author: MARCUS, Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Wilfred ELIAS, Jr.
    No. 60376.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
    Rehearing Denied March 3, 1978.
    Dissenting Opinion April 11, 1978.

      Fredric G. Hayes, Fredric Hayes, Inc., Lafayette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., David F. Hutchins, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Wilfred Elias, Jr. was charged by bill of information with contributing to the delinquency of a juvenile on September 2, 1976 in violation of La.R.S. 14:92 A(3). The juvenile involved was a female of twelve years. After trial by jury, defendant was found guilty as charged and sentenced to serve six months in the parish prison and to pay a fine of five hundred dollars plus court costs. On appeal, defendant relies on one assignment of error, denial of his motion in arrest of judgment, for reversal of his conviction and sentence.

Defendant first contends the trial judge erred in denying his motion in arrest of judgment on the ground that the offense with which he was charged is not punishable under a valid statute. When the instant offense was allegedly committed, La.R.S. 14:92 contained two irreconcilable penalty provisions, enacted in 1968. See former La.R.S. 14:92 C. Although this inconsistency was resolved by Act 121 of 1976, the 1968 statute was still in effect on September 2, 1976, date of the instant offense.

Act 486 of 1968 provided:

Whoever commits the crime of contributing to the delinquency of a juvenile shall be fined not more than one thousand dollars or be imprisoned in the parish prison for not more than two years, or both. (Emphasis added.)

Act 647 of 1968 provided:

Whoever commits the crime of contributing to the delinquency of a juvenile shall be fined not more than one thousand dollars, or imprisoned for not more than two years, with or without hard labor, or both. (Emphasis added.).

In State v. Seals, 343 So.2d 717 (La.1977), this court was presented with the issue of whether the City Court of Plaquemine had jurisdiction over a contributing to the delinquency of juveniles charge under La.R.S. 14:92 where the offense was committed during the effective period of the 1968 statute. Since the city court’s jurisdiction is limited to the trial of offenses not punishable by imprisonment at hard labor (La.R.S. 13:1894), resolution of the jurisdictional issue required determination of which of the 1968 acts was applicable. In Seals, this court found that Act 647 of 1968 was the latest expression of the legislative will and, therefore, the applicable provision:

In State v. St. Julian, 221 La. 1018, 61 So.2d 464 (1952), we outlined the pertinent rules as follows:
‘ . . . [I]t is apparent that where the acts are in direct conflict the arbitrary rule, that the statute last in order of position will prevail, must be applied. This rule is recognized by the above quoted article of the LSA-Civil Code [LSA-C.C. Art. 23] with reference to laws where the former law is irreconcilable. There is no other reasonable rule that could be applied to conflicting statutes passed at the same session of the legislature than to hold that the later expression of the legislative will must govern.’
See also Dickerson v. Hennen, La.App., 249 So.2d 251 (1971); State v. Toups, La.App., 95 So.2d 55 (1957); 13 La.L.Rev. 606.
The Senate approved Act 486 on July 7, 1968, and Act 647 on July 9, 1968. The House of Representatives passed both acts on July 10, 1968. 1968 Legislative Calendar of the State of Louisiana, 31st Reg.Sess., 193-194, 333. Therefore, the last legislative action on both bills occurred on the same date. The Legislature maintains no record of the exact time of legislative actions. The Governor signed both bills on July 20,1968. Hence, we must turn to other sources to determine which penalty provision was the later expression of legislative will.
Louisiana Constitution of 1921 Article 3, § 26 provided:
‘Whenever a bill that has been passed by both houses has been enrolled and placed in possession of the house in which it originated, the title shall be read, and at the request of any five members, the bill shall be read in full, when the Speaker of the House of Representatives or the President of the Senate, as the case may be, shall at once sign it in open house, and the act of signing shall be noted in the journal; thereupon the clerk or secretary shall immediately convey the bill to the other house, whose presiding officer shall cause a suspension of all other business to read and sign the bill in open session and without delay. As soon as bills are signed by the Speaker of the House and President of the Senate, they shall be taken at once, and on the same day, to the Governor by the clerk of the House of Representatives or secretary of the Senate.’ (Emphasis supplied.)
Presuming, as we must, that the Legislature complied with the above constitutional mandate by promptly transmitting the bills to the governor, we think that the time of the governor’s receipt is a proper guide in determining the later expression of legislative will. State v. Toups, supra; 1956 Reports and Opinions of the Attorney General of Louisiana 121.
The Governor received Act 486 on July 11, 1968, at 12:30 p. m., and Act 647 on July 11, 1968, at 2:00 p. m. From the time of receipt, we conclude that Act 647 was the later expression of legislative will. .

Hence, at the time the instant offense was committed, La.R.S. 14:92 contained only one effective penalty provision, Act 647 of 1968. Accordingly, defendant’s first contention is without merit.

Defendant next contends that his motion in arrest of judgment was wrongfully denied on the ground that specific criminal intent is an essential element of the crime charged under La.R.S. 14:92 A but that subsection B thereof has the effect of relieving the state of its burden of proving and precludes defendant from presenting a defense on that element of the crime, in derogation of his constitutional right to be presumed innocent until proven guilty.

Defendant was charged with violation of La.R.S. 14:92 A(3) which provides:

Contributing to the delinquency of juveniles is the intentional enticing, aiding or permitting, by anyone over the age of seventeen, of any child under the age of seventeen, and no exception shall be made for a child who may be emancipated by marriage or otherwise, to:
Visit any place where beverages of either high or low alcoholic content are the principal commodity sold or given away; . (Emphasis added.)

Subsection B provides: “Lack of knowledge of the juvenile’s age shall not be a defense.”

Although the presence of a “vicious will” or mens rea has long been a requirement of criminal responsibility, many exceptions have been recognized. United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971). In Morisette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), a case involving the mens rea requirement as an element in the crime of conversion of government property, the United States Supreme Court examined at length the historical development of mens rea as an element of criminal conduct and recognized certain exceptions, including “sex offenses, such as rape, in which the victim’s actual age was determinative despite defendant’s reasonable belief that the girl had reached age of consent.” Crimes involving juveniles, historically recognized as a special class of persons in need of protection, often do not require knowledge of the child’s age as an essential element.

In examining La.R.S. 14:92, the statute under which defendant was charged, we note that the mens rea required is general criminal intent, not specific criminal intent as defendant contends. La.R.S. 14:10 and 11; State v. Hardy, 232 La. 920, 95 So.2d 499 (1957). However, in subsection B, the legislature expressly provided that the age of the juvenile, only one of the several elements of the offense, is not subject to the mens rea requirement. Knowledge of the juvenile’s age is not an essential element of the offense with which defendant was charged. Hence, there is no merit to defendant’s contention that La. R.S. 14:92 B relieves the state of its burden of proving and precludes the defendant from presenting a defense on an essential element of the crime charged. Accordingly, the trial judge did not err in denying defendant’s motion in arrest of judgment on this ground.

DECREE

For the reasons assigned, the conviction and sentence are affirmed.

DIXON, J., concurs.

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice,

dissenting.

I am of the view that subsection B of R.S. 14:92[A] has the effect of relieving the state of its burden of proof in this case to prove that defendant knowingly contributed (general intent) to the delinquency of a juvenile, and that same is in derogation of the defendant’s constitutional right to be presumed innocent until proven guilty.

      . Since the sentence actually imposed does not include a fine exceeding five hundred dollars or imprisonment exceeding six months, our appellate jurisdiction is dependent upon whether defendant has been convicted of a felony, i. e., an offense that may be punished by death or imprisonment at hard labor. La.Const. art. 5, § 5(D); La.Code Crim.P. art. 933(3). For reasons hereinafter set forth, defendant was convicted of a felony. Hence, the case is appeala-ble to this court.

      . La.R.S. 14:92 C and D now provide:
      C. Whoever commits the crime of contributing to the delinquency of a juvenile shall be fined not more than five hundred dollars, or imprisoned for not more than six months, or both.
      D. Whoever is charged and convicted of contributing to the delinquency of a juvenile under Paragraph (7) of Subsection A of this Section shall be fined not more than one thousand dollars, or imprisoned with or without hard labor for not more than two years, or both.

      .Article 3, § 19 of the Louisiana Constitution of 1974 provides:
      All laws shall take effect on the sixtieth day after final adjournment of the session in which they were enacted, and shall be published prior thereto in the official journal of the state as provided by law. However, any bill may specify an earlier or later effective date.
      The Second Regular Session, 1976, under the Constitution of 1974 convened on May 10, 1976, and adjourned sine die August 2, 1976. The general effective date of laws enacted by the Second Regular Session, 1976, is October 1, 1976. Hence, Act 121 of 1976 is not applicable in the instant case.

      . In furtherance of the state’s historical and well-recognized interest in protection of juveniles, our legislature has chosen to expressly exclude knowledge of the juvenile’s age from the essential elements of several crimes involving that class of persons. See, e. g., La.R.S. 14:42(3) (aggravated rape); La.R.S. 14:80 (carnal knowledge of a juvenile); La.R.S. 14:81 (indecent behavior with juveniles); La.R.S. 14:86 (enticing minors into prostitution); La. R.S. 14:92 (contributing to the delinquency of juveniles); La.R.S. 14:93 (cruelty to juveniles).


source: Caselaw Access Project

author: GARSAUD, Judge.

license: Public Domain

text:
    In re Aaron M. KOHN, Louis J. ROUSSEL v. The OKLAHOMA PUBLISHING COMPANY and Aaron M. Kohn.
    No. 9283.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 27, 1978.

      Garon, Brener & McNeely, Milton E. Brener, New Orleans, for relator.
    Carl, Roussel & Hughes, Clifton S. Carl, New Orleans, for respondent.
    Peter J. Butler, New Orleans, for Louis J. Roussel.
    Before LEMMON, SCHOTT and GAR-SAUD, JJ.
   GARSAUD, Judge.

