author: BOWLING, Justice,

text:
    Maggie EVANS v. CONTINENTAL GRAIN COMPANY, Wayne Poultry Company and American Motorists Insurance Company.
    No. 51223.
    Supreme Court of Mississippi.
    May 9, 1979.
    Rehearing Denied July 11, 1979.
    Odom & Parrish, J. Ronald Parrish, Laurel, for appellant.
    Gibbes, Graves, Mullins, Bullock & Ferris, E. Brooke Ferris, III, Laurel, for appellees.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

This is a workmen’s compensation case. Benefits were denied claimant [appellant] by the administrative judge, the commission and the circuit court. We reverse and remand.

Appellant had been employed by Continental Grain Company almost twenty-one years. Her job was to operate a “gizzard peeling” machine and perform other acts of packing and lifting in connection therewith. In her motion to controvert filed November 4, 1976, before the Workmen’s Compensation Commission, she alleged that on June 3, 1975, she was injured when she went to the restroom near her place of employment. It was contended that because of a watery and soapy condition on the floor she fell in a sitting position on the concrete floor and was injured. The employer and carrier filed their answer on November 8, 1976, admitting the injury and admitting that appellant was entitled to temporary total disability from June 5, 1975, through September 16, 1975. The answer contended that the appellant’s further disability was not the result of the accidental injury of June 3, 1975, but was caused solely by a pre-existing handicap, disease, condition or lesion.

The hearing before the administrative judge was set for February 17, 1977, at the Jones County Courthouse in Laurel. At that hearing testimony was taken only from appellant and a fellow worker, one Verlean Cooley. After this testimony, the hearing was recessed until May 10, 1977, at which time the hearing officer received the testimony of Dr. James C. Bass of Laurel and the deposition testimony of Dr. Donald Cook of Meridian. Other than documentary evidence the testimony of these four persons constituted all presented to the administrative judge.

At the hearing on February 17, 1977, appellant testified regarding her fall. She stated she immediately contacted Mr. Emmett Smith, her foreman, and reported the injury to him. It was decided that she would try to continue her work that day. Appellant reported to work the following day but the pain was so severe that she again contacted Mr. Smith, who sent her to the medical station where a nurse gave her some pills. Mr. Smith requested that she try to work because they were short-handed, and wait until the end of the day’s work before seeing a doctor. She was then sent to see Dr. R. L. Alexander, the company physician. Appellant did not work again and has not been able to work since, according to her testimony. She was treated by Dr. Alexander for several weeks until she was told by him that the company’s insurance carrier had advised that he would receive no further pay. Consequently, she then went to see another physician, Dr. Victor Applewhite, who stated to her that he could not treat her unless he was paid. After that, appellant contacted the Vocational Rehabilitation authorities who sent her to Dr. Douglas C. Brown, an orthopedic surgeon with the Laurel Bone & Joint Clinic.

Appellant testified that she had schooling only through the seventh grade; that she has tried to do other types of manual work, including housework, but could not do so. She testified that prior to her fall of June 3, 1975, she had had no trouble with her back and was able to do a full day’s hard work for almost twenty-one years with appellee-company.

Witness Verlean Cooley also had worked for appellee-company many years and was a member of the company’s safety committee. Her positive testimony was that during all the years of employment appellant had had no trouble whatever with her back. She further testified that she has seen appellant a lot of times since her injury and that she appears to be in pain continually and it is obvious that something was still wrong with her.

As hereinbefore stated, the only two witnesses other than appellant and Mrs. Cooley were Dr. James Bass and Dr. Donald Cook. The sole evidence offered by appellee was that of Dr. Bass. His testimony will be discussed later but the occasion should be referred to at this time in regard to developments at the end of the February 17, 1977, hearing. Appellant’s attorney filed a motion to set the case for further hearing in order to enable him to present medical evidence of appellant’s disability. He stated in this sworn motion that at the beginning of the hearing he was prepared to present and rely on the testimony of Dr. Douglas C. Brown, who, as stated before, had treated appellant at the instigation of the Vocational Rehabilitation authorities. The sworn motion of appellant’s attorney then stated that on the day of the hearing and before being called to give testimony, Dr. Brown, “at the last minute,” informed appellant’s attorney that his testimony would not conform to the written reports he previously had given after his examinations and treatments of appellant. Copies of these reports were attached to the verified motion. It was also stated it had been ascertained that all the reports given by Dr. Brown had not been made available to appellant’s attorney.

The reports of Dr. Brown attached to the motion showed that he had examined and treated appellant on at least four occasions subsequent to the company’s physician, Dr. Alexander, stopping his treatment because his pay was stopped. On January 6, 1977, Dr. Brown wrote:

Today the patient continues to have pain in the left lumbar spine with radiation to the left leg. She notes that it gets better at times with her brace, but at other times the pain is worse. Today the examination shows tenderness over the left sciatic nerve. Lumbar disc instability with degenerative arthritis L-5, S-l and left S-l nerve root impingement. Again I feel that this patient should be hospitalized for a myelogram for a possible lami-nectomy and fusion. At the present time she is being given Equagesic until an authorization for surgery can be obtained from Vocational Rehabilitation.
On February 10, 1977, Dr. Brown wrote: Today this patient’s case was discussed with her lawyer, and I was informed that she has a case going to court on Thursday, 2-17-77.
My opinion at the present time is that her symptoms are probábly due to the fall that she supposedly sustained some two years ago. I still feel that she merits hospital examination, myelography, and possibly laminectomy and fusion.
At the present time she is totally disabled from her previous occupation. However, this may be changed if her condition is found to be amenable to surgical correction.

It just so happened that Dr. Brown was an associate in the Clinic headed by appel-lees’ only witness, Dr. James Bass. His testimony will be discussed later at more length, but at this point it should be stated that his testimony on direct examination was that he had seen appellant one time and that was on August 18, 1975, and he found her without any physical trouble or disability of any kind. It is not for this Court to cast aspersions on anyone but it does appear curious to say the least as to why Dr. Bass’ associate, Dr. Brown, changed his mind on February 17, 1977, after having examined and treated appellant for several months.

At the May 4, 1977, hearing before the administrative judge, appellant offered the deposition of Dr. Donald Cook of Meridian, Mississippi. It was stipulated by attorneys for appellees that Dr. Cook was a qualified practicing orthopedic surgeon. Dr. Cook stated that he first saw appellant on March 31,1977, at which time she was complaining of pain in the lower back area. The history taken by him showed that she had not had any such complaints prior to her fall on June 3, 1975. He explained the process of every person over the age of twenty years developing some extent of degenerative disc condition in their back; some, of course, developing much worse than others. Dr. Cook stated that in his opinion the appellant had such a condition at the time of her injury but that the condition was “traumatically exacerbated” by the injury. When asked his opinion as to the cause of “traumatic exacerbation” of the disc, his opinion was based on her clinical history and medical probabilities that it was the injury she reported. He explained that “exacerbation” specifically means “making worse,” and that in the case of appellant, it was the stretching or straining of the bands surrounding the discs. He testified that in appellant’s situation, traumatic exacerbation referred specifically to the bringing on of symptoms by injury. He further testified that in his opinion appellant was temporarily totally disabled from performing her previous occupation. His prognosis was undetermined; that appellant would need further treatment in an effort to relieve her condition, and that unless she received this treatment, the longer the situation continued, the poorer the rehabilitative potential and in all probability she would end up unemployable and “on the road to welfare.” Dr. Cook also testified that he found “objective findings” regarding appellant’s back condition. He examined appellant a second time on April 20,1977, and found her condition basically unchanged. At the end of direct examination, Dr. Cook repeated his diagnosis as to the cause of appellant’s disability, “again based on the clinical history and entire evaluation it was the degenerative disc process with the traumatic exacerbation caused by the reported injury of June- 1975.” His definite opinions were repeated on cross-examination.

