in which a Mississippi court reporter has been found to be in contempt of court. Other jurisdictions, however, have dealt with contemptuous court reporters.

¶ 20. The state courts of Arkansas have faced court reporter contempt actions in several recent cases. In Poyner v. Arkansas Contractors Licensing Bd., 336 Ark. 83, 985 S.W.2d 298 (1999), the Arkansas Supreme Court considered a case in which a substitute court reporter had failed to obey certain writs ordering her to complete a transcript and for failing to appear at a hearing on the matter. The court reporter pled guilty to the contempt charge and was sentenced to serve four days in the Pulaski County Jail. In Ross v. State, 346 Ark. 180, 55 S.W.3d 770 (2001), the Supreme Court of Arkansas instigated a contempt action against court reporter Madeline McClure for McClure’s failure to file seven appellate transcripts. Instead of the appellate court sitting as fact finder, the appellate court there appointed a special master to conduct the evidentiary hearing. Upon review of the special master’s findings, the Arkansas Supreme Court found that McClure was in willful contempt of court for her failure to comply with that court’s orders. It noted that McClure was subject to a fine, incarceration, or both. That court ultimately determined that the revocation of McClure’s license by the Arkansas Board of Certified Court Reporters was punishment enough. Other than imposition of court costs, the Arkansas Supreme Court issued no further sanctions against McClure. In Hamilton v. Jones, 351 Ark. 561, 95 S.W.3d 809 (2003), another Arkansas court reporter pled guilty to contempt for failing to file an appellate transcript on time. She was sanctioned $100 after the court found mitigating circumstances.

¶ 21. In Matter of Hatfield, 607 N.E.2d 384 (Ind.1993), the Supreme Court of Indiana jailed a court reporter for seven days for willfully disobeying a court order. She was found guilty of indirect criminal intent. The court concluded, however, that it would reconsider the jail sentence if the court reporter could show that she had completed the transcript by the time she was to report to jail.

¶22. In the case of In re Miles 55 S.W.3d 203 (Tex.App.2001), the Texas Court of Appeals sanctioned court reporter Jacqueline Miles $500 and ordered her jailed for three days for failing to complete and file transcripts. In another Miles case, In re Miles, 64 S.W.3d 445 (Tex.App.2001), the Texas court again ordered court reporter Miles to be jailed. This situation was civil in nature as she was ordered to remain jailed until she completed the transcript in question. In the case of In re Ryan, 993 S.W.2d 294 (Tex.App.1999), another Texas court reporter received monetary sanctions after being found in criminal contempt of the appellate court.

¶ 23. After a full review of the record in this matter, we find that William M. Hoppock is in constructive criminal contempt of this Court for his repeated failures to file trial transcripts for appeals and to abide by our orders. Specifically, in the Spang, Tullos, Moore and Strain cases, Hoppock was directed to complete the trial transcripts by a date certain. When he failed to complete his work and when he faded to show cause for his failures, he received monetary sanctions in each of those cases. Monetary sanctions alone were ineffective and Hoppock still refused to file the transcripts. By orders entered in August and September of 2002, Hoppock was removed as court reporter in each of those three cases. The orders in each of those cases specifically required Hoppock to assist his replacement by immediately transferring his tapes, notes and other transcription materials to the replacement court reporter. Despite that clear order, Hoppock made no effort to cooperate with his replacement until October 28, 2002, which was the day before the initial show cause hearing before this Court in this matter. Even then, his attempt to transfer the court reporter material was not helpful as the notes and tapes were not presented in any organized fashion. Additionally, our order of October 10, 2002, required Hoppock to bring all remaining tapes and notes to the hearing on October 29. Hoppock appeared at that hearing without some of the materials in the Spang, Moore and Strain cases. We find that Hoppock has willfully and deliberately ignored several of our orders related to those three cases. He failed to file the trial transcripts on time in each of those cases and then when he was removed and ordered to assist his replacement, he ignored those orders and made no attempts to comply with those orders. The appeals in each of those cases were delayed as a direct consequence of Hop-pock’s repeated failures to perform his court reporter duties and to comply with our orders.

CONCLUSION

¶ 24. The position of court reporter is of crucial importance in the efficient administration of the judicial system of this State. It is impossible for the appellate courts to perform their obligations without accurate trial court records. Until the trial court transcript is completed and filed by the court reporter, an appeal can not proceed. Orderly and prompt appellate consideration is of obvious importance to all litigants who appear before this Court or the Mississippi Court of Appeals. Through his repeated failure to complete trial transcripts in a timely manner, Hop-pock has had a serious negative effect on the efficiency of this Court. Hoppock repeatedly ignored orders requiring him to complete transcripts. He then ignored other orders mandating that he turn over his tapes and notes to the replacement court reporter.

¶ 25. We find that Hoppock’s conduct cannot be condoned and that William M. Hoppock is in willful constructive criminal contempt of this Court for his repeated failure to comply with our orders. We revoke the court reporter certification of William M. Hoppock as of the date of this opinion. We further find that Hoppock should pay all costs of the contempt proceedings in this matter. Costs incurred in the two hearings, including attorney’s fees and court reporter’s fees, are assessed against Hoppock and shall be paid within thirty days of the issuance of a separate order assessing costs.

¶ 26. COURT REPORTER WILLIAM M. HOPPOCK IS FOUND IN WILLFUL CONSTRUCTIVE CRIMINAL CONTEMPT OF THIS COURT, HIS COURT REPORTER CERTIFICATION IS HEREBY REVOKED, AND COSTS ARE ASSESSED AGAINST HOPPOCK AND SHALL BE PAID WITHIN THIRTY DAYS OF THE ISSUANCE OF A SEPARATE ORDER ASSESSING COSTS.

PITTMAN, C.J., McRAE AND SMITH, P.JJ., COBB, CARLSON AND GRAVES, JJ., CONCUR. EASLEY, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: CARLSON, Justice, for the Court. McRAE, Presiding Justice,

license: Public Domain

text:
    Antonio MURRAY v. STATE of Mississippi.
    No. 2001-KA-01524-SCT.
    Supreme Court of Mississippi.
    July 24, 2003.