We hereby grant a writ of certiorari in this matter to review the denial of discovery to defendant by the trial court. Pursuant to the provisions of Article 1461 of the Code of Civil Procedure, defendant Aaron M. Kohn filed a request for production of documents, directed to plaintiff, Louis J. Roussel. At the same time, defendant had a subpoena duces tecum issued to the National American Bank to produce various papers and records in their possession. Both Roussel and the National American Bank filed motions to quash. After a contradictory hearing, the trial court maintained the motion to quash insofar as it related to two portions of the request for production addressed to Mr. Roussel, and maintained the motion of the National American Bank in toto. After review, it appears necessary to modify the trial court’s order and to require the production of certain documents requested from Rous-sel, and to require the oral deposition of and the production of certain documents by the National American Bank.

Louis J. Roussel sued the Oklahoma Publishing Company and Aaron Kohn for defamation contained in certain publications owned by the corporate defendant. The allegedly defamatory statement was based on an interview by a reporter of the Oklahoma newspaper with Aaron Kohn. Defendant Kohn contends that production of the documents is necessary for the defense of this lawsuit. This assertion is not denied by the respondents herein.

Concerning production of documents from Roussel, only two specific requests are still at issue. These requests were as follows:

(1) “Copies of all affidavits, depositions, exhibits, proposed exhibits, and reports of investigations prepared or obtained by you or your counsel or otherwise available to you arising out of or connected with the proceedings before the Board of Governors of the Federal Reserve System styled ‘In the Matter of Louis J. Roussel and Louie J. Roussel, III, Officers and Directors, National American Bank of New Orleans, Louisiana,’ to which proceedings reference is made in the complaint filed by you in Civil Action No. 75-1044 on the docket of the United States District Court of the Eastern District of Louisiana.”
(2) “Copies of all affidavits, depositions, exhibits, proposed exhibits, and investigative reports prepared or obtained by you or your counsel or otherwise available to you arising out of or connected with the matter entitled ‘C. Ellis Henican v. Louis J. Roussel, et a 1.,’ Civil Action No. 69-2898 on the docket of the United States District Court for the Eastern District of Louisiana.”

The proceedings before the Board of Governors for the Federal Reserve System, referred to in the first request above, are in the nature of a private hearing, according to the provisions of 12 U.S.C. § 1818(h)(1), which provides in pertinent part as follows:

“Any hearing provided for in this section shall be held in the Federal judicial district or in the territory in which the home office of the bank is located unless the party afforded the hearing consents to another place, and shall be conducted in accordance with provisions of chapter 5 of Title 5. Such hearing shall be private, unless the appropriate Federal banking agency, in its discretion, after fully considering the views of the party afforded the hearing, determines that a public hearing is necessary to protect the public interest.”

See also the legislative history of this statute at 3 U.S.Cong. & Admin.News ’66-3539.

The hearings referred to are hearings for the removal of a bank officer and, in the instant case, are alleged to have contained allegations of dishonesty or breach of trust on the part of Louis J. Roussel, as Chairman of the Board of Directors for the National American Bank.

Subsequent to the hearing held by the Board of Governors, suit was brought by Louis Roussel against the Board of Governors for the Federal Reserve System in Civil Action No. 75-1044, United States District Court, Eastern District of Louisiana. In spite of the fact that the hearings before the Board were private, Roussel’s filing of the suit against the Board made much of the proceedings a matter of public record. A limited order was signed in Civil Action No. 75-1044, placing under seal and making unavailable to public inspection the exhibits filed by the Board of Governors of the Federal Reserve System in their administrative hearing entitled, “In the Matter of Louis J. Roussel and Louie J. Roussel, III, Officers and Directors, National American Bank of New Orleans, Louisiana.’’

To the extent that any of the documents requested have been placed under seal or attached to Roussel’s petition in Civil Action No. 75-1044, we uphold the trial court’s order to quash the production of such documents. However, with regard to those documents not placed under seal but made part of the hearing record, presuming they would otherwise be statutorily protected in favor of Roussel, we order their production for inspection by defendant in this case for the reason that Roussel, in effect, waived the protection afforded by 12 U.S.C. 1818(h)(1) when he introduced this matter into a new and public forum by filing the lawsuit against the Board. The Board has indicated its view by sealing only part of the hearing record.

Furthermore, any documents in the possession of Roussel relating to the Board hearing but not made part of the record of that private hearing are not entitled to the protection of 12 U.S.C. 1818(h)(1), for the reason that they were not in fact part of the hearing. These therefore are also ordered to be produced.

With regard to the second request, asking for documents arising out of the matter entitled, “C. Ellis Henican v. Louis J. Roussel, et al.,” Civil Action No. 69-2898, United States District Court for the Eastern District of Louisiana, the majority of the requested documents are a matter of public record in the above-numbered case. To the extent that the documents in- the possession of Roussel are also filed as a matter of public record and thus available, the order to quash production shall be maintained. Roussel contends that all other documents relevant to the Henican suit in his possession are covered by the attorney-client privilege, and thus are unavailable to the defendant. The trial court apparently quashed on this basis.

This is a much more difficult question to resolve. The attorney-client privilege is not absolute and may fall under appropriate circumstances. Eagle Industrial Assoc., Inc. v. Universal Oil Corp., 277 So.2d 720 (La.App.2d Cir. 1973). McCormick on Evidence at p. 199 states:

“Since the policy of the privilege is that of promoting the administration of justice, it would be a perversion of the privilege to extend it to the client who seeks advice to aid him in carrying out an illegal or fraudulent scheme. Advice given for those purposes would not be a professional service but participation in a conspiracy. Accordingly, it is settled under modern authority that the privilege does not extend to communications between attorney and client where the client’s purpose is the furtherance of a future intended crime or fraud. Advice secured in aid of a legitimate defense by the client against a charge of past crimes or past misconduct, even though he is guilty, stands on a different footing and such consultations are privileged. If the privilege is to be denied on the ground of unlawful purpose, the client’s guilty intention is controlling, though the attorney may have acted innocently and in good faith.
“Must the judge, before denying the claim of privilege on this ground find as a fact, after a preliminary hearing if contested, that the consultation was in furtherance of crime or fraud? This would be normal procedure in passing on a preliminary fact, on which the admissibility of evidence depends, but here this procedure would facilitate too far the use of the privilege as a cloak for crime. As a solution, some courts have cast the balance in favor of disclosure by requiring only that the one who seeks to avoid the privilege bring forward evidence from which the existence of an unlawful purpose could reasonably be found. Even this limitation seems needless when, as is commonly the case, the examining counsel, has sufficient information to focus the inquiry by specific questions, thus avoiding any broad exploration of what transpired between attorney and client.” (Emphasis supplied and footnotes omitted.)

If Kohn can prove facts more consonant with a guilty purpose than with an innocent one on the part of Roussel, then the privilege does not obtain. However, Kohn is effectively estopped from “[bringing] forward evidence from which the existence of an unlawful purpose could reasonably be found” because of the sealed records, among other things, in the federal court relative to the Federal Reserve Board investigation in the subsequent suit filed by Roussel. The Federal Reserve Board, though, has alleged fraud in its Notice of Intention to Remove Officers or Directors under Financial Institutions Supervisory Act, a document dated July 11, 1974, consisting of 20 pages. Paragraphs 31 and 32 state as follows:

“31. In connection with the settlement of the Henican lawsuit, LOUIS J. ROUSSEL as Director and Chairman of the Board of Directors of the BANK, and LOUIE J. ROUSSEL, III as Director and President of the BANK also caused the BANK to disburse $500,000 by a cashier’s check payable to bearer for the benefit of themselves. This check was ultimately delivered to C. Ellis Henican as part of the settlement of the lawsuit.
“32. Such disbursal of the $500,000 constitutés a willful misapplication of funds of the BANK in violation of 18 U.S.C. § 656.”

In order to prove these allegations, the Board had to submit evidence to the appropriate administrative officer hearing the case. It is this evidence, however, which is under seal by the federal court. Further, the attorney who represented Roussel at the time, Clem Sehrt, is deceased. Hence, we are faced with a dilemma.

Under these circumstances, we believe justice requires that the trial court hold an in camera hearing with counsel for both parties to review the documents and other evidence argued to be covered by the privilege, to determine the following:

(1) If, under normal circumstances, they are in fact covered by the privilege;
(2) If they are, whether the privilege must fall because that evidence relates to the furtherance of future intended fraud, as alleged in Paragraphs 31 and 32 of the Board charges, rather than to counsel as to charges of past misconduct.

If the Court concludes that the privilege obtains, the trial judge shall reinstate the motion to quash. If the privilege, for any reason, does not obtain, the trial judge shall order the evidence produced under an appropriate protective order.

The subpoena directed to the National American Bank pursuant to Article 1442 of the Code of Civil Procedure requested designation of an officer to testify with respect to the negotiations leading up to and the execution of the settlement of the case entitled “C. Ellis Henican v. Louis J. Roussel, et al.,” and the investigation of the Board of Governors of the Federal Reserve System proceedings entitled “In the Matter of Louis J. Roussel, et a 1.” Good cause having been shown by the defendant, this deposition is ordered to take place at a time and place set by the trial court.

The subpoena duces tecum issued to the National American Bank requested the production of documents concerning:

(1) Negotiations leading up to settlement of the Henican case;
(2) Any payments made to C. Ellis Heni-can between December 1, 1971 and July 1, 1972;
(3) Minutes of the bank board meeting for November 13, 1968;
(4) Minutes of the bank board meeting for November 25, 1970;
(5) Copies of any cease-and-desist order or consent decree affecting the bank;
(6) All documents pertaining to the Federal Reserve system action entitled “In the Matter of Louis J. Roussel, etc.”; and
(7) One document for each date containing lists of members of directors and shareholders as of November 13, 1968; November 25,1970; December 5, 1971; and the date of the issuance of the subpoena duces tecum.