Now we come to the testimony of Dr. James Bass, which, as stated before, was the sole evidence presented by appellees. He testified that at the request of Dr. Alexander, the company physician, he examined appellant on August 18,1975, at which time she was complaining in the low-back area. She gave him the history of her fall in June, 1975. He testified that his diagnosis was that she had recovered from her injury and had no disability or physical trouble of any kind. On cross-examination Dr. Bass admitted that appellant had degenerative discs in her lower back as did all persons her age to some extent. He was asked his opinion as to aggravation of the disc condition by appellant’s fall. The answer was, “I don’t know whether it did or not. It could.”

On cross-examination, a letter dictated August 18, 1975, by Dr. Bass to Dr. Alexander was introduced in which Dr. Bass stated, “she is tender in the lumbo-sacral spine.” Also introduced on cross-examination was an insurance company report bearing Dr. Bass’ signature, and the date of September 5, 1975. Under the question, “Give accurate description of nature and extent of injury and state your findings,” there was typed the answer, “Pain, low back.” Under the question, “Will the injury result in permanent defect?” there was typed the word, “Undetermined.” Under the request for information styled, “Describe treatment given by you,” there was typed the words, “Conservative treatment.”

The administrative judge found that “the medical evidence in this cause establishes that the claimant suffered from a pre-exist-ing disease, lesion or handicap, which is the sole cause of the present disability suffered by claimant, if any.” The Commission, on application for review, held that this finding was correct and based this affirmance on the testimony of Dr. Bass. The opinion stated, “In affirming, the full commission notes that Dr. Bass was the primary treating physician and that as such, he was afforded the benefit of the initial examination at this critical time.”

From the foregoing discussion of the record, it is obvious that this statement is erroneous. Appellant was placed under the care of the company physician, Dr. Alexander, the day after her fall, or on June 4, 1975. He treated her for several weeks before being informed that no further treatment would be paid for by the insurance carrier. Dr. Bass only saw claimant one time, August 18, 1975, some ten weeks after her injury. It is of interest to stop here and note that although the administrative judge and the Commission found that appellant’s disability of any kind stopped on August 18, 1975, when she was seen by Dr. Bass, the original answer filed by appellees stated that she was disabled through September 16,1975, and compensation was paid to appellant through that date, which was approximately a month after the finding of fact that her disability ceased.

This Court has stated on many occasions its standards for review of compensation cases. In Central Electric Power Association v. Hicks, 236 Miss. 378, 110 So.2d 351 (1959), we said:

The general rule is that a decision of the commission on disputed issues of fact will be affirmed, where there is substantial and reasonable evidence in the record to support the commission’s findings of fact. As an abstract statement, that rule is correct, but it means nothing apart from the statutory standards and the judicial standards based upon the statute which has been established in a large number of cases in recent years. These standards always consist of two parts, one defining the type of questions the administrative determination of which is binding upon the courts, and another which defines the type of questions that are reviewable by the courts. But either part is and should be sufficiently flexible to permit the court to check any fundamentally erroneous exercise of administrative power. And questions of fundamental importance are always open to judicial review. There must be an application of the pertinent statute in a just and reasonable manner.
[W]e hold that judicial review of findings of the Commission extends to a determination of whether they are clearly erroneous. And a finding is clearly erroneous when, although there is some slight evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made by the Commission in its findings of fact and in its application of the Act. (Citations omitted).

See also Lucedale Veneer Company v. Rogers, 211 Miss. 613, 48 So.2d 148, 53 So.2d 69 (1950); Universal Manufacturing Co. v. Barlow, 260 So.2d 827 (Miss.1972).

There is no need to cite from the many opinions of this Court holding that the compensation statutes should be given a liberal construction and doubtful cases should be resolved in favor of compensation. King v. Westinghouse Electric Corp., 229 Miss. 830, 92 So.2d 209 (1957); Lindsey v. Ingals Shipbuilding Corp., 219 Miss. 437, 68 So.2d 872 (1954); National Surety Corp. v. Kemp, 217 Miss. 537, 64 So.2d 723 (1953); Deemer Lumber Co. v. Hamilton, 211 Miss. 673, 52 So.2d 634 (1951).

There is another point that needs to be made in this case. As hereinbefore stated, the hearing officer and the commission as affirmed by the circuit court held that claimant’s disability was solely the result of a preexisting disease, lesion or handicap. In Universal Manufacturing Co. v. Barlow, 260 So.2d 827 (Miss.1972), the Court said the following:

It has been a predominate rule in the field of workmen’s compensation cases in this state for some time that where a workman had some preexisting infirmity which was dormant or inactive so that he was able to pursue the normal work requirement of his employment, but because of an injury resulting from the workman’s employment his dormant infirmity was lightened up or activated so that the injury and the infirmity combined together to cause him to become totally or partially disabled, his disability was compensable. See the many cases cited by Dunn’s Mississippi Workmen’s Compensation, 2d Ed. section 94, p. 124 (1967).

In Bolton v. Catalytic Construction Co., 309 So.2d 167 (Miss.1975), the Court said:

It is without question that appellant was able to perform heavy labor involving twisting, bending and stooping up to the date of his injury in spite of the congenital anomaly which consisted of an extra lumbar vertebra.
Where one enjoys functional ability to perform his work in spite of an existing congenital defect and suffers an injury which aggravates the existing congenital defect, thereafter causing a loss of functional ability, then as long as the functional loss continues the corollary to the Rathbone [237 Miss. 588, 115 So.2d 674] rule will not apply as a bar to compensation. Simply stated, when an injury causes loss of functional ability, it is com-pensable.

See also M. T. Reed Construction Co. v. Garrett, 249 Miss. 892, 164 So.2d 476 (1974).

In the case of Weaver Pants Company and Employer’s Mutual of Wausau v. Duncan, 231 So.2d 489 (Miss.1970), the case involved a traumatic aggravation of a pre-ex-isting degenerative disc. The Court specifically held that “[t]he apportionment statute was not intended to cover those normal degenerative effects accompanying age.” It was stated there that the “apportionment statute provides for same in cases of physical handicaps, disease, or lesion. Normal degenerative actions accompanying age cannot be classified as a ‘disease.’ The evidence failed to show any handicap or lesion.” See also Riverside of Marks and Travelers Insurance Co. v. Russell, 324 So.2d 759 (Miss.1975).

There is no evidence whatever that appellant had any type of physical trouble with her back prior to her injury of June 3, 1975, after working for employer/company almost twenty-one years. At most, appellant’s disability was the traumatic exacerbation of a normal degenerative condition. There is no evidence in the record to show that she had a condition at the time of her fall that could be classed as a “handicap or lesion.” As stated in Weaver, supra, she certainly did not have a “disease.”

In our opinion, the finding of the administrative judge, as affirmed by the Commission and the circuit court, was not based on substantial evidence as shown by the record and the cause should be reversed and remanded to the Commission for further hearing to determine the extent of appellant’s disability, whether temporary or total, and other benefits to which appellant may be entitled, including penalties, if any.

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE and COFER, JJ., concur.


source: Caselaw Access Project

author: SUGG, Justice,

license: Public Domain

text:
    Marie Falks MOORE v. James David MOORE.
    No. 51177.
    Supreme Court of Mississippi.
    May 23, 1979.
    As Corrected On Denial Of Rehearing July 18, 1979.
    Robert M. Winstead, Jackson, for appellant.

      Lee B. Agnew, Jr., Jackson, for appellee.
    Before ROBERTSON, SUGG and LEE, JJ.
   SUGG, Justice,

for the Court:

Marie Falks Moore and James David Moore were divorced December 18, 1972, and entered into an agreement for Mrs. Moore to have custody of their five minor children. The agreement for support provided: “The husband shall, until this agreement is ordered to be modified by the Chancery Court of the First Judicial District of Hinds County, Mississippi, pay unto the wife as child support for the support of the said children, the total sum of $75.00 per week.” The custody and support agreement was incorporated into and made a part of the final decree.

Following the rendition of the final decree, Moore paid $75 per week through the payment due April 23, 1975. From April 30, 1975 to October 21, 1976, he paid only $50 per week. Then from October 28, 1976 to November 4, 1977, he made varying payments of $25 or more, but very often he made nO payments at all. Moore was delinquent for support payments in the total amount of $5100.