      Donna Sue Smith, Columbus, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
   CARLSON, Justice, for the Court.

¶ 1. Having been convicted of five counts of aggravated assault and sentenced to five concurrent fifteen years sentences in the custody of the Mississippi Department of Corrections, Antonio Murray (Murray) appeals from the final judgment of the Circuit Court of Lowndes County, claiming that the circuit court erred in denying his motion to dismiss the charge of murder against him, in refusing jury instructions, and in abusing its discretion as to the admissibility of evidence. Finding no reversible error, we affirm the judgment of the circuit court.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On April 23, 1999, a party was held at the home of Monique Ledbetter, located on the corner of 11th Avenue South and 7th Street South in Columbus. As it began to get dark, the party spilled over from the house to the vacant lot directly across the street. At least 100 people attended the party, including members of two rival gangs.

¶ 3. Around 10:00 p.m., people from the “Northside” of Columbus began to arrive at the party, including Aaron Dumas, Keisha Thomas, Corrie Morris, Dathan McCoy, and Jimmy Weatherspoon. Earlier in the day, Murray had gotten into a fight with Dumas’s cousin. When Dumas heard loud words coming from Mareyo Hines, Murray’s cousin, he attempted to get his friends in his car and leave the scene of the party. However, as he was trying to leave, a bottle was thrown at his rear window. He turned around and saw Murray “pull up a gun and start shooting.” Dumas testified that he saw Murray pull the gun from under his shirt. When Murray fired the gun, the car’s rear window shattered; however, the occupants were able to flee the scene unharmed. Tragically, Ledbetter was killed outside her home by one of the errant bullets.

¶4. After arriving at a safe location, Dumas noticed a bullet hole in his back passenger window. When questioned by police, Dumas stated he heard approximately four or five shots fired. He indicated that Murray was behind his car and at an angle when Murray fired the shots. Dumas testified that he did not see anyone else at the party with a handgun.

¶ 5. Shift Lieutenant Carl Kemp of the Columbus Police Department examined the car driven by Dumas. Lt. Kemp found two projectiles in Dumas’s vehicle. The two fragments were collected and sent for testing. At the hospital, Shift Lieutenant Keith Worshaim gave Lt. Kemp Ledbet-ter’s clothing and a specimen bottle containing one spent projectile removed from the deceased. After searching the crime scene, the police were unable to locate spent cartridges or the murder weapon.

¶ 6. After interviewing witnesses who were present when the shooting occurred, it was determined that Murray was a chief suspect. Testimony differed widely as to how many shots were fired and their point of origin. At least six witnesses testified that they saw Murray with a gun, and several saw him fire it at Dumas’s vehicle. Several witnesses testified that Hines was trying to start a fight with Dumas as he and the others were leaving and that Murray was standing nearby with a gun. Many witnesses testified that shots were coming from different places.

¶ 7. For one year and three months, all evidence relating to the murder and aggravated assaults laid undiscovered in Lt. Kemp’s file cabinet. At some point, Lt. Kemp sent two projectiles to the FBI laboratory for ballistics testing identifying one as being from Ledbetter’s body and the other as being recovered from Dumas’s vehicle. The FBI testing revealed that both of the projectiles could have been fired by the same gun. A more definite conclusion could not be reached. The report also stated that the projectiles most likely came from either a Hi-Point nine millimeter Luger pistol, a Hi-Point .380 caliber pistol, or a Hi-Point nine millimeter Luger carbine. Eyewitness testimony revealed, and Murray admitted, that he had a nine-millimeter pistol that night.

¶ 8. At the trial, Shemika Murray, Murray’s sister, testified that she gave Murray the nine-millimeter handgun. She testified that she hid the gun in a barbeque grill, but later that night Murray “tossed” the gun into some bushes. Lt. Kemp testified that Shemika told him that Murray threw the gun toward the Tombigbee River.

¶ 9. Lieutenant Selvain McQueen later took over Murray’s case. He discovered the evidence in Lt. Kemp’s file cabinet, created an evidence card, and placed it in an evidence locker. In February 2001, defense counsel went to the police department and asked to see the evidence. Lt. McQueen and others produced a brown paper bag which contained Ledbetter’s clothing, a gun shot residue kit and a sealed clear specimen container containing a projectile which was marked by Lt. Wor-shaim as the projectile he was given at the hospital the night Ledbetter was killed.

¶ 10. Shortly thereafter, District Attorney Forrest Allgood met with the officers involved in the case and viewed the same evidence. There was no notation on the evidence card that the third projectile was removed from the evidence locker for viewing during this meeting, but there was testimony that it was removed from the container and viewed. This was the last time the third projectile was seen.

¶ 11. In March 2001, the trial court ordered that the third projectile, which was viewed by Allgood and previously by defense counsel, be sent to the FBI laboratory. In late April and early May, the district attorney and defense counsel were notified that the third projectile was missing and was never sent to the FBI lab.

¶ 12. After it was discovered that the third projectile was missing, the first projectile, which Lt. Kemp had labeled as coming from Ledbetter’s body and sent to the FBI laboratory, was sent to a genetics laboratory. It was determined that it did not have blood on it. The second projectile, which had also been tested at the FBI lab and which Lt. Kemp labeled as coming from Dumas’s vehicle, was not sent in for this same analysis.

¶ 13. A stipulation was entered into the record that the bullet received from the hospital had been lost from police custody prior to trial. That bullet had never been tested by either the prosecution or the defense.