The first request in the subpoena duces tecum to the Bank specifically requests:

“1) All documents pertaining to the negotiation of and settlement of proceedings entitled, ‘C. Ellis Henican v. Louis Roussel, et als,’ No. 69-2898 on the Docket of the United States District Court, Eastern District of Louisiana, including but not limited to: (a) the settlement agreement resulting in the dismissal of said case on December 5, 1971; (b) any release executed by any party in connection with that settlement; (c) any correspondence forming part of negotiations or referring to such settlement negotiations whether by the National American Bank or an officer or other agent or employee thereof, or directed to the National American Bank; (d) a copy of any check, back and front, negotiated or transferred in connection with the settlement; (e) all ledgers, accounts, books and records of the bank reflecting any such payment in settlement; (f) financial statements for calendar years 1972 and 1973, whether prepared for the benefit of stockholders or other parties, reflecting said payment; (g) resolutions of the Board of Directors authorizing settlement.”

The Court disposes of this first request as follows:

(a) & (b) These documents should be available in the record of “C. Ellis Henican v. Louis Roussel, et al.,” C.A.No.69-2898 on the docket of the United States District Court for the Eastern District of Louisiana. The motion to quash is proper here. However, if said documents were not filed in the record and are in the Bank’s possession, they must be produced. C.C.P. Arts. 1354; 1461; 1463.

(c) Correspondence for which a claim of privilege is entered will be governed by the court’s decision on the attorney-client privilege, discussed above. Other correspondence will be produced. C.C.P. Art. 1354; 1461; 1463.

(d) A copy of any check, back and front, negotiated or transferred in conjunction with the said settlement, or in payment of any sums due in accordance with the settlement, will be produced. C.C.P. Arts. 1354; 1461; 1463.

(e) All ledgers, accounts, books,, and records of the Bank reflecting any such payment in settlement will be produced. C.C.P. Arts. 1354; 1461; 1463.

(f) Financial statements for calendar years 1972 and 1973, whether prepared for the benefit of stockholders or other parties, reflecting such payment, will be produced. C.C.P. Arts. 1354; 1461; 1463.

(g) Resolutions of the Board of Directors authorizing the settlement will be produced. C.C.P. Arts. 1354; 1461; 1463.

The production of these documents in item 1) is limited solely to the extent of those portions relevant to the settlement of the Henican case.

The second request in the subpoena duces tecum specifically states:

“2) Any payment made to C. Ellis Hen-ican by the National American Bank for any purpose whatever between December 1, 1971, and July 1, 1972, including (a) a copy of any check, back and front, negotiated or transferred to the said C. Ellis Henican; (b) all ledgers, accounts, books and records of the bank reflecting any such payment; (c) financial statements for calendar years 1972 and 1973, whether prepared for the benefit of stockholders or other parties, reflecting said payments; and (d) resolutions of the Board of Directors authorizing payment.”

The Court disposes of the second request as follows:

The request for documents concerning any payment made to C. Ellis Henican by the National American Bank between December 1, 1971 and July 1, 1972 is granted. C.C.P. Art. 1354; 1461; 1463. This shall be limited, however, to only the relevant portions of those documents requested.

The third and fourth requests specifically state:

“3) All minutes of the meeting of the Board of Directors of the National American Bank for November 13, 1968, as as well as all attachments referred to therein.”
“4) All minutes of meetings of the Board of Directors for the National American Bank of November 25, 1970, as well as all attachments thereto or any documents referred to therein.”

The Court disposes of the third and fourth requests as follows:

The request for the minutes of the meetings of the Board of Directors of the National American Bank for November 13, 1968 and November 25, 1970 shall be produced, with the restriction that only the relevant portions shall be available for inspection by defendants. Any attachments thereto, or any documents referred to therein, shall be produced only if relevant to the issues herein. C.C.P. Arts. 1354; 1461; 1463.

The fifth request specifically states:

“5) A true and exact copy of any cease and desist order or any consent decree affecting the National American Bank as a result of agreement or final adjudication by any Federal Regulatory Agency, including the Board of Governors of the Federal Reserve System, and all correspondence pertaining thereto whether prepared by the National American Bank or any officer or employee thereof, or directed to the National American Bank.”

The Court disposes of the fifth request as follows:

The request for a true and exact copy of any cease-and-desist order or any consent decree affecting the National American Bank as a result of agreement or final adjudication by a federal regulatory agency, and all correspondence pertaining thereto, is denied. The defendant has failed to show that Roussel was a party to any proceeding involving a cease-and-desist order, and therefore there is a lack of relevance shown.

The sixth request specifically states:

“6) Copies of all documents, including affidavits, depositions, exhibits, proposed exhibits, reports of investigations, correspondence, findings, opinions and other documents pertaining to the proceedings before the Board of Governors of the Federal Reserve System styled, “In the Matter of Louis J. Roussel and Louis J. Roussel, III, Officers and Directors, National American Bank of New Orleans, Louisiana,” commenced in or shortly after the calendar year 1974.”

The Court disposes of the sixth request as follows:

The same request has been made of Mr. Roussel himself, and production has been ordered by this Court. To request these documents of the Bank would be a duplication and therefore is denied. If, however, the documents ordered produced from Roussel under the analysis of this Court are in the possession of the Bank rather than of Roussel, they shall be produced by the Bank. C.C.P. Arts. 1354; 1461; 1463.

The seventh request specifically states:

“7) One document each containing a list of, or information revealing, names and addresses of (a) members of the Board of Directors; and (b) shareholders of National American Bank as of the following dates:
1) November 13, 1968;
2) November 25, 1970;
3) December 5, 1971;
4) The date of receipt of this subpoena.”

The Court disposes of the seventh request as follows:

The request for shareholder lists and Board of Directors member lists for these dates shall be granted. C.C.P. Arts. 1354; 1461; 1463.

The Court is aware that much of the information contained in the documents requested from the National American Bank is of a confidential nature. However, this information is relevant to this case, and has been shown to be necessary to the defendant for the preparation of his defense.

For these reasons, it is felt that the documents sought from the Bank should be produced for inspection by defendant, and that the confidentiality of these matters may be properly protected by the issuance of a protective order by the trial court in accordance with the provisions of Article 1426, Code of Civil Procedure.

Accordingly,

IT IS ORDERED that the Honorable Paul P. Garofalo, Judge of the Civil District Court for the Parish of Orleans, set aside that portion of his judgment of December 2, 1977 quashing production of documents, as is indicated herein, and further that he order production of documents and protective orders, where appropriate, consistent with this opinion.

WRIT GRANTED.

      . As there was no specific request for relevant files in the possession of the estate of Clem Sehrt, we have not addressed ourselves to the issue of their discoverability.


author: LANDRY, Judge. PER CURIAM.

text:
    Cullen RAWLEY v. Betty Seals RAWLEY and Bogalusa Loan Corporation.
    No. 11740.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.
    Rehearings Denied March 20, 1978.
    Writ Refused April 28, 1978.

      Charles B. W. Palmer, of Palmer & Palmer, Amite, for plaintiff.
    E. B. Dittmer, II, of Talley, Anthony, Hughes & Knight, Bogalusa, for Estate of Ben W. Miller and First State Bank & Trust Co.
    Richard W. Brown, Bogalusa, for Bogalu-sa Loan Corp.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Plaintiff (Appellant) appeals from judgment rejecting his demands for nullity of a judgment of partition of the community previously existing between Appellant and his divorced wife Betty Seals Rawley and for damages for claimed physical and mental injuries allegedly caused by the illegal and wrongful seizure and sale of the community property to effect a partition by licitation. We affirm in part and reverse in part.

This litigation is the result of prior actions between Appellant, his former spouse and Bogalusa Loan Corporation (Bogalusa). On January 27, 1965, Appellant filed suit seeking a judicial separation from Mrs.. Rawley. By subsequent amendments, Appellant converted his suit into one for divorce and partition of the community estate. On February 24, 1965, Mrs. Rawley entered suit against Appellant for divorce and partition of the community existing between them. In Mrs. Rawley’s suit, personal service was had on Appellant. On April 2, 1965, Bogalusa filed suit against Mr. and Mrs. Rawley to foreclose a mortgage held by Bogalusa on the Rawley homestead. All three actions were consolidated. Appellant successfully resisted Bo-galusa’s foreclosure action by establishing that Appellant’s signature on the note and mortgage sued upon had been forged by an unknown party induced by Mrs. Rawley to impersonate Appellant in the execution of those documents. An injunction was issued in the foreclosure proceeding prohibiting Bogalusa from enforcing its mortgage. On May 11, 1967, judgment was rendered in Appellant’s divorce action granting Appellant a divorce and ordering partition of the community property. Mrs. Rawley then assigned her interest in the community to Bogalusa. On September 27, 1967, Appel-lees filed a joint petition in the consolidated actions, praying for partition of the community property as ordered in Appellant’s divorce action on May 11, 1967. On Appel-lees’ unilateral petition, a notary was appointed to inventory the community, an appraisal of the community was made, partition by licitation was ordered on a showing that the property was indivisible in kind since it consisted of a family home, the property was duly advertised for sale, and Bogalusa became the purchaser at a sheriff’s sale ordered by the court.

In this action, Bogalusa third partied its attorney, Benjamin Miller, who represented Bogalusa in the foreclosure proceeding and also in the partition proceedings involved herein. Bogalusa has answered Appellant’s appeal praying for judgment against Miller in the event Bogalusa is cast on appeal.

The trial court did not expressly pass upon Appellant’s demand for nullity of the. partition proceedings. Instead, the trial court considered the matter as a demand for damages for alleged wrongful conduct by Appellees in the previous actions. On this basis, the trial court found that Appellant failed to meet the required burden of proof both as to alleged wrongful conduct and causal connection between Appellees’ acts and Appellant’s mental condition.