Petitions to cite Moore for contempt were filed by Mrs. Moore on June 2, 1976 and December 14, 1976, for the child support in arrears. No hearing was held until after a petition and writ of sequestration was filed on November 28, 1978. Mrs. Moore amended the petition for writ of sequestration to incorporate the first two contempt petitions and further prayed for legal interest and reasonable attorneys’ fees. Moore answered the amendment to petition for writ of sequestration by denial of the allegations, and affirmatively alleged that he altered the child support payments in accordance with each change in circumstances, namely, when the children became independent, self-supporting or lived with him.

A decree was rendered dismissing with prejudice the petition for contempt, the petition for writ of sequestration, and the amendment to the petition for writ of sequestration. The chancellor determined that the $75 per week child support was subject to a subsequent pro-rata reduction as each child became emancipated and when ■a child was in the physical custody of Moore. On the basis of that determination the chancellor concluded that Moore was not in arrears in his child support payments. From this decision, Mrs. Moore has appealed, assigning the following as error:

(1) The trial court erred in failing to find Mr. Moore in contempt of court for failure to pay the agreed lump sum support amount of $75 per week.

(2) The trial court erred in failing to award judgment for the appellant in the sum of $5,100 plus interest at eight percent and attorneys’ fees of $1,170.’

This case presents the question of whether the emancipation of one or more of the children authorized the father to reduce the child support payments pro-rata without first securing a modification of the decree.

We find no Mississippi cases on this question but other states have decided the question. See Eaglin v. Eaglin, 306 So.2d 375 (La.App.1974); Guthrie v. Guthrie, 429 S.W.2d 32 (Ky.1968); Delevett v, Delevett, 156 Conn. 1, 238 A.2d 402 (1968), and cases cited in Delevett; Taylor v. Taylor, 147 Colo. 140, 362 P.2d 1027 (1961).

The above cases are persuasive and announce the following rule: when a parent is ordered to pay a specified amount periodically for the benefit of more than one child, the emancipation of one child does not automatically reduce the liability of the parent for the full amount. We adopt the rule for three reasons.

First, the allowance was $75 per week for the family group and did not provide for an allowance of $15 per week for each child. Perhaps the judgment contemplated that a base amount would be required regardless of the number of children with an undetermined amount for each child being included in the $75 weekly allowance.

Second, a child support order is not based solely on the needs of the minor children, but takes into account the ability of a parent to pay child support. Consequently, a child support order may not accurately reflect the amount actually required for the support of children, but may reflect only the amount a parent can afford to pay. Allowing an automatic reduction of an undivided order would ignore the realities of such a situation.

Third, considering an undivided child support order as equally divisible among the children overlooks the possibility that the requirements of the individual children may very widely, depending on the circumstances of each child.

Mrs. Moore also contends that the chancellor erred by not allowing attorneys’ fees on her contempt citation. We agree for the reasons stated in Pearson v. Hatcher, 279 So.2d 654 (Miss.1973). In Pearson we held that default in child support payments, although not accompanied by a finding of contempt because of present inability to pay, or for other reasons, attorneys’ fees are the responsibility of the person required to make the child support payments. Otherwise, the responsibility of support would be reduced by the amount the party seeking to enforce the decree would be required to pay an attorney to enforce the decree. The uncontroverted proof is that Mrs. Moore incurred attorneys’ fees in the amount of $1,170. We allow this amount as attorneys’ fees.

We therefore reverse the chancellor, and hold that Mr. Moore is due Mrs. Moore $5100 child support payments plus $1,170 attorneys’ fees. We do not allow interest because the amount of the interest was not computed by Mrs. Moore and would involve a complicated mathematical computation which we decline to make.

The parties owned a house and lot which was sold with the net proceeds being held by the attorney for Moore, subject to the writ of sequestration. Mrs. Moore was advanced $1500 against her equity in the net proceeds. We remand for entry of a decree which shall: (1) reinstate the writ of sequestration, (2) provide for payment to Mrs. Moore of the balance of her equity in the net proceeds from the sale of the house and lot after reimbursing Moore the $1500 advanced to Mrs. Moore against her share of the net proceeds, (3) allow Mrs. Moore $5100 delinquent child support, and $1,170 attorneys’ fees, and (4) provide for disbursement of the balance remaining to Moore.

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


author: ROBERTSON, Presiding Justice,

text:
    Dewayne Roger SINGLETON, a minor, by and through his Mother and next friend, Regina Garrett v. Johnny Ray WILEY, a minor.
    No. 51186.
    Supreme Court of Mississippi.
    May 23, 1979.
    Rehearing Denied July 18, 1979.

      Zucearo, Riley, Pintard & Brown, J. Walter Brown, Jr., Edwin E. Kerstine, Natchez, for appellant.
    Gwin & Gwin, Wise Carter Child Steen & Caraway, Jerome B. Steen, Edward J. Cur-rie, Jr., Margaret A. Hegman, Jackson, for appellee.
    Before ROBERTSON, LEE and BOWLING, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

Dewayne Roger Singleton, a minor, through his mother and next friend, Regina Garrett, brought suit against Johnny Ray Wiley, also a minor, in the Circuit Court of Adams County, for injuries sustained by him when he fell off of the trunk compartment of Wiley’s car.

After a full trial, the jury returned a verdict for the defendant, and judgment was entered thereon. Although the appellant has assigned four errors which he contends were committed by the trial court, the litigants agree that the principal assignment of error, upon which the case must stand or fall, was the granting of both comparative negligence and assumption of risk instructions.

Not being able to start his car after band practice on March 11, 1976, at the North Natchez High School, Wiley asked those who rode with him, including Singleton, to push him off. It was necessary to first push Wiley’s car around to head it down the driveway. This was done on the gravel portion of the driveway. Singleton testified that, after they had gotten the car turned around, he was pushing the car with his back to the rear of the car; that as the car moved from the graveled portion to the sloping paved portion the car seemed to jerk forward and start; that his elbow got stuck between the rear bumper and the body of the car, and he was pulled off balance.

When he freed his elbow, he was still off-balance, so, according to Singleton, he attempted to keep his back pressed against the trunk and somehow got up on the back of the car, that he hollered to Wiley to “hold up” but that Wiley merely grinned at him and continued on down the hill, that when Wiley got to the bottom of the hill he turned sharply to the right on Triumph Lane Street, and he [Singleton] was thrown off and hit his head on the pavement. Singleton was treated by Dr. Jerry lies of Natchez, and Dr. Orlando J. Andy of the University Hospital in Jackson. Dr. Andy testified that the principal injury was the loss of the sense of taste and smell, which, according to Singleton, hindered him in his laboratory work as a student at the University of Southern Mississippi.

Richard Brooks and Jonathan Grennell testified that all the other boys stopped pushing at the top of the hill, but that Singleton jumped on the back of the defendant’s car in a spirit of fun and rode down the hill. Both witnesses testified that Singleton did not catch his elbow or any part of his clothing on the car, and that they did not hear anybody call to Wiley to stop the car, and that as he got to the bottom of the hill Singleton attempted to jump off but lost his balance and fell on his head.

Singleton called Vernon L. Green in rebuttal. He testified that Singleton was pushing with his back to the car, that he stumbled and caught his balance on the back of the car, and that he [Green] heard Singleton holler “hold up”. Green could not say whether Wiley heard Singleton.

A picture of the rear of the car was introduced and Wiley testified that he could only get his fingers up to the second knuckle between the rear bumper and the trunk. Wiley did not hear anybody holler and did not look back. He was listening for the whine of the clutch to tell when to release it and start the engine.

Plaintiff contends that Defendant’s instruction D-13 is peremptory in nature and does not provide sufficient guidelines to the jury to weigh the negligence of both parties. D-13 recites:

The Court instructs the jury that if you find from a preponderance of the evidence in this case that the plaintiff, Dewayne Roger Singleton, after pushing the defendant’s automobile so as to start the automobile rolling down the driveway in question, deliberately and voluntarily jumped onto the back of the automobile as it was rolling down the driveway in question, then the Court instructs you that the plaintiff was guilty of negligence, and if you further find from a preponderance of the evidence that such negligence, if any, was the sole proximate cause of the accident in question, then it is your sworn duty to return a verdict for the defendant, Johnny Ray Wiley.