¶ 14. Murray was convicted of five counts of aggravated assault upon Dumas, Jimmy Weatherspoon, Keisha Thomas, Corrie Morris, and Dathan McCoy and was sentenced to serve five concurrent sentences of fifteen years in the custody of the Mississippi Department of Corrections. Then, the State filed a motion to dismiss the murder count without prejudice against Murray, and this motion was granted. Murray filed a motion for JNOV or, in the alternative, a new trial which was denied by the trial court. Murray timely appealed to this Court, citing the following issues for consideration:

I. WHETHER THE CIRCUIT COURT ERRED IN DENYING MURRAY’S DUE PROCESS MOTION TO DISMISS THE MURDER CHARGE AGAINST HIM.

II. WHETHER THE CIRCUIT ERRED BY REFUSING JURY INSTRUCTIONS D-31 AND D-32.

III. WHETHER THE CIRCUIT COURT ERRED IN ALLOWING THE PROSECUTION TO ELICIT TESTIMONY ABOUT THE AUTOPSY OF THE MURDER VICTIM AND THE GUN SHOT RESIDUE KIT TAKEN FROM THE MURDER VICTIM’S BODY.

IV. WHETHER THE TRIAL COURT ERRED BY SUSTAINING THE STATE’S OBJECTION TO TESTIMONY REGARDING AARON DUMAS’S PRIOR CONVICTION.

DISCUSSION

I. WHETHER THE CIRCUIT COURT ERRED IN DENYING MURRAY’S DUE PROCESS MOTION TO DISMISS THE MURDER CHARGE AGAINST HIM.

¶ 15. Murray was indicted on five counts of aggravated assault and one count of murder. Before the trial commenced on the aggravated assault charges, Murray filed a pretrial motion to dismiss the murder charge based on a denial of due process and intentional loss of evidence. The trial court denied this motion; however, the trial commenced only as to the five counts of aggravated assault.

¶ 16. In a recent opinion, this Court held:

The standard that developed after [California v.] Trombetta, [467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 418 (1984)] is that the evidence in question must meet the two-part test stated above, that (1) evidence must possess an exculpatory value that was apparent before the evidence was destroyed, and (2) be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. In addition, “the prosecution’s destruction of evidence must not have been in bad faith.” Tolbert [v. State], 511 So.2d 1368, 1372 (Miss.1987); see also Taylor [v. State], 672 So.2d 1246, 1271 (Miss.1996)(citing Tolbert).
The question of whether Trombetta actually mandated a finding of bad faith on the part of the State in such cases was no longer open to interpretation after the U.S. Supreme Court’s decision in Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). Youngblood dealt with a failure to refrigerate clothing worn by a victim of a sexual assault and to test the clothing for semen samples. In Youngblood, 488 U.S. at 58, 109 S.Ct. 333, the U.S. Supreme Court stated: “We therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” The Youngblood rule was applied by this Court in Holland v. State, 587 So.2d 848, 869 (Miss.1991).

State v. McGrone, 798 So.2d 519, 522 (Miss.2001). Therefore, this Court has adopted a three-part test which is to be applied when a due process violation has been claimed by the defendant.

While bad faith may not be a prong of the two-part test for materiality under Trombetta, it is a requirement for a due process violation in a preservation of evidence case under Youngblood, Tol-bert, Taylor, and the Court of Appeals decision in Trollinger v. State, 748 So.2d 167 (Miss.Ct.App.1999). We therefore clarify that the following is required in order to find a due process violation by the State in a preservation of evidence case: (1) the evidence in question must possess an exculpatory value that was apparent before the evidence was destroyed; (2) the evidence must be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means; and (3) the prosecution’s destruction of the evidence must have - been in bad faith.

McGrone, 798 So.2d at 523.

¶ 17. The first prong of the test specifically states the exculpatory nature of the evidence must have been apparent before the evidence was destroyed. Here, there is no evidence that law enforcement was aware of the exculpatory value of the projectile. It had not been tested; therefore, there is no way anyone could have known in advance how the test results would have turned out.

¶ 18. Regarding the second prong, there can be no question that Murray wholly failed to meet this requirement. Murray must show that comparable evidence could not be obtained by other reasonable means. Clearly, Murray could have produced the key piece of evidence which would have conclusively and forever proven his innocence-the gun. This, of course, presumes that he is telling the truth. According to Murray’s sister, he tossed the gun near a bluff on the Tombig-bee River. She later testified that she retrieved the gun and hid it in a barbecue grill, and Murray later threw it in some bushes. Without question, it was totally in Murray’s hands to produce the weapon. He chose not to do so even when this was the best evidence to clear himself.

¶ 19. Bad faith, the third and final prong, is defined as “not simply bad judgment or negligence, but rather ... conscious doing of a wrong because of dishonest purpose or moral obliquity; it is different from the negative idea of negligence in that it contemplates a state of mind affirmatively operating with furtive design or ill will.” Black’s Law Dictionary 139 (6th ed.1990). Tolbert also dictates that an inference that the evidence was favorable to the defense exists only “where the spoliation or destruction was intentional and indicates fraud and a desire to suppress the truth.” 511 So.2d at 1372 (quoting Washington v. State, 478 So.2d 1028, 1032-33 (Miss.1985)). Although the actions of the officers could certainly be characterized as negligent, there is no evidence of fraud, willful or deliberate destruction of evidence or a desire to suppress the truth by the State, and there is certainly no evidence of gross negligence. The only intentional destruction of evidence that occurred in this case was by Murray. There is no merit to Murray’s claims. Therefore, we find that the trial court did not err in its denial of the pre-trial motion to dismiss the murder charge.

II. WHETHER THE CIRCUIT ERRED BY REFUSING JURY INSTRUCTIONS D-31 AND D-32.

¶ 20. Murray argues that the trial judge erred in refusing to instruct the jury on the spoliation of evidence. He argues that such instruction was necessary since the lost evidence was exculpatory in nature and hindered his ability to put on a comprehensive defense. Murray contends that the circumstances in this case warrant such instruction due to the extreme inferences of fraud and suppression of evidence which establish an intentional spoliation of evidence.