Service of all pleadings filed by Appellees to enforce the judgment of partition were served on Appellant’s attorney of record in the consolidated actions. The record is clear, however, that in July, 1967, prior to Appellees’ seeking enforcement of the partition, Appellant’s attorney of record in the consolidated actions wrote Appellant a letter withdrawing as Appellant’s counsel in compliance with Appellant’s request. A copy of said letter was sent to Mrs. Raw-ley’s attorney and to Miller as attorney for Bogalusa. It is conceded that in the partition proceeding, no service — personal, domiciliary, or otherwise — was made on Appellant. The record establishes that although service was made on Appellant’s attorney of record, said attorney made no effort to communicate with Appellant regarding the matter. It also appears that said attorney received a check for Appellant’s one-half of the net proceeds of the partition sale from which he deducted expenses he had advanced and sent a check for the balance to Appellant’s attorney of record in this present proceeding. The check was never cashed. It is also clear that Appellant had no knowledge of the pendency of proceedings to execute the judgment of partition.

Appellees maintain that enforcement by Mrs. Rawley of the judgment of partition rendered in Appellant’s divorce action was permissible in view of the Supreme Court’s decision in Blunson v. Brocato, 187 La. 637, 175 So. 441 (1937), which held that either party to a partition proceeding may seek enforcement of a judgment of partition because such a judgment is deemed to belong to all parties concerned since it affects all owners alike. The court also noted that to hold otherwise would permit the party obtaining the judgment to defeat partition by the simple expedient of not seeking enforcement. While Blunson did so hold, we note that it also held that when a judgment of partition was executed on application by a party other than the one in whose favor it was rendered, the party who obtained the judgment is entitled to notice at least in the nature of a rule to show cause why execution should not take place. No such notice was given in this instance.

La.C.C.P. Article 2002 provides that a judgment shall be annulled if rendered against a defendant who, inter alia, has not been served with process and who has not entered a general appearance, or against whom a valid judgment by default has not been taken.

We are cognizant of La.C.C.P. Article 1313 which provides for service on one’s counsel of record of pleadings which require no appearance or answer, by mailing or delivering a copy thereof to such party’s counsel of record. Assuming, for argument’s sake, that the pleadings filed by Appellees to execute the judgment of partition are such that may be served on counsel of record pursuant to Article 1313, such service, under the circumstances of this case, must be deemed fatally defective. The obvious purpose of Article 1313 is to fulfill the constitutional requirements of due process notice as set forth, for example, in Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). To meet such requirements, notice to counsel of record must be effected under circumstances from which it can at least be reasonably presumed that notice resulting from such service will be communicated to the litigant. In this case, no such presumption can result. Moreover, the record establishes beyond doubt that service was made on counsel known by Ap-pellees’ attorney to have previously withdrawn as counsel. The fact that said attorney remained technically counsel of record does not render such service valid under the circumstances attending this matter. The record establishes that Appellant had no knowledge of the proceedings to execute the partition judgment until after the partition sale. Appellees’ argument that appellant has lost his right to seek a nullity of the judgment under La.C.C.P. Article 2003 since Appellant was present in the parish at the time of execution of the judgment and did not attempt to enjoin its enforcement is also without merit as this interpretation of La.C.C.P. Article 2003 would render it unconstitutional. Appellant’s presence in the parish at the time of execution cannot be used as a substitute for the kind of notice described in Mullane. We find that the partition sale is null and void for lack of proper service on Appellant and that the trial court erred as a matter of law in failing to declare said proceedings null and void.

Concerning Appellant’s claims for damages, the record is devoid of proof of fraud or ill practice on the part of Appellees in enforcing the judgment of partition. We also find no merit in Appellant’s contention that enforcement of the partition decree was a violation of the previously issued injunction prohibiting Bogalusa from enforcing its mortgage. Bogalusa did not attempt to enforce the mortgage. Bogalusa merely bid in the property at a partition sale ordered by judgment of court.

We find that the trial court’s determination of lack of proof of causal relationship between Appellees’ acts and Appellant’s mental problems is fully supported by the record. Appellant established a history of mental problems, including bizzare and sometimes violent episodes preceding his discharge from military service in 1941 for emotional instability. Following his discharge, Appellant continued to be plagued with recurring episodes evidenced by irrational conduct consisting of violent outbursts. Appellant was hospitalized for treatment of his condition in both a state and a federal mental institution. It also appears that Appellant’s married life was characterized by frequent disputes with his former wife. In essence, Appellant sought to establish that his mental condition and also a heart condition were aggravated by Appellees’ conduct.

To establish causal connection, Appellant produced two experts, Dr. Isidore I. Rosen, a general practitioner and Dr. James Hill, a psychiatrist. In effect, these experts testified that it is within the realm of possibility that the apparent loss of his home could have aggravated Appellant’s condition, but to so find from a medical viewpoint would be speculative. This will not suffice. The burden of proof rests upon plaintiff to prove claimed damages to a legal certainty and by a preponderance of evidence. Proof which amounts only to a mere possibility and which establishes a speculative claim only does not discharge plaintiff’s burden. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971); Carpenter v. National Food Stores, Inc., 278 So.2d 570 (La.App. 1st Cir. 1973).

Bogalusa’s third party demand against Benjamin Miller is dismissed because Bogalusa failed to prove any negligence on Miller’s part and because Bogalusa prayed only for reimbursement of any damages for which they may be liable and no damages were awarded plaintiff-appellant.

The judgment of the trial court rejecting Appellant’s action of nullity is hereby reversed and set aside and judgment is rendered herein decreeing null and void that certain judgment rendered February 8, 1968, in Suit Number 25,082 consolidated with 25,199 on the docket of the 22nd Judicial District Court, Washington Parish, ordering sale of the community property belonging to the community between Cullen Rawley and Betty Seals Rawley, and the Sheriff’s sale of the property to Bogalusa Loan Corporation dated April 3, 1968, and said sale is ordered cancelled and erased from the public records of Washington Parish.

It is further ordered, adjudged and decreed that except as reversed herein, the judgment is affirmed; all costs of these proceedings to be paid by Appellees herein.

Affirmed in part and reversed in part and rendered.

ON APPLICATION FOR REHEARING

PER CURIAM.

On application for rehearing Appellant, Cullen Rawley, assigns numerous alleged errors, including, inter alia, our failure to describe the property involved herein.

We have considered all alleged errors and find merit only in the contention that we should have described the property involved in this litigation as provided by La.C.C.P. .Article 1919.

Accordingly, it is ordered, adjudged and decreed that our original decree be and the same is hereby amended to reverse the judgment of the trial court ordering the sale and also annulling the sale or sales, pursuant thereto of the following described property, to-wit:

(1) The South (S) half of the following described tract of land:
A certain parcel of land described as beginning at the Northwest (NW) corner of Headright Forty Six (46), Township Three (3) South, Range Thirteen (13) East, and run South (S) along the line between Headrights Forty Six (46) and Fourteen (14) of the above Township and Range, a distance of Seven Hundred Eighty Seven (787) feet to the Point of Beginning, being in the Northeast (NE) Corner of the lot herein described; Thence run South (S) One Hundred Four and Vio (104.5) feet; Thence run West (W) One Hundred Nine (109) feet; Thence run North (N) One Hundred Four and 5/io (104.5) feet; Thence run East (E) Two Hundred Nine (209) feet to the Point of Beginning.
(2) Two (2) acres of land located in Section Sixteen (16), Township Four South (4), Range Thirteen (13) East, and described as follows:
Commencing at the Northeast (NE) corner of Section Sixteen (16), Township Four (4) South, Range Thirteen (13) East, run in a Westerly (W) direction Two Hundred Eighty and Vio (280.4) feet whence a stob; Thence run South (S) Six Hundred Twenty Six and Vio (626.1) feet to an iron pipe and the Point of Beginning; Thence run South (S) One Hundred Fifty Six and 6/io (156.5) feet to an iron pipe; Thence run West (W) a distance of Five Hundred Fifty Six and %o (556.6) feet to an iron pipe; Thence run North (N) a distance of One Hundred Fifty Six and Vio (156.5) feet to an iron pipe; Thence run East (E) a distance of Five Hundred Fifty Six and 6/io (556.6) feet to the Point of Beginning.
As per survey of R. R. Porter, Civil Engineer, dated October 22, 1966.
Acquired by Eloise D. Askew in Conveyance Book 187, page 301 of the records of Washington Parish, Louisiana.

The application for rehearing is denied.


text:
    Willie C. ACKER v. BOARD OF TRUSTEES OF PASS CHRISTIAN MUNICIPAL SEPARATE SCHOOL DISTRICT.
    No. 50153.
    Supreme Court of Mississippi.
    March 8, 1978.
    Rehearing Denied April 26, 1978.
    Gerald Blessey, Paul S. Minor, Biloxi, for appellant.
    Jason H. Floyd, Jr., Gulfport, for appel-lee.
    Before SMITH, P. J., ROBERTSON and LEE, JJ., and FRED P. WRIGHT, Commissioner.
   AFFIRMED.


author: BOWLING, Justice,

text:
    Robert L. GROOMS, Jr. v. STATE of Mississippi.
    No. 50339.
    Supreme Court of Mississippi.
    March 29, 1978.
    Rehearing Denied April 26, 1978.
    Cunningham, Smith & Ferrell, John A. Ferrell, Booneville, for appellant.
    A. F. Summer, Atty. Gen. by Catherine W. Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, BROOM and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Robert L. Grooms, Jr., was indicted, tried and convicted in the Circuit Court of Pren-tiss County for the crime of murder. The lower court sentenced him to serve a life term under the jurisdiction of the Mississippi Department of Corrections. We affirm.

Appellant presents two assignments of error, to wit: (1) The trial court erred in failing to grant appellant a new trial as the verdict was contrary to the law and facts and against the overwhelming weight of the credible evidence, and (2) the trial court erred in allowing the testimony of Mrs. Crystal Smith relative to prior threats made against the deceased by the appellant. Due to the alleged error contending the verdict to be against the overwhelming weight of the credible evidence, it is necessary to discuss that evidence briefly.

On the night of September 3, 1976, the deceased, William Ervin (Jack) Smith was struck on the head. He died on September 10, 1976, from this injury. Appellant, Robert L. Grooms, Jr., and witness J. L. Essary, each claims that the blow was struck by the other.