We think that the giving of this instruction was justified by the evidence adduced and the jury was properly instructed that only if they found from a preponderance of the evidence “that such negligence, if any, was the sole proximate cause of the accident” could they return a verdict for the defendant.

This is one of those rare cases where the doctrines of comparative negligence and assumption of risk appear to overlap, and where instructions on both could be given.

Appellant also complains of instruction D-15:

The Court instructs the jury that the assumption of the risk doctrine applies when a person voluntarily and knowingly places himself in a position or submits himself to a condition, appreciating that injury to himself on account thereof is likely to occur at any time so long as such condition or position continues. Should you believe from a preponderance of the evidence in this case that the plaintiff, Dewayne Roger Singleton, voluntarily placed himself in a position of danger by voluntarily jumping onto the back of a moving automobile being operated by the defendant and notwithstanding such awareness appreciated that injury to himself was likely to occur at any time, then your verdict must be for the defendant, Johnny Ray Wiley.

Appellant’s principal criticism of D-15 is that it does not contain the three key elements requisite for the imposition of the assumption of risk doctrine. In Alley v. Praschak Machine Company, 366 So.2d 661 (Miss.1979), in discussing an assumption of risk instruction, this Court said:

“Three (3) essentials must appear in the doctrine of assumption of risk. They are stated in Elias v. New Laurel Radio Station, Inc., 245 Miss. 170, 146 So.2d 558 (1962), as follows:
‘The elements which must be found in order to constitute a defense of assumption of risk are generally stated in some such terms as the following: (1) Knowledge on the part of the injured party of a condition inconsistent with his safety; (2) appreciation by the injured party of the danger of the condition; and (3) a deliberate and voluntary choice on the part of the injured party to expose his person to that danger in such a manner as to register assent on the continuance of the dangerous condition.’ 245 Miss, at 179, 146 So.2d at 561-562.

In Braswell v. Economy Supply Company, 281 So.2d 669 (Miss.1973), the Court discussed knowledge and appreciation of assumption of risk, and, citing 57 Am. Jur.2d Negligence § 282 (1971) said:

‘Where the facts are such that the plaintiff must have had knowledge of the hazard, the situation is equivalent to actual knowledge and there may be assumption of the risk. In some cases the circumstances may show as a matter of law that the risk was understood and appreciated, and often they may present in that particular a question of fact for the jury. Also, the plaintiff may not close his eyes to obvious dangers, and cannot recover where he was in possession of fact from which he would be legally charged with appreciation of the danger.’ 281 So.2d at 674-675.” 366 So.2d at 664.

In Braswell, supra, this Court had this to say about our comparative negligence statute and its effect on the doctrine of assumption of risk:

“Since our comparative negligence statute (Section 1454 Mississippi Code 1942 Annotated) was first adopted in 1910, the doctrine of assumption of risk has been recognized in some cases as a bar to an action by plaintiff and is deeply ingrained in the law of this state. However, the doctrine has been limited and restricted so that the application of the doctrines of assumption of risk and of contributory negligence to a particular factual situation poses a perplexing question, and where the two overlap and coincide, the absence of a definitive rule magnifies the problem.” 281 So.2d at 673.

However, in Braswell, we did go on to say:

“The doctrine of assumption of risk was properly applied to the unusual facts of this case and it represents one of the rare instances where it is applicable.” 281 So.2d at 675.

In Yarbrough v. Phipps, 285 So.2d 788 (Miss.1973), this Court had this to say about an assumption of risk instruction:

“The instruction should seldom be employed except where the plaintiff’s conduct is venturous . . ”. 285 So.2d at 790.

We feel that the jury could have concluded from the evidence adduced in the case at bar that this 18 year old high school student did voluntarily and knowingly jump on the back of a moving car in a spirit of fun and venturousness while the driver was looking ahead and concentrating on starting the car, and that plaintiff’s negligence was thus the sole proximate cause of his injuries.

Appellant secured two strong instructions [P-6 and P-10] on contributory negligence. That was appellant’s theory of his case. Appellee presented his theory of the case in Instructions D-13 and D-15, his theory being that if the negligence of the appellant was “the sole proximate cause of the accident in question” then it was the duty of the jury to return a verdict for the defendant.

We feel that considering all of the instructions together, both those for the Plaintiff and those for the Defendant, that the jury was properly and fully instructed, and furnished sufficient guidelines to properly decide the questions submitted to them.

Inasmuch as this case involved factual questions for the jury to resolve and inasmuch as the jury was properly instructed as to the law, we are of the opinion that the judgment of the trial court based on the jury verdict should be affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


text:
    C. R. SUGGS v. CITY OF ABERDEEN.
    No. 51210.
    Supreme Court of Mississippi.
    May 23, 1979.
    Rehearing Denied July 11, 1979.
    Michael D. Jonas, Aberdeen, for appellant.
    Houston, Chamberlin & Houston, David W. Houston, III, Aberdeen, for appellee.
   Appeal from Chancery Court, Monroe County; George F. Adams, Chancellor.

Before PATTERSON, C. J., and BROOM and BOWLING, JJ.

AFFIRMED.


author: BROOM, Justice, PATTERSON, Chief Justice,

text:
    Bobby Louis SANFORD v. STATE of Mississippi.
    No. 50894.
    Supreme Court of Mississippi.
    May 30, 1979.
    Walls & Buck, Robert E. Buck, Green-ville, for appellant.
    A. F. Summer, Atty. Gen., by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
   BROOM, Justice,

for the Court:

Forcible rape is the crime for which Bobby Louis Sanford was convicted in the Circuit Court of Yalobusha County. He appeals from a sentence of fifty years imprisonment, and bases his argument in the main on the trial court’s rejection of his requested “alibi” jury instruction. We affirm.

David Thorpe and his eighteen-year-old female companion (prosecutrix herein), both of Wisconsin, entered this state on June 12, 1976, en route to Keesler Field for a visit with the prosecutrix’s sisters. The day’s motorcycle trip was to terminate in a camping area at Enid Dam Park in Yalobusha County. At about 9:15-9:30 p. m., the cou-pie stopped at a rest area off of Interstate Highway 55 to examine a map. While there, a car occupied by her soon-to-be attackers passed through the area, according to prosecutrix. Satisfied with their directions, the couple proceeded to the park, only to find that motorcycles were not permitted. Thorpe pulled his motorcycle alongside the road to permit a car behind him to pass when a second car appeared, a door swung open, the motorcycle fell and Thorpe tumbled down an embankment.

The occupants of the automobile directed the two motorcyclists into its back seat at gunpoint where they were forced to keep their heads down while the car was driven an unspecified distance before turning onto a gravel road where it was stopped. Next the car occupants ordered the couple out of the car and robbed them. The prosecutrix was taken a short distance from the car and Thorpe was again forced to its back seat. Then the car was moved forward a short distance, and Thorpe was • able to turn around and view his companion standing nude from the waist down with one man kneeling beside her. He was then put into the trunk of the car, but heard her cries and male voices for about twenty minutes.

Testimony of the prosecutrix was that when the car first stopped, two of the men walked her down the road and partially undressed her. She was then carried to a field while pleading with them that they could obtain another girl and that she was on her honeymoon. Her pitiful pleading went unheeded, and she was raped by each of the four occupants of the automobile. Afterward she was permitted to dress and was returned to the vicinity of Thorpe where they were required to lie face down on the ground as the automobile departed. Immediately afterward they walked some distance to a dwelling where law enforcement officers were called. Meanwhile, the abandoned motorcycle had drawn official attention. Around 11:00 p. m. Henry Gray of the Yalobusha County Sheriff’s Department responded to a call and met the park officials at the motorcycle’s location. Shortly thereafter a park ranger radioed that the missing owners were at a nearby cabin. After conversing, Officer Gray, Thorpe and the prosecutrix drove around and located the scene of the crime. Afterward she was taken to the county hospital where Dr. Harold Sexton performed a pelvic examination at about 2:15 on the morning of June 13, 1976. He found male spermatozoa, some dirt and a few abrasions on her hips and buttocks.