¶ 21. Murray’s proposed Jury Instruction D-31 read as follows:

The Court instructs you the Jury that, if you believe that a sealed container with a blue lid was placed into the Columbus Police Department evidence room by Lt. Carl Kemp on July 24, 2000, and the sealed clear container with the blue lid remained in the custody of the Columbus Police Department until sometime after the District Attorney and the Columbus Police Department detectives unsealed that container and discovered therein a spent projectile and, further, you also find that the spent projectile, but not the clear container with a blue lid, disappeared sometime afer[after] this Court ordered that spent projectile sent, by Columbus Police Department, to the FBI Laboratory for testing and analysis, then you must decide if the loss, or spoliation, of that spent projectile indicates fraud and a desire to suppress the truth or if the loss was intentional or negligent.
If you find from the evidence, beyond a reasonable doubt, that the loss of the spent projectile which had been in the sealed clear container with the blue lid in the Columbus Police Department evidence room was intentional or indicates fraud with a desire to suppress truth, then you may infer that the testing and analysis of the lost, spent projectile would have been unfavorable detrimental to the prosecution of the State’s case against Antonio Murray and you the Jury may give the loss of that evidence such weight, worth, credibility and importance as you determine it entitled.

Murray’s proposed Jury Instruction D-32 read as follows:

The Court instructs the jury that if you believe Officer Keith Worshaim retrieved a clear plastic container with a blue top and containing a spent projectile inside that container and that Officer Worshaim turned that container and its contents over to Cpl. Carl Kemp who placed the container into the evidence locker at the Columbus Police Department and that, after this Court ordered the forensic examination of the spent projectile found in the clear plastic container with a blue lid, the Columbus Police Department could not, and has yet, located that spent projectile then the failure of the State of Mississippi to produce that spent projectile at this trial creates an inference that the production of the spent projectile would have been detrimental to the State’s prosecution of this case.

¶ 22. The well-established standard of review for challenges to jury instructions is as follows:

Jury instructions are to be read together and taken as a whole with no one instruction taken out of context. A defendant is entitled to have jury instructions given which present his theory of the case, however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence. Austin v. State, 784 So.2d 186, 192 (Miss.2001)(quoting Humphrey v. State, 759 So.2d 368, 380 (Miss.2000)).

Smith v. State, 802 So.2d 82, 88 (Miss.2001).

¶ 23. As we have previously stated, there is no evidence in the record the police department intentionally spoiled any evidence pertaining to this trial. Because there was no evidence supporting these instructions, the trial court did not abuse its discretion in refusing to grant the instructions requested by Murray.

III. WHETHER THE CIRCUIT COURT ERRED IN ALLOWING THE PROSECUTION TO ELICIT TESTIMONY ABOUT THE AUTOPSY OF THE MURDER VICTIM AND THE GUN SHOT RESIDUE KIT TAKEN FROM THE MURDER VICTIM’S BODY.

¶ 24. Pursuant to this Court’s standard of review, the admissibility of evidence rests within the trial court’s discretion. Hall v. State, 611 So.2d 915, 917 (Miss.1992); Johnston v. State, 567 So.2d 237, 238 (Miss.1990). However, this discretion must be exercised within the con-fínes of the Mississippi Rules of Evidence. Id. at 238. This Court will only reverse the ruling of a trial court where such discretion has been abused and a substantial right of a party has been affected. Johnson v. State, 666 So.2d 499, 503 (Miss.1995); Green v. State, 614 So.2d 926, 935 (Miss.1992).

¶ 25. Murray argues that the trial court erred in allowing, over objection, the prosecutor to elicit testimony concerning the Ledbetter autopsy and homicide investigation. He claims that contrary to the prosecutor’s argument, counsel did not “open the door” to this line of questioning. He asserts that the admission of this testimony was significantly prejudicial and caused the jury to consider that a homicide had been committed the night of the aggravated assaults and could easily have swayed the jury to believe Murray was responsible for this homicide.

¶ 26. The State contends that it was only attempting to clarify the confusion surrounding testimony as to the collection and storage of evidence. The State further argues that the trial court denied Murray’s motion in limine to prevent the prosecution from admitting evidence or testimony of the murder investigation because the murder and the aggravated assaults were so interconnected that mention of the homicide was necessary for the presentation of a coherent case.

¶ 27. Murray relies on United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), in arguing that the door was not opened. However, in Young, the U.S. Supreme Court was reviewing comments made by the prosecutor in closing arguments in an attempt to counter defense counsel’s repeated attacks on the prosecutor’s integrity. The Supreme Court stated that a criminal conviction was not to be overturned on the basis of the prosecutor’s comments standing alone, but the statements and conduct of all parties must be viewed in context. Id. at 11, 105 S.Ct. 1038.

¶ 28. In the case subjudice, defense counsel elicited testimony from Lt. Kemp concerning the autopsy and the gun shot residue kit taken from Ledbetter. The prosecutor’s inquiry on re-direct examination only developed the defense inquiry. Additionally, the trial court found that the probative value of the evidence outweighed any prejudice and gave a jury instruction directing the jury to disregard the murder evidence in making its determination on the charges at hand.

¶ 29. The general rule is that a defendant cannot complain of the evidence which he himself brings out. Simpson v. State, 366 So.2d 1085, 1086 (Miss.1979) (citing Stone v. State, 210 Miss. 218, 49 So.2d 263 (1950)).

[W]here the defense attorney inquires into a subject on cross-examination of the state’s witness, the prosecutor on rebuttal is certainly entitled to elaborate on the matter. For example, in Jefferson v. State, 386 So.2d 200 (Miss.1980), the defendant’s attorney on cross-examination asked the prosecutrix in a rape case regarding a prior rape the defendant had allegedly committed. On redirect, the prosecuting attorney developed the details of the prior incident. On appeal, we held that evidence of the prior rape, though otherwise inadmissible, could properly be presented by the prosecution where the defendant has opened the door. See Simpson v. State, 366 So.2d 1085, 1086 (Miss.1979); Johnson v. State, 260 So.2d 436, 438 (Miss.1972). When allowing this sort of testimony, however, the trial judge should be careful to assure that the prosecution does not go beyond the scope of the “invitation” extended by defense counsel. Based upon our careful review of the transcript in this regard, we find that the invitation was not exceeded.

Winters v. State, 449 So.2d 766, 770-71 (Miss.1984).