Essary was the first witness for the State. He testified that on the afternoon of September 2, 1976, he and appellant went from Booneville to Baldwyn around noon and stayed until nearly four o’clock P.M. During that period of time he and appellant drank about four beers. They returned to Booneville but left that city around 6:30 P.M., after taking Essary’s family to spend the night at the Grooms residence. According to Essary, he and Grooms stayed and visited in Baldwyn until around 11:15 or 11:45 P.M., during which time they partook of further alcoholic beverages. He testified that after they left Baldwyn, Grooms suggested going by the home of his father-in-law, Jack Smith, who lived out in the country near Jumpertown, and they arrived there around one o’clock A.M. Smith lived in a very small house and after waking Smith, the three talked for a time. According to Essary, Grooms then went outside and called him and told him he was going to kill Smith. Essary thought he was kidding and went back inside. Grooms then, according to Essary, came into the room with a piece of pipe and after distracting Smith’s attention to another part of the room, he struck Smith over the head with the pipe. Grooms then ran out the door and Essary caught up with him and they got in the car and went back to Boone-ville. On the way, Grooms told Essary to throw the pipe out the window, which he did.

Grooms and Essary then went to the Grooms’ residence where, according to Es-sary, Grooms told his wife that he had hit her father and thought he had killed him. The two of them, that is, Grooms and his wife, decided to go to the Smith residence and check on her father. Essary stated he later learned that Smith was in a hospital in Tupelo. He further testified that Grooms told him that he would kill him if he said anything about the incident. Essary testified that he went to the office of the sheriff on Sunday night, September 5, after hearing that Smith was “going to die.” He testified that he then told the sheriff and his deputies what had occurred.

Pam Essary, J. L. Essary’s wife, testified that she was spending the night of September 2 in the Grooms’ residence; that Grooms and J. L. came to the Grooms’ house about two or three o’clock the next morning, and she heard Grooms tell his wife Kay that he had hit her father on the head and was afraid he was dead. Grooms said they should go back and if Smith was not dead he should finish killing him. Grooms and Essary went to get gasoline and she went to bed. The next dai Grooms told her that his father-in-law was! still alive. She testified that the night J. L. told the sheriff about the incident Grooms came by the house and threatened her if she told anyone what he had done.

Witness Wren lived near the deceased. He testified that about seven o’clock A.M., on September 3, Grooms and his wife called the sheriff’s office from Wren’s house. We went to the Smith home and found him unconscious on the bed with blood on his pillow.

Deputy Sheriff Anderson testified about talking with Essary and about searching for the death weapon with Essary. It was not found that day but was later found and marked. Anderson was sure he had found the instrument on September 4.

Dr. Forrest Tutor, a neurosurgeon, testified about Smith’s injuries; that Smith had died from a blood clot on his brain resulting from a blow to his head.

Sheriff Martin testified that he and Deputy Anderson found the pipe and that Grooms was arrested on Monday or Tuesday following the incident but he did not make a statement at that time. He testified on cross-examination that later Grooms told him “I did not do it.” He' admitted that it was J. L. Essary’s information that led to the arrest of appellant.

Appellant testified in his own defense. He stated that he did not see J. L. Essary on September 2, 1976, until around five o’clock P.M. The two of them went to Baldwyn to the Bavarian Inn and then to Lee-Ann’s Restaurant, where they stayed until 11:45 P.M. He testified they purchased a half case of beer and then rode around. They ended up at the house of his father-in-law, Jack Smith. Grooms testified that he went outside the house and Essary followed him and told him he was going to knock Smith in the head and take his money. Grooms said he thought it was a joke, the same as Essary had previously testified about the alleged statement of Grooms. Appellant testified that Essary went back in the house and that a “thump” was heard, and he saw Jack Smith leaning back in the bed. The next thing he knew he was walking down the road, and the reason for so doing was because he was scared. He testified that he was looking out the door and did not see Essary hit Smith. He testified that Essary told him he was going to hit Smith and begged him not to tell anyone.

When he arrived at his home in Boone-ville, Essary’s wife let them in and then she went back to bed. Appellant then testified that he told his wife that her father had been hit but she did not believe him. Es-sary then said, according to appellant, that he had just as soon go back and make sure the job was finished. The two of them went and got some gas in the car and the three, Grooms, his wife, and Essary, started back toward the Smith house, but on the way they met a hearse and thinking that it contained Smith, they turned around and went back home. The next morning, according to appellant, he and his wife went to the Smith house and found him on the bed unconscious. They “cleaned him up” and went next door and called the sheriff. Grooms testified that he loved his father-in-law “like my own daddy” and would not kill him.

Appellant’s wife, Kay Grooms, testified that when Grooms and Essary came in on the night in question, her husband told her that her father had been hurt and they needed to go check on him. She heard Essary say he would go finish the job. She testified that they started to the Smith house that night but did not go all the way because they met a hearse on the road. The next morning she and appellant went to her father’s house and found him unconscious. She testified that appellant never said he had hit her father but told her it was Essary that hit him. She testified that she did not talk to the sheriff about the matter until about a week after her husband had been arrested because she thought her father would live and could eventually tell that Essary was the one who had hit him.

Chester Ward, Chief of Police of Baldwyn, with fourteen years of law enforcement experience, testified that he knew J. L. Essary and his reputation in the community for truth and veracity was bad.

Jackie Hamblin testified that around four o’clock A.M., on September 3, the appellant came to his house to borrow some gas. Grooms told him then that Essary had hit Smith and that they were going to see about him. He further testified that Es-sary was not present when Grooms told him about the incident.

In rebuttal, the State first offered Geneva Edge, the sister of witness Hamblin. She testified that Hamblin told her that on the night of the incident Grooms and Es-sary came to his house and Grooms told him he was afraid he had killed Smith.

Ray Smith, son of the deceased and brother of Kay Grooms, testified that Kay talked with him the day after their father underwent an operation; that she told him she knew her husband had killed their father, but she could not testify against him as he would kill her.

Crystal Smith, wife of Ray Smith, testified that a week or a week and a half before September 3, 1976, she saw Grooms and he told her that he was going to kill Jack Smith or “whip his ass and the better man would win.” She testified they were just sitting around talking when Grooms made that statement.

ASSIGNMENT OF ERROR NO. 1

Was the verdict of the jury contrary to the law and facts and against the overwhelming weight of the credible evidence?

From the foregoing discussion, it is clear that the testimony was in direct conflict. Grooms and Essary each stated the other struck Smith. The testimony of other witnesses was conflicting as to what each later related about the occurrence. This Court has held in a number of cases similar to this case that such conflicting evidence is for the jury to resolve. As stated in Barrett v. State, 329 So.2d 67 (Miss.1976), this Court recognized the awesome duty of the jury but adhered to the principle that the jury who observes the witnesses and hears the evidence is best able to determine the truth and credibility of the witnesses. In the case of Murphree v. State, 228 So.2d 599 (Miss.1969), the Court said:

Appellant contends that the trial court erred in refusing to grant the appellant a peremptory instruction and in overruling a motion for a new trial. The motions were properly overruled because the evidence was conflicting and the jury is the sole judge of the credibility of witnesses and the weight and worth of their testimony. This wise rule applies with equal force to the State’s witnesses as to the appellant’s witnesses, including the appellant. We have repeatedly held that jurors may accept the testimony of some witnesses and refuse that of others, and that they may accept in part and reject in part the evidence on behalf of the State and on behalf of the accused. McLelland v. State, 204 So.2d 158 (Miss.1967); Cobb v. State, 235 Miss. 57, 108 So.2d 719 (1959); Ivey v. State, 206 Miss. 734, 40 So.2d 609 (1949); Hill v. State, 199 Miss. 254, 24 So.2d 737 (1946). It is not for this Court to pass upon the credibility of witnesses, and where the evidence justifies the verdict it must be accepted as having been found worthy of belief. McLelland v. State, supra; Matthews v. State, 243 Miss. 568, 139 So.2d 386 (1962); Scott v. State, 185 Miss. 454, 188 So. 546 (1939). It is obvious that this Court cannot set aside a verdict of guilty unless it is clear that the verdict is the result of bias, passion or prejudice or is manifestly against the overwhelming weight of the credible evidence. McLelland v. State, supra; Marr v. State, 248 Miss. 281, 159 So.2d 167 (1963); Henderson v. State, 187 Miss. 166, 192 So. 495 (1939). Furthermore, all the proof need not be direct and the jury may draw any reasonable inferences from the evidence in the case. McLelland v. State, supra; Woodward v. State, 180 Miss. 571, 177 So. 531, 178 So. 469 (1938).

We are forced to the conclusion that the jury had ample evidence to find that appellant was the person who struck Smith on the head with the pipe. We cannot say with any degree of certainty that the finding of the jury was against the overwhelming weight of the evidence.

ASSIGNMENT OF ERROR NO. 2

Did the court err in permitting witness Crystal Smith to testify that a week or a week and a half before September 3 she had heard appellant threaten to kill Jack Smith?

We have held in several cases that threats made by an accused to kill the deceased uneommunicated to the deceased are admissible in evidence. These threats show malice, premeditation or criminal intent. Herron v. State, Miss., 287 So.2d 759, cert. denied 417 U.S. 972, 94 S.Ct. 3179, 41 L.Ed.2d 1144 (1974); Ladner v. State, 197 So.2d 257 (Miss.1967); Lambert v. State, 171 Miss. 474, 158 So. 139 (1934); Myers v. State, 167 Miss. 76, 147 So. 308 (1933). We further have held that should the alleged threat be so remote as to be of no evidentia-ry value it should not be admissible. Myers v. State, supra. In Sharplin v. State, 330 So.2d 591 (Miss.1976), we held that the trial judge did not abuse his discretion in allowing evidence of a conditional threat made by the accused two months before the killing of the deceased. Whether or not a threat is too remote to be admissible is a question addressed to the sound discretion of the trial judge. We hold that the lower court was completely within its discretion in holding that the alleged threat made in the presence of witness Crystal Smith was admissible.

We can find no reversible error in the record in this case.

AFFIRMED.