When first interviewed after being taken into custody July 2, 1976, Sanford (then seventeen years old) denied any involvement in the rape. However, upon a second interview, he orally confessed to Sheriff Jones of Yalobusha County, Sheriff Bryan of Panola County and Deputy Sheriff Rudd, in the presence of his mother, that he was the first of the four to rape prosecutrix. Thereafter he led officers to the couple’s stolen motorcycle helmets which had been concealed. Sanford’s confession, admitted into evidence after a lengthy suppression hearing, is the only testimony linking him to the crime. The remainder of the state’s evidence focuses upon the establishment of the crime of rape, the time and place of its occurrence, and the corpus delicti essentials.

At trial Sanford denied having waived his Miranda rights, denied the confession, and denied that he directed the officers to the motorcycle helmets. His testimony was that he resided in his mother’s home and was there the entirety of June 12,1976. He testified that he arose at 8:30 a. m., had breakfast, cut the lawn, watched television and about 4:30 in the afternoon worked with his mother and sisters in their garden until approximately 7:30 or 8:30. Afterward he called his girl friend at about 9:20 p. m. and, because his car was in the shop, remained at home with his family, ultimately retiring at about 10:30 or 10:35. His mother did not observe the appellant retire, but maintained that he was at home when she returned at about 10:30. Sanford’s sister, Emma Jean, testified he was at home the entire evening and retired about 11:00 or 11:30. Neither Thorpe nor the prosecu-trix could identify Sanford as one of the rapists although they did describe their assailants as young black males.

After the jury found Sanford guilty, he was sentenced to fifty years imprisonment. Here he argues as grounds for reversal two errors: (1) refusal of the trial court to grant a requested alibi instruction, and (2) the overruling of Sanford’s motion to suppress the confession. We address these propositions in reverse order.

WAS THE CONFESSION ERRONEOUSLY ALLOWED INTO EVIDENCE?

Although the testimony about the confession was in conflict, the trial court found from abundant evidence that Sanford was appropriately advised of his rights and that he confessed knowledgeably without threats, coercion or improper inducements. Moreover, all of the officers who participated in the interrogation gave testimony to its voluntariness in accord with Agee v. State, 185 So.2d 671 (Miss.1966), and its progeny. The voluntariness was contradicted by Sanford and his mother, but we have long held that such contradictory evidence presents a question of fact to be determined by the trial court. We have consistently held in such cases that upon review this Court will not disturb the trial court’s finding unless it appears to be contrary to the evidence. Clemons v. State, 316 So.2d 252 (Miss.1975); Harrison v. State, 285 So.2d 889 (Miss.1973); and Ivey v. State, 246 Miss. 117, 149 So.2d 520 (1963). Our opinion is that admitting the confession was not error because ample evidence supported the trial court’s determination.

WAS THE ALIBI JURY INSTRUCTION ERRONEOUSLY REJECTED?

“Alibi” was Sanford’s sole defense, other than objecting to the confession. His testimony and that of his mother and sister we have previously summarized, supra. Pursuant to his alibi defense, Sanford requested Instruction D-7, the language of which and accompanying colloquy follow:

The Court instructs the jury that if you believe from the evidence that on June 12,1976 that Bobby Sanford was at home in the presence of his mother and sister, then you must return a verdict of Not Guilty.

The district attorney objected, stating:

I object to D-7 because it’s misleading to the Jury. The instruction says if they believe that he was at home at any time on June 12, 1976, he should be found not guilty, and the State has proved that this alleged act occurred at night time, so it’s misleading to the Jury. He could have been home any time that day and still committed the crime.
COUNSEL FOR DEFENDANT (Mr. Kelly): I’ll put in the time, Your Honor.
THE DISTRICT ATTORNEY (Mr. Chat-ham): I believe this instruction is for an alibi defense.
COUNSEL FOR DEFENDANT (Mr. Kelly): Your Honor, for the record, Defendant moved [sic] the Court to permit him to amend Instruction D-7 to include the times of from 9:30 p. m. on June 12, 1976 until 2:15 a. m. on June 13, 1976.
THE COURT: And there’s not one scintilla of proof in that regard. The only thing we have in this record is that Mama went to bed at 10:30, a [sic] minutes after 10:35, right after the news. One sister went at 11:30 — he went to bed about 11:30, and on§ sister, I believe she said she was still up at that time. There is no proof as to any other time he was there or anything else. And the Court will refuse that instruction.

“Alibi” as a defense is well established in our criminal jurisprudence. We have held many times that alibi testimony, if believed by the jury when considered along with all the other evidence, requires acquittal. Without question, one who interposes an alibi as the theory of his defense, and presents testimony in support of such a plea, is entitled to a jury instruction focusing upon such a theory. Here there is no indication that Sanford’s counsel was not permitted to orally argue the “alibi” during the course of his jury argument made after all the testimony concluded. Although such an argument may have been made, we cannot be certain inasmuch as the record contains no transcript of closing jury arguments. We think it appropriate to state here that in trials of criminal cases (more especially for felonies) presiding judges may (and must if requested) require that jury arguments be made part of the record. Then on appeal, either side in the interest of justice may designate placing a transcription of the jury arguments in the record to be presented to us.

Instruction D-7, as initially requested was improper for several reasons. Not only is it (as originally worded) peremptory in form, requiring acquittal in the event the jury should believe that the appellant Sanford was at home any instant of the daylight or dark hours of June 12, 1976, but it was also clearly improper for failing to limit (to any particular time frame or to daylight or dark hours of June 12, 1976) the appellant’s being at home. Further, the instruction is improper in that it should have directed the jury to base its finding not only upon that portion of the evidence dealing with appellant’s alibi, but it should have told the jury to consider his alibi evidence along with “all the other evidence in the case.” 23A C.J.S. Criminal Law § 1204 (1961) at 527-529. The rule is as stated in 1 Wharton’s Criminal Law Evidence § 23, pages 42-43 [13th Ed., Torcia, (1972)]:

All the evidence in the case is to be considered together.

The converse rule is stated under the same section of Wharton’s work to be that:

[T]he fact finder cannot acquit the defendant on the ground that the alibi evidence considered by itself raises a “reasonable” doubt.

When the trial court announced tha.t it would not grant the requested instruction, defense counsel moved the court to “permit him to amend Instruction D-7 to include the times of from 9:30 p. m. on June 12, 1976 until 2:15 a. m. on June 13, 1976.” Consideration of the proposed amendment to D-7 must be done in the light of testimony which pertained to Sanford’s alibi defense. According to him, he retired between 10:30 and 10:35 on the evening of the crime. His mother testified that she watched the news and went to bed at about 10:30 p. m., not knowing when her son went to bed. Sanford’s sister testified that she was still up when he went to bed a little before 11:00 or 11:30 of the evening of the offense. Nowhere in the record do we find any testimony that Sanford was “in the presence of” or in the same room with his mother and sister at any time whatever after he went to bed oh the night of the offense. Three people in three separate rooms of a certain residence could hardly be said to be in the presence of each other, and hardly could there be drawn any conclusion or inference that none of the three exited the house unknown to the others. Both in its original form and with the proposed amendment, D-7 contains language not only that the appellant “was at home” but that he “was at home in the presence of his mother and sister."

The court’s rejection of the proposed instruction as originally submitted in handwriting (obviously, it was hastily drawn rather than prepared in advance of the trial), and then its rejection of the proposed amendment which was sought by an oral motion made at the time the court was considering all of the requested instructions, does not require reversal. ..Clearly there was no evidence that Sanford throughout all the night was “in the presence of his mother and sister,” thus the instruction lacks evidentiary support. Further, as we pointed out above, the instruction seems to focus and comment upon only the alibi testimony in isolation from the rest of the evidence, rather than being considered “together with all the [rest of the] evidence.” Additionally, we note that there was testimony indicating that the offense may not have occurred within the time frame between “9:30 p. m. . . . until 2:15 a. m.” but prior to 9:30. Indeed, witness David Thorpe’s testimony may be construed to fix the time as prior to 9:30 p. m. on June 12, 1976.