¶30. Because the prosecution did not exceed its invitation extended by defense counsel, we find no abuse of discretion in the allowance of the testimony concerning the investigation of the homicide.

IV. WHETHER THE TRIAL COURT ERRED BY SUSTAINING THE STATE’S OBJECTION TO TESTIMONY REGARDING AARON DUMAS’S PRIOR CONVICTION.

¶ 31. Murray argues that the trial court erred in refusing to allow him to develop testimony concerning Dumas’s prior conviction and pending charge of cocaine possession. He argues that the trial court’s determination that such questioning would be improper impeachment violates his Fourteenth Amendment due process rights to fully cross-examine witnesses against him. He further argues that the Mississippi Rules of Evidence allow wide-open cross-examination and impeachment of witnesses through evidence of prior conviction.

¶ 32. This Court has repeatedly held that “when testimony is excluded at trial, a record must be made of the proffered testimony in order to preserve the point for appeal.” Evans v. State, 725 So.2d 613, 669-70 (Miss.1997) (quoting Gates v. State, 484 So.2d 1002, 1008 (Miss.1986)). See also Miss. R. Evid. 103(a)(2); Woodham v. State, 800 So.2d 1148, 1153 (Miss.2001); Russell v. State, 607 So.2d 1107, 1114 (Miss.1992). In Settles v. State, 584 So.2d 1260, 1265 (Miss.1991), this Court stated “if a proffer is required in the face of an erroneous ruling, surely no less is required to preserve the issue where no ruling is made.” Because Murray made no proffer for the record to'preserve the issue for appeal, we need not address this issue.

CONCLUSION

¶33. The trial court properly denied Murray’s motion to dismiss the murder charge, because Murray failed to prove intentional spoliation of evidence by the Columbus Police Department. The trial court was also correct in refusing to allow a spoliation of evidence instruction because the proposed instructions were not supported by the evidence. The trial court did not abuse its discretion in allowing the prosecutor to further inquire as to testimony concerning the autopsy and gathering of the gun shot residue kit from Ledbet-ter’s body after the defense counsel opened the door on cross-examination, or by sustaining an objection to additional testimony relating to Dumas’s prior convictions. Finding no reversible error, the judgment of the Circuit Court of Lowndes County is affirmed.

¶ 34. COUNTS II-VI: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF FIFTEEN (15) YEARS EACH IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCES SHALL RUN CONCURRENTLY WITH SENTENCES IMPOSED IN ANY OTHER COUNT.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB AND DIAZ, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. McRAE, P.J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION. EASLEY, J„ NOT PARTICIPATING.

McRAE, Presiding Justice,

Specially Concurring.

¶ 35. I agree with the affirmance of the trial court’s judgment and with the majority’s opinion, since it was this writer’s original majority with the exception of a couple of sentences with regard to the due process claims of the defendant concerning his motion to dismiss. Ultimately, the murder charge was never brought to trial, since the State’s motion to dismiss that charge was granted. Therefore, even if his due process rights had been violated, Murray was not prejudiced or injured since the charge was ultimately dismissed. I write separately only to point out that the issue regarding the motion to dismiss the charge of murder is moot; therefore a factual and meritorious determination of the issue is unnecessary.

¶ 36. Murray filed a pre-trial motion to dismiss the murder charge pending against him. Instead of dismissal, the circuit court chose to carry forward with the five aggravated assault charges and reserve ruling as to the murder charge. After Murray’s conviction on the five counts of aggravated assault, the State filed a motion to dismiss the murder charge. The circuit court found the State’s motion to be well taken and granted the dismissal. Murray now claims that his due process rights were violated by the court’s refusal to grant his motion to dismiss the murder charge. One can clearly see from the facts just laid out, the issue is moot. “The doctrine of mootness applies to cases where an actual controversy no longer exists.” Pickle v. State, 791 So.2d 204, 207 (Miss.2001). There no longer is a controversy as the murder charge has been dismissed. Once the murder charge was dismissed by the circuit court, Murray’s arguments regarding due process in relation to said charge were eliminated and it thus became a moot issue. For this reason, it is not necessary for the majority to reach the merits of Murray’s claim regarding a due process violation. The issue should have simply been summarized as moot without inquiry.

¶ 37. For this reason, I specially concur.


author: MOISE, Justice. McCALEB, Justice

text:
    228 La. 1088
    Mrs. Bernice McKNIGHT, Wife of George O. Irving, v. George O. IRVING.
    No. 42155.
    Supreme Court of Louisiana.
    Jan. 16, 1956.
    Montgomery, Barnett, Brown & Sessions, New Orleans, for defendant-appellant.
    Ogden & Woods, New Orleans, for plaintiff-appellee.
   MOISE, Justice.

This is an appeal from that portion of a judgment which reserved plaintiff’s right to claim alimony at a future date and reserved defendant’s right to defend such claim if ever made.

For a better understanding of the issues involved, reference must be made to the pleadings of record.

(a) On May 25, 1951, plaintiff sought a separation from bed and board from her husband on the grounds of cruel treatment;

(b) On June 27,1951, plaintiff filed a supplemental and amended petition, amplifying the acts of cruelty of her husband;

(c) On October 1, 1951, defendant filed his answer to plaintiff’s petition and supplemental petition, averring acts of cruelty toward him on the part of his wife and asking for a dismissal of her suit;

(d) On June 2, 1953 (more than two years having elapsed since the parties lived together), plaintiff filed a supplemental and amended petition, praying for an absolute divorce from defendant on the grounds of two years separation;

(e) On June 9, 1953, defendant filed his answer admitting the separation, and reconvened asking for a divorce in his favor for the same reasons given by plaintiff and further that plaintiff be barred from claiming alimony;

(f) On June 22, 1953, plaintiff filed a supplemental and amended petition, in which she reaffirmed the allegations of her petition of June 2, 1953 and prayed that defendant be condemned to pay her permanent alimony upon the rendition of the divorce decree;

(g) On September 13, 1954, plaintiff filed a motion to dismiss her claim for alimony, which motion and order were granted;

(h) The case went to trial, and on October 11, 1954 a judgment of absolute divorce between the parties was rendered by the Trial Judge.