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


author: ROBERTSON, Justice,

text:
    WHOLESALE MATERIALS COMPANY, INC. v. MAGNA CORPORATION, d/b/a Mississippi Steel.
    No. 50152.
    Supreme Court of Mississippi.
    March 29, 1978.
    Rehearing Denied April 26, 1978.
    J. B. Van Slyke, Jr., Hattiesburg, L. Arnold Pyle, Jackson, for appellant.
    Tighe & Tighe, B. Stirling Tighe, Jackson, for appellee.
    Before SMITH, ROBERTSON and LEE, JJ.
   ROBERTSON, Justice,

for the Court:

On February 10, 1975, Magna Corporation, doing business as Mississippi Steel, filed suit on open account in the Circuit Court of Forrest County against Wholesale Materials Company, Inc., for $59,668.95, the balance due on sales of steel reinforcing rods from July, 1972, to October, 1974.

Wholesale answered and counter-claimed, alleging that it had overpaid Mississippi Steel in the sum of $17,902.05.

After a full trial, the court, sitting as judge and jury, on October 15, 1976, rendered judgment for Mississippi Steel, for $69,799.47, being $59,668.95 principal and $10,130.52 interest.

Wholesale has appealed, assigning as error that the court erred in holding that there was no confirmatory memoranda received by Mississippi Steel, and that the provisions of the Statute of Frauds of the Uniform Commercial Code [Miss.Code Ann. sec. 75-2-201 (1972)], applied and made unenforceable the alleged oral contract to sell steel reinforcing bars at fixed prices to Wholesale. Section 75-2-201 provides in part:

“(1) Except as otherwise provided in this section, a contract for the sale of goods for the price of five hundred dollars ($500.00) or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.
“(2) Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within ten (10) days after it is received.” [Emphasis added].

Appellant contended that about April 19, 1972, J. W. McLaughlin, its president, met with W. J. Califf, Jr., vice-president of sales of appellee, at the Sun-n-Sand motel in Jackson, Mississippi, and at that time entered into an oral contract providing that appellee would sell and deliver to appellant about 2,900,000 pounds of steel reinforcing bars at a fixed base price of $5.90 per hundred pounds until December 31, 1972, and at a fixed base price of $6.35 per hundred pounds after January 1, 1973.

McLaughlin testified that he, for the appellant, wrote a letter of confirmation on April 20, 1972, to Mississippi Steel. McLaughlin explained appellant’s office procedure:

“We have a regular system like all other companies would have. We have the secretaries type the letters out, then they bring them in for my signature and they place them into envelopes and mail them out.”

That letter reads:

[Letterhead of WHOLESALE
MATERIALS COMPANY]
HATTIESBURG, MISSISSIPPI
April 20, 1972
Mississippi Steel Corporation
P. O. Box 5780
Pearl Branch
Jackson, Mississippi 39208
Attention: Mr. Bill Califf
Dear Bill:
To confirm your proposal concerning the Empire Louisiana Bridge Project, I am listing below, the essential cost, and profit potential that we agreed to yesterday at the Sun & Sand, for our file.
First, we are paying $5.90 base plus equalized freight of 27 [cents], plus the standard size extras, and will pay this price until December 31,1972, after January 1, 1973, then the base price could go up to $6.35 plus equalized freight and present size extras but no higher throughout the completion of the job.
After our discussions yesterday at the Sun & Sand we are seriously considering joining you and Mississippi Steel Corporation in this venture, particularly after your agreement to furnish exact cut length bars off the mill on quantities of 40,000 lbs. or more of a size and length. This would cut our fabricating cost tremendously, plus almost eliminate drops and speed up our bending.
I know you want to sell this large tonnage and Wiley as your director would like to favor you with the business with the market the way it is, however, he said to provide him with a breakdown, so that he could be sure that:
(1) We could work with you and furnish this job at a profit to Wholesale Materials Co., Inc. and
(2) That you and Wholesale Materials Co., Inc. could furnish materials as needed on the job.
these are his only concerns.
With sizes 3 thru 11 being used, you recommend that we use # 5 or #6 bar as a price build-up, for average size extra. Now, as you outlined, we are forwarding him our cost as follows:
I agree with you that our total cost should run (with luck) less than $8.00 cwt. This should give Wholesale Materials Co., Inc. a minimum margin of $29,000.00 on the job after final quantities are completed.
The rebars you agree to furnish for this project will be the estimated plan quantities or actual quantities whichever is greater, after approved bar lists have been received.
Very truly yours,
WHOLESALE MATERIALS CO., INC.
/s/ J. W. McLaughlin
J. W. McLaughlin,
President
JWM:yl

No further testimony was adduced as to the actual mailing of this letter.

McLaughlin also testified that he prepared a, comprehensive purchase order on July 27, 1972, addressed to Mississippi Steel and embodying the terms of the oral contract, and that a copy of the purchase order was placed in the file of the Empire, Louisiana, project of W. R. Fairchild Construction Company. No testimony was adduced as to the mailing of the purchase order.

Califf testified positively and unequivocally that he never received the letter of April 20, 1972, nor the purchase order of July 27, 1972.

Appellant and appellee had dealt with each other for at least ten years. The usual procedure was for Wholesale to place orders by telephone, and Mississippi Steel would ship out the orders and bill Wholesale at prevailing market prices. This was the procedure followed on the Empire, Louisiana, job.

From July, 1972, until April 2, 1973, orders shipped to Wholesale were billed to it at $5.79 base price per hundred pounds, and from April 3, 1973, until July 17, 1973, shipments of steel reinforcing bars were billed to Wholesale at $5.90 base price per hundred pounds. On billings after July 17, 1973, the base price was $6.35 per hundred pounds.

On September 7, 1973, the prevailing market price went above $6.35 per hundred pounds, and appellee’s prices, as reflected in its billings of appellant, went up accordingly. McLaughlin testified that he protested over the phone to Cotton Caldwell, president of Mississippi Steel, and that Caldwell told him that the price of steel had gone up and, in order to stay in business, Mississippi Steel had to raise prices.

Later McLaughlin protested to Califf, and finally asked for a hearing before the Board of Directors of Mississippi Steel. Caldwell turned down McLaughlin’s request, on the basis that this was a managerial or administrative decision, to be made by the officers of the corporation, and not by the Board of Directors. Finally when the Empire, Louisiana, job was concluded in October, 1974, and Wholesale refused to pay the balance due according to the appellee’s figures, suit was filed on February 10,1975.

Under Section 75-2-201(2), it is imperative that the writing in confirmation of an oral contract be received by the party against whom its terms will be asserted, so that that party will have notice and an opportunity to object if the terms were not as stated in the writing.

Before section 75-2-201 supplemented the old Statute of Frauds as to dealings “between merchants”, it was required that:

“[T]he promise or agreement upon which such action may be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith or signed by some person by him or her thereunto lawfully authorized in writing.” Miss.Code Ann. sec. 15-3-1 (1972). (Emphasis added).

Since failure to object in writing within ten days would estop the party to whom the confirmation writing is addressed, it becomes absolutely necessary that such party receive the confirmatory writing. It would be a simple matter for the sender of the confirmatory writing to mail it by Registered Mail — Return Receipt Requested. That was not done in this case, and no proof was adduced that appellee received the letter of April 20, 1972.

We think that the trial court was correct when it found that:

“11. There were no confirmatory memoranda between the parties under which they made any agreement with respect to sale of reinforcing steel, bars or any confirmatory memoranda otherwise setting forth in a writing an intention by the parties as a final expression of any agreement between them.
“12. There was no course of dealing or usage of trade between or with respect to the parties indicating that Defendant had bought from Plaintiff and Plaintiff had sold to Defendant under oral contracts steel reinforcing bars at a fixed and certain price for periods prior to July 1972.
“13. Plaintiff never received any written purchase order from Defendant with regard to the purchase and sale of steel reinforcing bars in this action and thereby there was no acceptance of any offer by Plaintiff set forth in any written purchase order by virtue of the sale, delivery and shipment of reinforcing steel bars by Plaintiff to Defendant.”

Not having complied with the requirements of Section 75-2-201(2) to remove the alleged oral contract from the statute of frauds, we find, as did the trial court, that the statute of frauds applied.

The judgment of the lower court is, therefore, affirmed.

AFFIRMED.

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


text:
    T. L. CUNNINGHAM v. STATE of Mississippi.
    No. 50297.
    Supreme Court of Mississippi.
    March 29, 1978.
    Rehearing Denied April 26, 1978.

      Walker & Turner, Bennie L. Turner, West Point, for appellant.
    A. P. Summer, Atty. Gen., by Wayne Snuggs, Special Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, ROBERTSON and LEE, JJ.
   ROBERTSON, Justice,

for the Court:

T. L. Cunningham was indicted by the grand jury of the Circuit Court of Clay County for the murder of Leo Davis. The jury returned a verdict of guilty; the court sentenced Cunningham to life imprisonment.

On the night of January 13,1976, defendant Cunningham, Wiley Ewing, Jr. and James Nealy went to the country store of Leo Davis in the western part of Clay County to rob him. They planned the robbery as they rode around in Nealy’s car on the afternoon of the 13th.

Ewing testified that Nealy said “we might have to kill Mr. Davis”, the reason being that Davis knew all three of them. Ewing and Cunningham agreed.

In carrying out their plan, Cunningham knocked on the door and Davis admitted them. Nealy hit Davis across the head with a shotgun, and Ewing stabbed Davis about the head and cut his throat from ear to ear. Cunningham started getting the money out of the cash register.

When Davis raised up from the floor, Nealy hit him again with the shotgun, Ewing stabbed him again, and Cunningham kicked him in the face. In addition to the money in the cash register, they took two $100 bills off of Davis.

Davis was dead when they found him in the store in a pool of blood early the next morning.