The trial judge’s statement in the record (made when, defense counsel sought permission to amend Instruction D-7) that “there’s not one scintilla of proof in that regard” is not entirely accurate, because the defense had presented testimony at least raising some suggestion (though not with certainty) that Sanford was at home while his mother and sister were also there. However, the judge was not entirely in error as to his recollection of the evidence, because he referred to evidence that “Mama went to bed at 10:30” and “sister went at 11:30.” In our view, neither af-firmance nor reversal may logically rest upon whether or not a trial judge possesses an infallible memory as to all the evidentia-ry minutiae presented during a trial. Here the critical issue is: Must the conviction be reversed because the trial judge rejected Instruction D-7 in both its original form and in the form as counsel sought to amend it? The answer is negative because, as initially requested and even after the proposed amendment, the instruction contained the erroneous language (unsupported by testimony) that “Sanford was at home in the presence of his mother and sister. . . ” The evidence presented by the defense, even if construed in his favor, shows only that the three (Sanford, his mother, and sister) retired for the night. No testimony indicated that they subsequently remained in the presence of each other.

We conclude that Sanford was given a fair trial, and the verdict is well supported by competent evidence. Accordingly, reversal is not warranted.

AFFIRMED.

SMITH, ROBERTSON, P. JJ., and SUGG, WALKER and LEE, JJ., concur.

PATTERSON, C. J., and BOWLING, J., dissent.

COFER, J., takes no part.

PATTERSON, Chief Justice,

dissenting:

With deference I dissent to that part of the majority opinion concerning the alibi instruction.

As mentioned, Sanford’s sole defense other than contending he did not confess, was an alibi. His testimony and that of his mother and sister have been summarized in the majority opinion. In furtherance of this defense and in accord with the testimony, he requested Instruction D-7. The instruction and discussion about it are repeated:

The Court instructs the jury that if you believe from the evidence that on June 12,1976 that Bobby Sanford was at home in the presence of his mother and sister, then you must return a verdict of Not Guilty.

The district attorney objected, stating:

I object to D-7 because it’s misleading to the Jury. The instruction says if they believe that he was at home at any time on June 12, 1976, he should be found not guilty, and the. State has proved that this alleged act occurred at night time, so it’s misleading to the Jury. He could have been home any time that day and still committed the crime.
COUNSEL FOR DEFENDANT (Mr. Kelly): I’ll put in the time, Your Honor.
THE DISTRICT ATTORNEY (Mr. Chat-ham): I believe this instruction is for an alibi defense.
COUNSEL FOR DEFENDANT (Mr. Kelly): Your Honor, for the record, Defend-artt moves the Court to permit him to amend Instruction D-7 to include the times of from 9:30 p. m. on June 12, 1976 until 2:15 a. m. on June 13, 1976.
THE COURT: And there’s not one scintilla of proof in that regard. The only thing we have in this record is that Mama went to bed at 10:30, a (sic) minutes after 10:35, right after the news. One sister went at 11:30 — he went to bed about 11:30, and one sister. I believe she said she was still up at that time. There is no proof as to any other time he was there or anything else. And the Court will refuse that instruction.

The defense of an alibi is well established in our jurisprudence. The testimony concerning such, if believed by the jury, when considered with all of the other evidence, is valid to establish innocence or to cast a reasonable doubt upon guilt, requiring an acquittal. Kennedy v. State, 278 So.2d 404 (Miss.1973); Kelly v. State, 239 Miss. 683, 124 So.2d 840 (1960); and Newton v. State, 229 Miss. 267, 90 So.2d 375 (1956).

I agree the alibi instruction as presented to the trial judge was improper and therefore correctly refused because it was not limited to the approximate time of the crime. It might be subject to some criticism as not directing the jury’s attention to “all the other evidence” which probably would have made it more specific. However, the language used, “if you believe from the evidence,” is not such a departure from “all the evidence” to make the instruction erroneous because it induces the jury to consider only a part of the evidence or the evidence of a particular witness. Nichols v. State, 27 Ala.App. 435, 173 So. 652 (1937). In my opinion this criticism of the instruction and the offer to amend is more technical than realistic. Moreover, the trial court did not reject the instruction for that reason but rather did so in accord with the state’s objection that it was not limited to the probable time of the crime. At least the defense attorney thought so because he offered to amend in accord with the district attorney’s objection upon time which provoked the court to retort: “There is not one scintilla of proof in that regard,” and the instruction was refused.

Unfortunately, the record reveals the trial court erred in its recollection of the evidence. There was testimony of three witnesses, the defendant, his mother, and sister, surely more than a scintilla as referred to by the trial judge and probably more than “evidentiary minutiae,” as stated by this Court, that appellant was at his mother’s home, his residence, at the time the rape occurred which was, as best we can determine, sometime between shortly after 9:30 p. m. and 11:00 p. m. or very soon thereafter, when the officers' were notified the victims had sought assistance at a nearby dwelling.

The court, in my opinion, erred in refusing the amendment because there was evidence to support it and because our procedures permit it. The question is not whether the amendment, if permitted, would have conformed the instruction to other niceties of the law, now argued but not then presented, but rather that an offer to amend it to a more exact time was made and refused. The defendant’s attorney when faced with the court’s statement in denying it, that there was no evidence, “not a scintilla,” was left with no logical choice but to proceed with the trial without the alibi instruction essential to his client’s defense.

Whether the court permitted the defense attorney to orally argue the alibi to the jury, although the court thought there was not a scintilla of testimony in that regard, is, of course, pure surmise. By conjecturing such argument was permitted and made, I nevertheless think it does not have, and should not have, the potential of replacing a court’s instruction to the jury upon the applicable law, and this whether or not the attorney’s argument is recorded.

It is also my opinion that refining the instruction, to support its rejection, to the defendant’s being in the same room with either his mother or his sister at all critical times, simply ignores his presence, albeit constructive, in another room of the house at intervals where his presence and activities would reasonably have been known and heard by others. I think technically construing the word “presence” to mean within the vision of, lends little justification to its rejection. In Walters, et a1. v. State, 218 Miss. 166, 65 So.2d 465 (1953), in citing from Wharton’s Criminal Law, Vol. 1, p. 341, par. 256, we stated: “ ‘Nor is it necessary that the party should be actually present, an ear or eyewitness of the transaction, in order to make him principal in the second degree; . .. 218 Miss. at 172, 65 So.2d at 468. Although this case goes on, as does the citation, to base an affirmance upon intent in addition to presence, nevertheless it does point out that presence does not necessarily mean within the same building or within vision. Indeed, the Supreme Court of Minnesota in London v. Maryland Casualty Co., 210 Minn. 581, 299 N.W. 193 (1941), a civil case, had this to say concerning the meaning of the word “presence” which might be presently appropriate because a case about a will was footnoted by the majority as authoritative although it concerned Mississippi Code Annotated section 657 (1942), the execution of wills. The statement follows:

Standing alone without qualifier or adjective, it must be conceded that the word “presence” is very general in reference. One lexicographer has said that presence is the “act, fact or state * * * of being in a certain place and not elsewhere, or * * *. within sight or call, at hand, or in some place that is being thought of.” Webster’s New International Dictionary, 2 Ed., 1935. Clearly, plaintiff would be the beneficiary of this language. In law it is probable that different conceptions of “presence” will exist for different purposes. Thus what constitutes the presence of an officer at the commission of a crime for purpose of authorizing arrest without a warrant (see Miles v. State, 30 Okl.Cr. 302, 236 P. 57, 44 A.L.R. 129; Agnello v. United States, 2 Cir., 290 F. 671) is likely to be wholly dissimilar from that presence required of attesting witnesses to a will. See In re Estate of Larson, 141 Minn. 373, 170 N.W. 348.