On appeal, the defendant husband complains about the following portion of the judgment rendered:

“It is * * * decreed that the rights, if any, of plaintiff to claim alimony after divorce, and the rights of defendant, if any, to oppose any such demand, if it be ever made, and to set up any defense he may have thereto, are fully reserved to both parties, as the Court at this time has not passed on the question of fault in connection with the separation, since that is at this time a moot question.”

Article 160 of the LSA-Civil Code reads:

“ * * * that in cases where, under the laws of this State a divorce is granted solely on the ground that the married persons have been living separate and apart for a certain specified period of time, and the husband has obtained a divorce upon the ground of such living separate and apart, and the wife has not been at fault, then the Court may allow the wife in its discretion, out of the property and earnings of her husband, alimony which shall not exceed one-third of his income. * * * ” (Italics ours.)

The codal article is clear. To show fault, there must be pending a claim for alimony. The plaintiff wife, who has been accorded the right to alimony by showing the fault was not of her making, dismissed her claim for alimony. See, Article 491 of the Code of Practice; Barbara, Inc., v. Billelo, 212 La. 937, 33 So.2d 689; Breffeilh v. Breffeilh, 221 La. 843, 60 So.2d 457.

There being no justiciable issue in the instant case, to do what the defendant-appellant prays for would be the assuming of a position of authority by this Court which plainly we should not exercise.

Judgment affirmed at defendant’s cost.

HAMITER, J., concurs in the decree.

McCALEB, Justice

(concurring).

I think the short answer to the proposition advanced by appellant is that, since the wife obtained the divorce in this case, the question of her fault is not material as the clear provisions of Article 160 of the Civil Code accord her the absolute right to permanent alimony if she has not sufficient means for her maintenance. It is only when the husband has obtained a divorce upon the ground that the parties have been living separate and apart for two years that the question of the wife’s fault may be made an issue in determining her right to alimony.

It may be that Article 160 of the Civil Code, as written, operates unfairly in cases where the divorce is granted solely on the ground of the parties living separate and apart for two years. That, however, is a matter which should be addressed to the Legislature for correction; the Court is obviously without authority to rewrite the Article.

I respectfully concur in the decree.


author: PONDER, Justice.

text:
    228 La. 1093
    Elbert B. CONNELL v. DULIEN STEEL PRODUCTS, Inc.
    No. 42012.
    Supreme Court of Louisiana.
    Dec. 12, 1955.
    Rehearing Denied Jan. 16, 1956.
    Blanchard, Goldstein, Walker & O’Quin, Shreveport, for defendant-appellant.
    Mecom, Scott & Despot, Shreveport, for plaintiff-appellee.
   PONDER, Justice.

In this suit the plaintiff seeks to recover overtime pay, liquidated damages, and attorney’s fees under the provision of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., for services rendered as a night watchman while employed by the defendant. The defendant answered the suit alleging that the plaintiff was not employed for more than 40 hours per week and was not, therefore, entitled to overtime pay. The case was tried in the district court and the plaintiff was awarded judgment in the amount of $22,229.56 and $1,000 for attorney’s fees. The defendant has appealed.

The only question presented in this case is whether or not the plaintiff, under the contract of employment, was required to remain on the premises throughout the night. Counsel have entered into an agreement that the amount awarded by the district court is correct if the plaintiff was required under his employment to remain on the premises overnight.

The plaintiff was employed as a night watchman in a plant owned by the Reconstruction Finance Corporation. The plant was sold to the defendant under a contract which obligated it to liquidate the business and divide the proceeds with the Reconstruction Finance Corporation on a basis set forth in the contract. The defendant was required to post bond during the period of liquidation and the Reconstruction Finance Corporation retained certain supervision over the property during the period of liquidation. When the property was transferred to the defendant, the plaintiff was retained as night watchman. The plaintiff testified that shortly thereafter a representativa of the defendant company informed the plaintiff that a government inspector had been there and had checked his work and that the plaintiff would be required thereafter to stay on the premises all night and would be required to make five rounds each night and punch the clock after each round. The plaintiff’s testimony was contradicted by three witnesses who were officers and employees of the defendant company, insofar as the plaintiff was required to remain on the premises throughout the night. The trial judge in his written opinion states that he was not impressed as to their sincerity. The defendant’s witnesses admitted that it was the duty of the plaintiff to arrive on the premises at sundown, turn on the lights, and check everything including the locks and the gates; that he was to make five rounds during the night and punch the clock at various stations; and to check the' premises in the morning and turn off the lights. A representative of the Reconstruction Finance’Corporation testified that the plaintiff was on duty during all the night hours and, if such had not been the case, he would have reported it to his superiors since, according to his understanding of government instructions given to him, the property was to be guarded at all times during the dark hours by the defendant company. '

In light of this testimony and under the facts in this case, it is apparent that the plaintiff was required to watch the premises throughout the night and, such being the case, the plaintiff- is entitled to overtime pay and attorney’s fees.


text:
    228 La. 1096
    SUCCESSION of Miss Agnes T. MAGUIRE.
    No. 42116.
    Supreme Court of Louisiana.
    Dec. 12, 1955.
    Rehearing Denied Jan. 16, 1956.

      Wisdom, Stone, Pigman & Benjamin, John Minor Wisdom, Paul O. H. Pigman, New Orleans, Edmond E.'Talbot, New Orleans, of counsel, for opponent-appellant.
    Charles W. Wilson, Jr., Victor A. Sachse, Baton Rouge, for trustees.
    Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for testamentary executor.
   PONDER, Justice.

John B. Maguire, surviving brother and presumptive heir of Miss Agnes T. Maguire, deceased, brought suit seeking to have certain provisions in the decedent’s will declared invalid. The trustees named in the will and the executor interposed exceptions of no right or cause of action. The trial court sustained the exceptions and dismissed the suit. John B. Maguire has appealed.