The appellant assigned these six errors:

I. The verdict of the jury was contrary to the overwhelming weight of the evidence;
II.The court erred in admitting into evidence the hearsay statement of James Nealy: “We might have to kill Mr. Davis”;
III. The trial court committed reversible error in refusing instruction D-16;
IV. The trial court committed reversible error by stating before the jury: “I am going to wear this jury out running them in and out”;
V.The trial court committed reversible error in denying appellant’s motion for a change of venue;
VI. The trial court committed reversible error in overruling appellant’s motion for a new trial on the ground that the state knowingly used false evidence in the trial of this case.

The testimony of Wiley Ewing Jr. was clear, positive and uncontradicted that Cunningham was in on the planning of the robbery as they rode around in Nealy’s car the afternoon before the robbery, and that Cunningham heard Nealy say “We might have to kill Mr. Davis”, and that Cunningham made no protest.

The testimony was uncontradicted that Cunningham actively participated in the robbery as planned and that the money taken was divided among the three of them.

In Eakens v. State, 289 So.2d 687 (Miss.1974), this Court said:

“ ‘Where parties combine to commit crime, the law imputes the guilt of each to all thus engaged, and pronounces all guilty of any crime committed by any, in the execution of the common purpose, as one of its natural and probable consequences, even though none of the parties intended at the outset to do the particular thing constituting the crime.’
“[I]t need not be that the design is to commit the particular crime which is subsequently committed, but there must be a preconcerted plan to do some unlawful act. A common purpose being shown, all are guilty for the acts of any one of his confederates committed in pursuance of such purpose, even though not included in the original plan.” 289 So.2d at 689.

The remark of Nealy, that “We might have to kill Mr. Davis”, was clearly admissible under the co-conspirator rule. The Supreme Court of Florida said, in Damon v. State, 289 So.2d 720 (Fla.1974):

“It is the law of this State that every act and declaration of each member of a conspiracy is the act and declaration of them all and is therefore original evidence against each of them.
“ ‘[BJefore the “co-conspirator rule” may be invoked there must first be independent evidence of the existence of a conspiracy, and of the objecting party’s participation in it. In other words, proof of a conspiracy is necessary for the purpose of establishing the criminal liability of the conspirators for the unlawful acts of their co-conspirators in furtherance of the common cause.’ ” 289 So.2d at 722.

There is no merit to the contention that the trial court committed reversible error in refusing instruction D-16. That instruction was an erroneous statement of the law as applied to the facts of this case, and was properly refused by the trial court.

The remark complained of in appellant’s fourth assignment of error was:

“BY THE COURT: I am going to wear this jury out running them in and out. I have to hear this motion outside the presence of the jury. The bailiff will take the jury out.”

We do not think this was an improper statement, but, even if it were, any possible harm was certainly laid to rest when the court explained:

“I made a remark earlier that might have been misunderstood, and I certainly hope it wasn’t. In the course of a trial, it is necessary at various times that the court hear things outside the presence of the jury, and really it was intended as an apology to you for that necessity. However, it is not to be be blamed on anyone, or any of the lawyers involved. That is just the way the law is.”

No error was committed in denying appellant’s motion for a change of venue. The crime was committed on the night of January 13, 1976; the hearing on the motion was on June 30, 1976. Five witnesses testified against the motion for change of venue, and three testified in favor of it. The coui’t properly overruled the motion. The actual trial was not until January 26, 1977. Cunningham merely stated on January 26, 1977, that he was renewing his motion for a change of venue, but put on no new evidence. The court again properly overruled the motion.

There is no merit in appellant’s last assignment of' error. There was not one scintilla of evidence that the testimony of Robert Townsel was false and that the tape recording demonstrated the falsity of his testimony’. The trial court listened to the tape and found that the tape corroborated Townsel’s testimony. Moreover, the defendant was furnished this tape prior to trial, and if there were any differences between the tape and Townsel’s testimony, the defendant should have made a contemporaneous objection while Townsel was testifying. This was not done. It was too late to make this contention for the first time on a motion for a new trial.

There being no error in the record, the conviction and sentence are affirmed.

AFFIRMED.

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


text:
    CITY OF JACKSON v. Mrs. Chesta M. HUGHES.
    No. 50211.
    Supreme Court of Mississippi.
    April 5, 1978.
    Rehearing Denied April 26, 1978.
    John E. Stone, Davis H. Smith, Jackson, for appellant.
    Watkins & Eager, James A. Becker, Jr., John L. Low, IV, Jackson, for appellee.
    Before SMITH, P. J., and LEE and COF-ER, JJ.
   AFFIRMED.


author: COFER, Justice,

text:
    S. H. LAMBDIN, III, et al. v. Waldo P. LAMBDIN et al.
    No. 49994.
    Supreme Court of Mississippi.
    April 5, 1978.
    Rehearing Denied April 26, 1978.

      Shell, Buford, Bufkin, Callicutt & Perry, Richard S. Bush, Jackson, for appellants.
    Zuccaro, Riley, Pintard & Brown, J. Walter Brown, Jr., Natchez, for appellees.
    Before SUGG, WALKER and COFER, JJ.
   COFER, Justice,

for the Court:

This cause is in this Court by appeal from the Chancery Court of Adams County.

In the 1920’s S. H. Lambdin, one of appel-lees, bought a farm near Natchez, and gave it to his wife, Mrs. Mary H. Lambdin. The farm contains 137 acres, more or less, called “Mistletoe”, with an antebellum home situate on it, at times included in the Natchez Pilgrimages. On April 22, 1959, the said Mrs. Lambdin, as settlor, established an inter vivos trust, to be known as the “Mary H. Lambdin Trust,” with the said S. H. Lambdin, her husband, as its income beneficiary for his life; on his decease, the trust property was to pass, in equal parts, to S. H. Lambdin, Jr., and Waldo P. Lambdin, her two sons, or to their descendants per stirpes. She provided that the trust might be continued during the minority of any descendant who should take any of the trust property during such minority. S. H. Lambdin, Jr., died on May 19, 1962, leaving four descendants within the meaning of the trust instrument, two of whom are minors and have their mother, Mrs. Mattie Jo Rat-cliffe, the widow of S. H. Lambdin, Jr., as their guardian. The settlor placed $500 in the trust initially.

Mrs. Mary H. Lambdin executed her last will and testament on August 12, 1963, wherein she left to her husband a life estate in the “Mistletoe” property, including the furnishings in the home, subject to which life estate she left all her property to the trustees of the trust, the trustees then being her husband, S. H. Lambdin, Sr., Waldo Lambdin, and W. Howard Pritchartt, Jr. On October 12, 1965, she executed a codicil to her will, pertinent part of which reads: “If my son Waldo Lambdin wishes to live at ‘Mistletoe’, he may pay $20,000.00 to S. H. Lambdin, Jr.’s four children and take the house and land.”

The settlor-testatrix departed this life on March 18, 1968. Thereafter a question on the interpretation of the above-quoted sentence from her codicil brought about a contract, dated November 3, 1970, executed by Waldo Lambdin, individually, and Waldo Lambdin, S. H. Lambdin, and W. Howard Pritchartt, Jr., trustees of the trust, and the guardian of the four children of S. H. Lambdin, Jr., deceased, all of whom appear to have been minors at that time. In the contract it is said, in part:

(7) All of the parties hereto recognize and agree that by the terms of the codicil to her will, Mary H. Lambdin intended to give and did give her son, Waldo P. Lambdin, an option to purchase for the sum of $20,000 the interest in “Mistletoe Farm” which she had devised to her son, S. H. Lambdin, Jr., (or his descendants, or the trustees for his descendants as the case may be), and that she specified no time within which the option should be exercised, thereby creating an indefiniteness and uncertainty as to the title to the property, which could result in future controversy to the detriment of all the parties hereto.

By the instrument they then agreed that the option “may be exercised by Waldo P. Lambdin at any time within the six month period after the date of the death of his father, S. H. Lambdin,” and “In the event of the death of Waldo P. Lambdin before the option is exercised, the option and all of his rights thereunder shall thereupon and forthwith terminate.”

On January 16, 1976, S. H. Lambdin and Waldo P. Lambdin, both individually, and they, joined by W. Howard Pritchartt, Jr., trustee, who did so to waive process and enter his appearance as trustee “to consent to the sale of the property . . . upon approval of the Court,” filed petition, making the children of S. H. Lambdin, Jr., and the guardian of the two of the S. H. Lamb-din, Jr. children who were still minors, defendants, and praying that the court approve sale of “Mistletoe” to Waldo P. Lambdin, and that it find the proposed sale to be no breach of any fiduciary relation between any of the trustees and the beneficiaries of the trust, and that the sale to Waldo P. Lambdin be for $40,000 to be placed in the trust estate, and that it “remove and terminate the doubt, cloud and suspicion upon the title of ‘Mistletoe’ made by Mrs. Mattie Jo Ratcliffe” (the guardian).

The petitioners exhibited the 1970 contract to their petition, averring that it in effect granted an option to Waldo P. Lamb-din to purchase “Mistletoe” in accordance with its terms. They averred, as justification for their petition for present relief, that S. H. Lambdin, life tenant, had lived on “Mistletoe” since the passing of his wife, that he has approached Waldo P. Lambdin on several occasions to live with him on “Mistletoe” in accordance with the wishes of S. H. Lambdin, as well as the wishes of his wife, which wishes he has made known to all beneficiaries of the trust, and that Waldo P. Lambdin desires to move onto “Mistletoe” to look after and to care for his father in his declining years, but, to accomplish the expressed desire, renovation necessary to make sufficient living quarters for all who would be living there would be necessary entailing large money expenditure, and known to the other parties is their desire to exercise the option of his mother and purchase the property in exchange for $20,000 to the children of S. H. Lambdin, Jr., deceased; that the widow of S. H. Lambdin, Jr., has objected to their desire and proposal and declined to participate in the transaction, but that petitioners believe the children of S. H. Lambdin, Jr. would have no objection thereto, except that those of them who have become of age do not desire to go against their mother’s wishes; that petitioners believe it would be to the best interest of the trust and all parties and in the furtherance of the wishes of the settlor that they now be authorized in accordance with their prayer, but the objections of the widow of S. H. Lambdin, Jr., raised a cloud, doubt, and suspicion upon any deed made by the trustees, and, because thereof, they now invoke the aid of the Court, pursuant to the terms of the trust, asserting the trustee’s right to adjust any claim made against the trust property, and that the objector’s protest constitutes a claim adverse to the trust, and that the Court should find that the trustees have all authority to sell any part of the trust including “Mistletoe”, if deemed by them to be for the best interest of the trust, and that the Court should find it to be best interest thereof.