(210 Minn, at 584, 299 N.W. at 194) Although judges are prone to be academic over the meaning of words in support of giving or rejecting an instruction, I think the jury, composed of less technical persons, would have understood the ordinary meaning intended by the instruction as it related to the evidence and that is to say the defendant was at home with his mother and sister at the tirtie of the rape and therefore could not have been a participant in the crime which occurred elsewhere. At least, I think, they could have logically reached this conclusion if they believed the defendant’s evidence and had the benefit of the proffered instruction.

The more troublesome issue is whether the defendant was prejudiced by the trial court’s error. A confession is neither more nor less than testimony. When introduced into evidence, it is subject to being believed or disbelieved by a jury as any other testimony. The present confession, if believed by the jury, as it was, leaves no room for credibility in the alibi defense upon the present state of the record. However, the testimony of the defendant and his witnesses tending to place him at a different place from where the crime occurred, if properly presented, not only had the possibility of establishing that fact, but in doing so it also had the potential of placing doubt upon the confession. The two are inextricably linked; denying the alibi instruction had the likely, though not intended, effect of strengthening the confession because it was left standing alone.

I have difficulty, under the circumstances, in reasoning the refusal of the amendment to the instruction was harmless beyond a reasonable doubt. There was evidence to support it, it was authorized by law, and moreover, it totally deprived this appellant of his defense. I conclude the cause should be reversed for another trial since I am not convinced a crime, however despicable, should be permitted to thrust aside the procedures, evidence and instructions thereon, long thought necessary to a fair trial.

BOWLING, J., joins in this dissent.

      . This case is sequel to Caldwell and Market v. State, 364 So.2d 1123 (Miss.1978), wherein we affirmed another conviction for rape committed by two of Sanford’s companions on the occasion in question.

      . As to what constitutes being “in the presence of”, we held in Kelker v. Jordan, 228 Miss. 847, 89 So.2d 858 (1956), a case on execution of a will, that witnesses who signed the will in a room other than where the testator signed did not constitute signing “in the presence of” the testatrix.

      . Morgan v. State, Miss., 370 So.2d 231, is a recently decided case in which we declined to reverse for failure of the court to instruct the jury on presumption of innocence. We did reverse for another reason. Such an instruction was requested but the language of the .instruction, as is true of the instant case, was erroneously constructed.


author: SMITH, Presiding Justice, SUGG, Justice,

text:
    Gary Santaw TATRO v. STATE of Mississippi.
    No. 50907.
    Supreme Court of Mississippi.
    May 30, 1979.
    Rehearing Denied July 11, 1979.
    Fielding L. Wright, Jr., James H. Heidelberg, Pascagoula, for appellant.
    A. F. Summer, Atty. Gen., by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, SUGG and COFER, JJ.
   SMITH, Presiding Justice,

for the Court:

Gary Santaw Tatro was convicted of violating Mississippi Code Annotated section 97-5-23 (1972), which is sometimes referred to as the “Fondling Statute.” Following his conviction in the Circuit Court of Jackson County, Tatro was sentenced to serve eight years imprisonment. He has appealed, assigning as a- ground for reversal, among others, that the statute under which he was convicted unconstitutionally discriminates against males and is void for that reason.

The statute provides:

Any male person above the age of eighteen years, who for the purpose of gratifying his lust, or indulging his depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his body or any member thereof, any child under the age of fourteen years, with or without his consent, shall be guilty of a high crime

The statute provides for punishment extending to ten years imprisonment.

The statute applies not to “any” person, but only to “any male person” above eighteen years. It proscribes “handling, touching or rubbing with hands or any part of the body or member thereof any child (without regard to sex) under the age of fourteen years, (with or without the child’s consent) when done for the purpose of gratification of lust, or of indulging depraved licentious sexual desires.

The offense proscribed is not a common law offense. Love v. State, 211 Miss. 606, 52 So.2d 470 (1951).

In the recent case of Orr v. Orr, - U.S. -, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), a civil case, the United States Supreme Court, on finding an Alabama alimony statute unconstitutionally discriminated against men, observed:

. The fact that the classification expressly discriminates against men rather than women does not protect it from scrutiny. Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). “To withstand scrutiny” under the equal protection clause, “ ‘classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.’ ” Califano v. Webster, 430 U.S. 313, 316-317, 97 S.Ct. 1192, 1194, 51 L.Ed.2d 360 (1977). . . .

The Court also said:

Second, the challenged statute may saddle members of one sex with a burden not borne by similarly situated members of the other sex. Standing to attack such a statute lies in those who labor under its burden. .

Unquestionably women are as capable of performing the physical acts prohibited by the Mississippi “Fondling Statute” as are men, and for the same purposes. We are unable to conceive any sound or rational basis for making the statute applicable to “male” persons only, while wholly excluding “female” persons who may do the same thing for the same reasons, and none has been pointed out to us. Apparently, under the plain terms of the statute, female persons could commit the acts constituting the crime, for the purposes set forth in the statute, with absolute impunity, while a male, who did the same thing, would be subject to conviction of a felony and to imprisonment for a term of as much as ten years.

It is suggested that the reasons upon which the Court upheld the “Peeping Tom” statute in Green v. State, 270 So.2d 695 (1972), support the validity of the statute now under consideration. We are unable to agree.

No cogent reason is assigned for the patent discrimination against males, nor is it pointed out that such unequal treatment serves any traditional, governmental or public policy or is based upon a rational distinction based upon sex.

While no testimony seems to be necessary, Dr. Bridges, whose qualifications as an expert were stipulated, testified in this case that “from a psychological standpoint it is my opinion that a woman could be just as guilty of this offense as a man.”

An Oklahoma statute was held to have resulted in an unconstitutional denial of equal protection of law when it provided that seventeen year old male criminal defendants were to be prosecuted and sentenced as adults, whereas female defendants of like age were to be accorded the advantages of juvenile proceedings0. Radcliff v. Anderson, 509 F.2d 1093 (1974) certiorari denied 421 U.S. 939, 95 S.Ct. 1667, 44 L.Ed.2d 95 (1975).

In People v. Yocum, 31 Ill.App.3d 586, 335 N.E.2d 183 (1975), it was held that a sex-based distinction in criminal statutes is a “suspect classification” under the Bill of Rights and must be able to withstand strict judicial scrutiny to be valid. The Court held that inasmuch as sexual intercourse or act of deviate sexual conduct performed by a mother with an adopted son or stepson is not prohibited, but such acts are prohibited by the statute when performed between a father and his stepdaughter or adopted daughter under the age of eighteen, conviction of the defendant of aggravated incest because of conduct occurring between him and his adopted daughter must be reversed because of an unconstitutional discrimination.

In Commonwealth v. MacKenzie, 368 Mass. 613, 334 N.E.2d 613 (1975) the Massachusetts Court held that imposition of a criminal sentence upon the father alone under a statute providing that whoever, not being the husband of the woman, gets her with child, would be guilty of a misdemean- or for the getting of the child, violated equal protection clauses of the Constitution.

Under the “Fondling Statute” if the child is under fourteen years old, the crime may be committed upon it regardless of the child’s sex and whether it consents or does not consent.

An unconstitutional law is void, and is as no law. An offense created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment. . . . (Fay v. Noia, 372 U.S. 391, 408, 83 S.Ct. 822, 832, 9 L.Ed.2d 837, 850-851) (1963).

The legislative intent to confine application of the statute to male persons, not simply to “any” person as in most criminal statutes, manifests an intentional exclusion of females. The word “male” in the statute cannot be ignored without destroying the clear legislative intention to limit application of the statute to males. It may not be struck out without judicially creating a crime, without legislative sanction, under which females could be convicted and sentenced. This Court may not create a crime by construction.

Designed to protect children from becoming the objects of erotic behavior on the part of adults, the purpose of the statute is salutary. It appeared as section 1142(c) of the 1921 Supplement to Hem-mingway’s Code, at a time when sex was regarded as a personal and private matter between consenting adults. The exclusion of females was due, perhaps, to some vestigial chivalric notion that women were incapable of the acts proscribed. Today, we have witnessed in the streets of our cities the parading about of persons, women as well as men, publicly proclaiming themselves to be sex deviates and demanding “rights” as such. The stage and screen appear to have become obsessed with the portrayal of explicit sex. Pornography has become an ill of our times. We learn from the news media of the use of children by adults for the purpose of prostitution, by men as well as by women, and sometimes by their own parents. Limiting application of the statute to men can be no longer be said to be realistic, if it ever was. It is the Legislature’s prerogative to correct the defect in the statute and the matter is commended to that body for its consideration.