The decedent left two olographic wills dated July 24, 1948. Both testaments, after making several bequests, contained identical provisions disposing, of the residuary estate of the deceased in the following language :

“I give and bequeath all the property of every nature and description of which I may die possessed, except that which I shall include in special legacies hereinafter mentioned, to the two persons who shall be respectively the pastor of St. Joseph’s' Catholic Church of Baton Rouge, Louisiana, and the pastor of St. Agnes’ Catholic Church of Baton Rouge, Louisiana, at the time of my death, and their respective successors, in trust nevertheless for the use and benefit' of young girls as a Loan Fund to be lent to them in order to enable them to fit themselves to earn a living. This is intended as a charitable trust for charitable and educational purposes1 created'to continue:in per-' petuity under the Oonstitution'’and laws of-the State 'of Louisiana. ' * 1 * * The said trustees shall have • unlimited discretion-'in thé selection of the beneficaries of this trust and in the administration of the■'property and funds of the trust, with all the rights permitted by-law to sell any property at any time belonging to thé-trust-and to reinvest the proceeds thereof,' imd to lend the capital as well as the income to said beneficiaries as they may see fit. * * ’ * To my cousin Agnes Maguire, mow-living-in-South Bend, Indiána, I would like the trustees tó give her every month the rent of one of the tenant houses- or the equivalent — 1 The trustees to'decide the dinount.”

The appellant contends that the trust provisions- in the will are not strictly for educational and charitable purposes because of "the trust provision relating to the-cousin Agnes Maguire and because of the provision giving the trustees unlimited discretion. He takes the position that it contravenes Section 16 of Article 4 of the Constitution of Louisiana, LSA-Const., the pertinent portion of which provides: “* * * No law shajl be passed authorizing the creation of substitutions, fidei commissas. or trust estates * * *■ and provided further that this prohibition as to trust estates or fidei commissas shall not, apply to donations strictly for educational, charitable, religious purposes * *

Counsel argues'that the rules governing the interpretation of wills are not applicable and to apply them would defy this specific constitutional provision. He states in his supplemental brief that this constitutional provision specifically governs both inter vivos and testamentary charitable trusts and that after the instrument’ embodying a trust has first been tested as a donation or will that the trust is then to be tested as to its validity as á trust.

As we take it the constitutional provision above quoted merely' excepts charitable, educational, and religious trust from the general rule prohibiting substitutions, fidei commissas,-- and trusts. This provision of the Constitution contemplates that the trust must be established by a valid donation inter vivos or a valid donation mortis causa. ■ It sets forth no rules governing the manner in which the donations may be tested and undoubtedly contemplates that the donations must be tested by the laws in existence at the time of its adoption. A donation mortis causa, whatever its nature may be, only takes effect at the death of the testator. This is true from its very nature because the testator could change his will any time prior to his death. Under the provisions of article 1697, LSA-Civil Code, a testamentary disposition becomes without effect if the person instituted or the legatee does not survive the testator. The evidence in this case shows, and it is not disputed, that the cousin Agnes Ma-guire, the legatee, did not survive the testatrix. The provision in the will that the testatrix would like for the trustees to give her cousin Agnes Maguire the rent from one of the tenant houses is merely a preca-tory suggestion. It is well settled in the jurisprudence of this state that precatory suggestions are not binding in law and are considered as not written. Succession of Hall, 141 La. 860, 75 So. 802; Girven v. Miller, 219 La. 252, 52 So.2d 843; Succession of Herber, 128 La. 111, 54 So. 579; Succession of Pleasants, 130 La. 267, 57 So. 923. Consequently under the codal article referred to and under the jurisprudence of this State, the disposition in favor of the cousin Agnes Maguire was without effect and must be considered as not written.

Insofar as the appellant’s contention that the unlimited discretion of the trustees would authorize loans to girls who are not in need is concerned, it is sufficient to say that the purport of the provisions is to give aid to those girls who have not sufficient funds to educate themselves. If this purpose is violated by the trustees, they at that time could be restrained.

The appellant contends that this is a mixed trust containing both a charitable and a private trust, in favor of the cousin, and that the law does not warrant the establishment of mixed trusts. Since we have arrived at the conclusion that the disposition to the cousin Agnes Maguire is without effect and considered as not written the only valid provision in the will establishing a trust is the one establishing an educational and charitable trust.

For the reasons assigned the judgment of the lower court is affirmed at appellant’s cost.


text:
    228 La. 1103
    George C. McCLATCHEY v. GUARANTY BANK & TRUST COMPANY, Joseph Walters & Marcel Duhon.
    No. 41842.
    Supreme Court of Louisiana.
    Dec. 12, 1955.
    Rehearing Denied Jan. 16, 1956.

      See also, 222 La. 735, 63 So.2d 738.
    J. Minos Simon, Lafayette, for plaintiff-appellant.
    Davidson, Meaux, Onebane & Nehrbass, Piccione & Piccione, Lafayette, for defendants-appellees.
   PONDER, Justice.

The plaintiff brought suit in the district court seeking to recover from the defendants the sum of $2,071 which he alleges was wrongfully paid to the defendants, Walters and Duhon, under a check given them by the plaintiff and cashed by the defendant bank. Walters and Duhon excepted to plaintiff’s petition on the ground that it disclosed no right or cause of action and answered alleging that the alteration was authorized by the plaintiff. The Bank interposed a plea of one year peremption under LSA-R.S. 6:53. The plea of peremption was sustained and the exception of no cause or right of action was referred to the merits. On trial the lower court gave judgment dismissing plaintiff’s suit. The plaintiff appealed. During the pendency of the appeal, the plaintiff died and his widow and son háve been substituted as appellants. Thereafter, the defendants filed a plea in abatement in this Court.