They allege that Waldo P. Lambdin has further offered to pay an additional $20,000 into the trust for the benefit of his beneficiaries in the trust, resulting in a payment of $20,000 for the benefit of the beneficiaries of S. H. Lambdin, Jr., and $20,000 for Waldo P. Lambdin’s own beneficiary, and so that the life tenant can be drawing interest as provided in the trust, on the entire $40,-000 during his lifetime, which $40,000 is deemed adequate owing to the life estate in S. H. Lambdin, and Waldo P. Lambdin’s option; that the said S. H. Lambdin is in general good state of health, 76 years old, with a total life expectancy of 80 years, and they believe the trust estate’s best interest would be served by the immediate proposed sale to prevent rapid deterioration and depreciation and to provide S. H. Lambdin a' home with his son and the security of such a home, and to obviate the future necessity of S. H. Lambdin’s removal from his longtime home to a place in Natchez, thus rendering “Mistletoe” open to vandals, unoccupied, unattended, depreciating, etc., through lack of use, to secure the property’s title in the Lambdin family, and to carry out the express desire of the settlor; that the Court inspect all of the property and approve the judgment of the trustees in the proposed sale.

They requested, in view of the trusteeship of S. H. Lambdin and Waldo P. Lamb-din, that the court examine into the merits and demerits of the proposed sale, appointing guardians ad litem for the minors if deemed necessary, and doing all things the court deems advisable for the protection of "all parties and to insure that equity is done; they asked a finding that the sale will not constitute a breach of fiduciary relationship, if any, between any of the parties since all the terms and conditions of the sale are set forth and all interested parties are made defendants.

They assigned as additional reasons why the trustees deem it to the best interest of the estate that the sale be made, the life tenant is of advanced age, his home is approximately ten miles from the Natchez City Limits, he often becomes afraid and alarmed in the house at night, on occasion becomes ill and in need of immediate medical attention, no one is there to care for him, and it is to the best interest of all the parties to see to his protection, care and to nurture and care for him, facts which they assign as evidence of the trustees’ good judgment in seeking the proposed sale as being to the best interest of the estate, since “Mistletoe” is presently burdened with S. H. Lambdin’s life estate and Waldo P. Lambdin’s option to purchase it.

The S. H. Lambdin, Jr., children and the guardian of the two minors of them answered the petition largely denying the allegations thereof, asserting as affirmative defenses that the 1970 contract, exhibited to the petition, is binding on all parties, protecting S. H. Lambdin and his life estate, and to guard against Waldo P. Lamb-din’s attempting to obtain a life estate paramount to said S. H. Lambdin, and asserting it as binding him not to exercise option as to the property during the life tenant’s life, and that he has bound himself not to exercise the option except within six months thereafter, and that the testatrix’ will intended against destruction of that life estate.

They incorporated a general demurrer, and also made their Answer a cross bill, wherein they prayed that the trustees, and as individuals, the cross-defendants, be required to make and file a full and complete inventory of all assets coming into possession and control of the trust or the trustees, or any of them, particularly including the jewelry owned by the settlor at her death, and to require them to make accounting of all income, receipts, disbursements, and balance on hand of the trust from its inception to the present, and adjudging that the trustees shall desist from self dealing or with each other individually, as to any of the trust property, requiring any and all items of jewelry from the settlor into the estate, at her death, which may have been under the control of any one of the trustees and reported to the court, to be held and preserved for the trust, and if they, or any of them repudiate their obligations under the trust, and failure or refuse to do their duty thereunder and fully account to the court, that the court remove them and appoint other trustees, and that the court should further adjudge each of the trustees now to be personally liable for each jewelry item owned by the settlor at her death and not accounted for and held in their possession as trustees; and for general relief.

In support of this prayer, they alleged that the settlor, the testatrix, left to cross defendant S. H. Lambdin a life estate in “Mistletoe”, and all the furniture, furnishings, and fixtures of every nature connected therewith; that cross defendant Waldo P. Lambdin became executor of her will, and it was his duty to take an inventory of her property; S. H. Lambdin went into possession of the “Mistletoe” realty and personalty, upon her death; cross complainants, owners of a vested remainder interest in the personalty of “Mistletoe”, were and are entitled to have an inventory of all said property, and a trüe copy furnished to them, and to inspect and check the items thereof so as certainly to know just what property is there, and was there, and the condition and location of any part or item not now in said home; that cross defendants are personally liable and responsible for the care, preservation, and accounting of all property left by the testatrix to the trustees, all of which must be, at S. H. Lambdin’s decease, divided into two equal parts, as provided by the will and the trust agreement, and the trustees should now furnish an inventory of all the other personal property which passed under the will to the trustees of the trust, in accordance with Item II of the will; that the testatrix owned at her decease various items of jewelry of large value, some of which had been insured during her life, of which the records should be available, and, on information and belief, they alleged that the trustees or some of them have attempted to dispose of the jewelry by giving it, or some of it, to relatives or family members, contrary to the will and trust agreement, and the trustees were not, and are not, entitled to dispose of any part thereof by gift; that the jewelry belonged to, and still belongs to, the trust estate for division at S. H. Lamb-din’s death, according to the trust and will; and further on information and belief, they alleged that some one or more of the jewelry items had been delivered to, and are in the possession of, Waldo P. Lambdin, and held personally by him or by a member of members of his family.

They alleged that all jewelry of the testatrix should now be included in an inventory of the trust estate, to be made and kept by the trustees, and made available to all beneficiaries of the trust for inspection; that the trustees are personally liable for all acts or omissions of their duty to collect, preserve, and account for the jewelry and all other items passing to the trustees under the will; that the value of the jewelry at testatrix’ death was in excess of $5,000; that since the trustees have wrongfully attempted to dispose of “Mistletoe”, by proposing, in their petition to warrant it specially to one of the trustees, they are evidently not acting fairly, equitably, or in good faith, with the trust property, and should now be required to be bonded for not less than $50,000 each, or resign, or be removed and replaced by the court; and that they, and S. H. Lambdin, in particular, should be required forthwith to restore all of said jewelry items, and place them in a separate safety deposit box, for the trust only, and make a separate inventory thereof, and make copies available for inspection by the trust beneficiaries.

Based upon all their allegations, the cross complainants assert that full and complete report and accounting of the trustees is essential to the performance of their office of position and trust.

The trustees, the cross defendants, demurred to the cross bill assigning as grounds no equity on its face and it does not state a cause of action. They moved to strike the cross bill as not being germane to the issues raised in the original bill and the matters contained in it are extraneous and foreign to matters in dispute raised by the original bill.

The chancellor overruled the defendants’ general demurrer to the bill of complaint, and sustained the general demurrer to, and the motion to strike, the cross bill.

The cause went to trial on the bill of complaint and answer thereto, resulting in decree granting the prayer of complainants and ordering sale, by the trustees, of the land by special warranty deed to Waldo P. Lambdin for $40,000.

The defendants and cross complainants, the appellants here, have assigned nine errors in the record. The issues may be resolved by decision of four of these assignments: the chancery court erred in sustaining appellees’ motion to strike appellants’ cross bill, in sustaining appellees’ demurrer thereto, that the court was manifestly in error in its findings of fact and was in error in its conclusions of law.

Viewing these assignments in inverse order, an examination of the trust agreement reveals no prohibition against the contract that the parties, trustees and individuals, made that Waldo P. Lambdin’s exercise of his option to purchase “Mistletoe” would be exercised upon, and within the six month period after, the death of S. H. Lambdin. The contract was exhibited to the petition to sell the property to him and was introduced in evidence by them, and S. H. Lambdin, still alive, joined as a party to the petition, swore to it, and testified at the hearing. No attack was made on the contract by any petitioner, and no insinuation was made by any of them that the contract is without binding force upon the parties thereto. In their brief in this Court, they, as appellees, recognize that the chancellor did not rule on the validity or effect of the contract. In fact, his granting petitioners’ prayer completely ignored this contract.

It is here determined that the action undertaken by petitioners and approved and ordered by the court violates the agreements between the parties. The chancellor should have so found and decreed, and in failing to do so, has committed reversible error.

The cross bill, in response to the petition of the appellees, detailed duties of the trustees in gathering and safeguarding the trust property, alleged failure of the trustees in this respect, and expressed well founded uneasiness partially arising from the trustees’ and Waldo P. Lambdin’s individual undertaking to convert the remainder interest in “Mistletoe” into money, that the proceeds would not receive the fiduciary care owed the trust property and the beneficiaries. The cross complainant alleged less than dutiful fiduciary care of jewelry at one place valued at upward of $5,000.

Appellees argue that the specific content of the trust provides that the trustees shall not be required to make or file inventory, appraisement, or annual return, and that the testatrix’ will contains the same waiver. The waiver of these things did not result in leave to the trustees to deal with trust property in violation of equitable principles, including, but not limited to, the disposal of the jewelry by gift.

In Bailey v. Sayle, 206 Miss. 757, 40 So.2d 618 (1949), accounting and reports had been waived by the will involved, but the Supreme Court, on showing in the record warranting an accounting, remanded the case for accounting by the executor.

The cross bill stated a cause of action for relief which required answer by the cross defendants therein, appellees here, and it, in allegations and relief sought, is germane to appellees’ petition.

The lower court erred, therefore, in sustaining the demurrer and the motion to strike the cross bill.

In summary, the cause is reversed and rendered as to the decree approving sale of “Mistletoe” and is reversed as to the lower court’s action in sustaining the demurrer and the motion to strike the cross bill, and remanded.

REVERSED IN PART AND RENDERED; REVERSED IN PART AND REMANDED.

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