We have concluded that the statute is clearly discriminatory and unconstitutionally denies equal protection of the law to males and is, therefore, void.

For the reasons stated the appellant’s conviction is reversed and he is discharged.

REVERSED AND APPELLANT DISCHARGED.

THIS CASE WAS CONSIDERED BY A CONFERENCE OF THE JUDGES EN BANC.

PATTERSON, C. J., ROBERTSON, P. J., and WALKER, BROOM and COFER, JJ., concur.

SUGG, LEE and BOWLING, JJ., dissent.

SUGG, Justice,

dissenting:

I dissent because we may strike the word “male” from the statute thereby removing the gender based distinction prohibited by the Fourteenth Amendment to the United States Constitution. We may strike the word “male” under the well established rule that: it is the Court’s duty in passing on the constitutionality of a statute, to separate the valid from the invalid part if this can be done, and to permit the valid part to stand unless the different parts of the statutes are so intimately connected with and dependent upon each other as to warrant a belief that the legislature intended them as a whole; and that if all cannot be carried into effect, the legislature would have enacted the valid part independently. Lovorn v. Hathorn, 365 So.2d 947 (Miss.1979); O’Neal v. Simpson, 350 So.2d 998 (Miss.1977); Wilson v. Jones County Board of Supervisors, 342 So.2d 1293 (Miss.1977); Howell v. State, 300 So.2d 774 (Miss.1974); American Express Co. v. Beer, 107 Miss. 528, 65 So. 575 (1914); Adams v. Standard Oil Co., 97 Miss. 879, 53 So. 692 (1910); Campbell v. Mississippi Union Bank, 7 Miss. 625 (1842).

In O’Neal, supra, we held that, where part of a statute is valid and another part invalid, the presumption arises that the legislature intended to enact the valid part if it is separate and distinct from the invalid part and is not dependent on the invalid part. The valid part of the statute under consideration does not depend on the word ‘Jjmale” and is separable from the invalid part. A reading of the statute demonstrates this.

After striking the word “male” from the statute, the masculine pronoun “his” would remain in the statute in two places; however, under the provisions of section 1-3-17 Mississippi Code Annotated (1972), “words in the masculine gender shall embrace a female as well as a male, unless a contrary intention may be manifest.”

In Spears v. State, 278 So.2d 443 (Miss.1973), we held that Section 1 of the Mississippi Abortion Statute [section 97-3-3 Mississippi Code Annotated (1972)] was constitutional with the exception of subsections (a) and (b) and let a conviction under the statute stand after declaring part of the criminal statute constitutional and part unconstitutional.

In Spears v. Ellis, 386 F.Supp. 653 (1974); affirmed 423 U.S. 802, 96 S.Ct. 9, 46 L.Ed.2d 23 (1975), the Mississippi Abortion Statute was considered after our decision in Spears, supra. A three judge court held that the remaining portion of the Mississippi Abortion Statute was not overbroad, vague or indefinite.

The United States Supreme Court has held that the invalid part of a statute may be dropped without affecting the remainder if the valid part is fully operative and there is no showing that the legislature would not have enacted valid provisions independently. U. S. v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968). The United States Supreme Court also held in Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160 (1936), that, to hold one part of a statute unconstitutional and uphold another part as separable, parts must not be mutually dependent on one another.

In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the United States Supreme Court held that Article 1196 of the Texas Abortion Statute was unconstitutional because no distinction was made between abortions performed early in pregnancy and those performed later. Th^ remaining portion of the abortion statute was not permitted to stand because it did not permit abortions under standards announced in the case.

Under the rules of construction of statutes announced by both the United States Supreme Court and this Court, we may strike the word “male” from the statute, thus leaving a complete and consistent statute neutral in gender. This would not create a common law crime but would simply enlarge the class of persons subject to punishment.

The fondling statute was first enacted as Section 1, Chapter 215, Mississippi General Laws (1920), and was passed “For the better protection of female children of tender years against the insults of lustful male persons.” It was amended in 1958 to “prohibit the violation of the persons of all children under the age of 14 years.” The 1958 amendment evidences the legislature’s awareness of changing sexual mores. When the statute was originally enacted the Fourteenth Amendment to the United States Constitution had not been applied by the United States Supreme Court to criminal statutes and criminal procedures of the several states of the Union. Undoubtedly, the legislature would have included females in the original statute if the Fourteenth Amendment had then been construed as a prohibition against statutes which saddle members of one sex with a burden not born similarly by members of the other sex. Under the changing sexual mores of our society we must now face up to the fact, as testified by one of the witnesses, that “from a psychological standpoint it is my opinion that a woman could be just as guilty of this offense as a man.”

The purpose of the legislature in enacting the statute was to protect children from becoming the objects of erotic behavior on them by adults. This overriding purpose of the statute should not be overlooked and should be the polestar that guides us in determining whether the statute is constitutional.

I recognize the familiar principle that criminal and penal statutes are to be construed strictly and this rule of construction is predicated on the law’s tenderness for individual rights. However, the Court may, and I conceive it to be our duty, to construe statutes so as to preserve the intent of the legislature by striking the unconstitutional part from a statute, provided the remainder is fully operative.

If the word “male” is stricken from the statute, it would then apply with equal force to both sexes. Of course this holding would be subject to the due process and ex post facto provisions of both the federal and state constitutions. However, striking the word “male” from the statute, would not violate due process or the prohibition against ex post facto laws in this case because the defendant is a male and the statute as written gave him notice that his conduct was unlawful. In Bouie v. Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964) the Supreme Court stated:

Indeed, an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids. An ex post facto law has been defined by this Court as one “that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action,” or “that aggravates a crime, or makes it greater than it was, when committed.” Calder v. Bull, 3 Dall 386, 390 [3 U.S. 386], 1 L.Ed. 648 [650]. If a state legislature is barred by the Ex Ppst Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction. Cf. Smith v. Cahoon, 283 U.S. 553, 565, 51 S.Ct. 582 [586], 75 L.Ed. 1264, 1273. The fundamental principle that “the required criminal law must have existed when the conduct in issue occurred,” Hall, General Principles of Criminal Law (2d ed 1960), at 58-59, must apply to bar retroactive criminal prohibitions emanating from courts as well as from legislatures. If a judicial construction of a criminal statute is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,” it must not be given retroactive effect. Id., at 61. (378 U.S. at 353, 354, 84 S.Ct. at 1702, 1703, 12 L.Ed.2d at 899, 900).

The judicial construction which I favor would not constitute retroactive application to the defendant in this case because he is a male, and the statute as written gave him notice that his acts were unlawful. Striking the word “male” from the statute would 'not constitute creation of crime by the court, but would constitute enlargement by judicial construction, of a crime created by the legislature by making the statute apply with equal force to both sexes.

A different result would be reached if the defendant was a female because the notice requirement would not be satisfied. After striking the word “male” from the statute, females would then be put on notice that the crime of fondling applied to them after the publication of our opinion.

I would affirm.

LEE and BOWLING, JJ., join this dissent.

      . Section 97-5-23 Mississippi Code Annotated (1972) provides in part:
      Any male person above the age of eighteen years, who, for the purpose of gratifying his lust, or indulging his depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his body or any member thereof, any child under the age of fourteen years, with or without his consent, shall be guilty of a high crime . .


text:
    Kent SAXON v. Erle JOHNSTON & Scott County Times, Inc.
    No. 51277.
    Supreme Court of Mississippi.
    May 30, 1979.
    Rehearing Denied July 11, 1979.
    Kent Saxon, pro se.
    O. B. Triplett, Jr., Forest, for appellees.
   Appeal from Circuit Court, Scott County; W. W. Brown, Special Judge.

Before SMITH, P. J., and SUGG and COFER, JJ.

AFFIRMED.