George C. McClatchey gave the defendants, Walters and' Duhon, his check drawn on the First National Bank of Lafayette, dated January 14, 1950, in the amount of $2,071, in payment of a gambling debt, representing losses on horse race wagers. The defendant Walters altered the check by striking out “First National Bank of Lafayette” and writing above the name of the defendant bank “Guaranty Bank, & Trust .Company” and changing the date of the year 1,950 to 1951 by placing a “1” over the “0”. There is some dispute in the evidence as to whether or not the word “hold” was written on the face of the check when it was executed, but the lower court arrived at the conclusion that the word “hold” was not written on the check and the trial judge states in his written opinion that an examination of the check bears out this conclusion as well as a preponderance of the evidence. We think his conclusion in, this respect is correct and the sole dispute arising in this case is whether or not McClatchey authorized Walters to make the above described alterations on the check. The testimony of McClatchey and Walters are in hopeless conflict.

The plaintiff’s suit is based on the ground that the payment of the check was secured through fraud and deceit by means of a forged or altered check and that the defendant bank was grossly negligent in cashing the check when the alterations were obvious to the naked eye.

Pretermitting the exception and pleas filed in this case it is apparent that the plaintiff McClatchey failed to prove his case. It is provided in Article 2983, LSA-Civil Code, “The law grants no action for the payment of what has been won at gambling or by a bet, except for games tending to promote skill in the use of arms, such as the exercise of the gun and foot, horse and chariot racing. And as to such games, the judge may reject the demand, when the sum appears to him excessive.” And it is also provided in Article 2984, LSA-Civil Code as follows: “In all cases in which the law refuses an action to the winner, it also refuses to suffer the loser to reclaim what he has voluntarily paid, unless there has been, on the part of the winner, fraud, deceit, or swindling.” \ A mere reading of these two articles of the Civil Code demonstrates that the loser of a gambling debt cannot claim what he has voluntarily paid “unless there has been, on- the part of the winner, fraud, deceit, or swindling.” It is well- settled in our basic law, as well as ‘our jurisprudence, that he who alleges -fraud must prove it. State ex rel. Woodard v. Ozley, 203 La. 579, 14 So.2d 452 and the numerous authorities cited therein. In the case of Sanders v. Sanders, 222 La. 233, 239, 62 So.2d 284, 286, this Court stated: “In the jurisprudence of this court it has said that the charge of fraud is a most serious one; that one who alleges fraud has the burden of establishing it by legal convincing evidence since fraud is never presumed, and that to establish the fraud exceptionally-strong proof must be adduced. Strauss v. Insurance Co. of North America, 157 La. 661, 662, 102 So. 861; Garnier v. Aetna Ins. Co. of Hartford, Conn., 181 La. 426, 159 So. 705; Mutual Life Ins. Co. of New York v. Rachal, 184 La. 430, 166 So. 129; Metcalf v. Monsour, 195 La. 570, 197 So. 235; Mente & Co., Inc., v. Roane Sugars, Inc., 199 La. 686, 6 So.2d 731; American Guaranty Co. v. Sunset Realty & Planting Co., Inc., 208 La. 772, 23 So.2d 409. It has also been said that evidence showing the fraud was probable or that the circumstances partook of a suspicious character is not sufficient, and that the fraud must be established by proof stronger than the mere preponderance of the evidence. Angichiodo v. Cerami, D.C., 35 F.Supp. 359; Fort v. Metayer, 10 Mart., O.S., 436; Charrotte v. Louisiana College, 1 La.App. 438; Woodward v. Barringer, La.App., 24 So.2d 200.” This pronouncement was quoted with approval in the case of Buxton v. McKendrick, 223 La. 62, 64 So.2d 844.

In view of the fact that the testimony of McClatchey and Walters is in hopeless conflict as to whether or not the alteration of the check was authorized, the plaintiff has failed to establish fraud with clear and convincing proof as required by our law and jurisprudence.

For the reasons assigned the judgment dismissing plaintiff’s suit is affirmed at appellant’s cost.

McCALEB, J., concurs in the decree.


text:
    228 La. 1109
    Oscar SANDERS v. Owen WALTHER et al.
    No. 42182.
    Supreme Court of Louisiana.
    Jan. 16, 1956.

      Sydney J. Parlongue, John F. Caraway, New Orleans, for plaintiff-appellant.
    Wm. H. McClendon, Jr., New Orleans, for defendants-appellees.
   PONDER, Justice.

In this suit the plaintiff is seeking to recover from the defendants $6,912.89 alleged balance due under a building contract, in the alternative for damages and loss of profit and in- the further alternative to recover on a quantum merit basis. The suit is based on the ground that the defendant, Owen Walther, breached a written contract by refusing to make further payments in accordance with the terms of the contract. The defense to the suit is to the effect that Wal-ther had already advanced a greater amount than was due under the contract; that the work was defective and that the plaintiff breached the contract by refusing to continue the work when he was informed that no more advances would be made until the plaintiff complied with the contract requiring him to progress with the work until the payments would be equal to 80% of the cost of the labor performed. On trial of the case, the lower court’gave judgment rejecting plaintiff’s demands and he has appealed.

During the month of January of 1953, Owen Walther, a contractor, entered into a contract with, Oscar,Sanders whereby Sanders was to furnish all labor necessary to complete a building according to certain plans and specifications for a consideration of $10,000 to be paid as follows, viz.: partial payments to be paid on Thursday of each week in an amount equal to 80% of the cost and value of labor performed during the preceding, week.

While there is a dispute as to the amount paid the plaintiff, it is apparent that more than 80% of the cost and value of the labor performed was advanced. The plaintiff concedes that he. has received $3,087.11 under the contract; however, the evidence shows that the plaintiff has received $3,669.-11 under the'contract, an overpayment of approximately $1,374.20. These fácts were not only established by the defendant but are supported by the testimony of two expert witnesses, produced by the defendant, who went to the job and estimated the extent of the work performed. These expert witnesses were the only experts who examined the premises and estimated the extent of the work performed. Under such1 circumstances, the plaintiff was not justified in discontinuing the work and his refusal to continue the work .was a breach of the terms of the contract.

Since we have arrived at the conclusion that the contract was breached by the plaintiff after he had received a substantial overpayment, it.would appear that the' judgment of-the lower'court dismissing his’demands is correct and that he is not, therefore, entitled to any additional compensation. '

For the reasons assigned, the judgment is affirmed at-appellant’s cost.