author: BAILES, Judge Pro Tem.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. RIVERSIDE REALTY CO., INC. (four cases).
    Nos. 10349 to 10352.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1975.
    Rehearing Denied Aug. 26, 1975.
    Alvin J. Liska, New Orleans, and Johnie E. Branch, Jr., Baton Rouge, for appellant.
    Sidney D. Fazio, Baton Rouge, for ap-pellee.
    Before LOTTINGER and COVING-TON, JJ., and BAILES, J. Pro Tern.
   BAILES, Judge Pro Tem.

The plaintiff, State of Louisiana, through the Department of Highways, filed expropriation proceedings for the taking of the hereinafter described property for highway construction and improvement purposes under the provisions of LSA-R.S. 48:441 et seq. All suits involve the same parties, both plaintiff and defendant.

These appeals involve only the question of severance damages. Seven separate tracts of land were involved in the taking. The remainders of the taking of these seven parcels of land were found by the district court to have suffered severance damages. These parcels are described and hereinafter referred to as 1, 2, 3-23, 5 — 1, 5 — 6, 5-7 and 43. The trial court awarded severance damages resulting to the remainder left from the taking of Parcel 3-23 in the amount of $5,900; and to the respective remainders for the taking of Parcels 1, 2, 5-1, 5-6, 5-7 and 43 in the amount of $6,790. The award of severance damages associated with Parcel 3-23 was broken down as follows: 24.4 acres on the west side of Highway 1-59, $4,880, and for 1.7 acres on the east side of Highway 1-59, $1,020. The award of $6,790 associated with Parcels 1, 2, 5-1, 5-6, 5-7 and 43 was divided by the trial court as $3,920 for remaining property on the west side of 1-59 and $2,870 attributed to remaining property on the east side of 1-59.

The State has appealed these awards.

Involved herein is the taking of land for the construction of a portion of Highway 1-59 north of Slidell. We find the following description of the parcels involved accurate and quote from the plaintiff’s brief, as follows:

“Parcel 3-23 is located approximately 3 miles north of Slidell. The subject property, as a whole, is considered to be approximately 35 acres and is 7 five-acre tracts subdivided and identified as Oak Ridge Subdivision. [This] subdivision was developed many years ago; however, it was not developed fully and only a portion of the lots are sold. The subject property has very limited access and could be reached only by a small private road leading to the extreme northeast corner of one of the 7 lots. At the present time, the subject property is still remote and inaccessible except by one gravel road leading off of Lincoln Road stopping at approximately the northwest corner of Lot 33.

“The part taken * * * is a 300-foot wide strip running north and south through the lower or east portion of the property. * * * (C)ontained in the total taking is 9.038 acres.

“The property after the taking [is designated] as a large remainder on the west of the taking containing approximately 24.286 acres and a small remainder on the east side of * * * 1.676 acres. This small remainder on the east has been isolated and is without access, detached from the large remainder. The large remainder [24.286 acres] however, enjoys the same position in relation to accessibility as [it] did prior to the taking.”

Parcels 5-1, 5-6 and 5-7 are takings for 1-59 located about one mile north of Parcel 3-23. Parcels 1, 2 and 43 are takings for the purpose of widening what is known as Military Road or State Highway 1090. Parcels 43 and 2 are located on the west side of Military Road and Parcel 1 is on the east side thereof. At the location Parcels 5-1, 5-6 and 5-7 (taken for 1-59) and Parcels 1, 2 and 43 (taken for State Route 1090) Highways 1-59 and 1090 are about one-eighth mile apart, the latter lying to the east of the former. The accompanying plats more clearly located these parcels.

All parcels are located about 4% miles north of Slidell and were taken from a tract of about 49 acres fronting on the west side of State Highway 1090. Parcel 1 is located on the east side of State Highway 1090. The land is relatively level, with some woods and part in pasture. On this tract is located a large residence and swimming pool. Additional improvements consist of a smaller frame residence on piers, with asbestos siding and composition roof, a 30 x 50 barn, and another barn 18 x 30 with hayloft and a shed-type building of the same size, and fencing.

Parcels 5-1, 5-6 and 5-7, collectively consists of a strip running north and south having a total area of 8.838 acres. The extreme eastern edge of the taking is in excess of 600 feet from Military Road (1090) or the front of the property and approximately 350 feet from the main residence and 175 feet from the small secondary residence and 350 feet from the swimming pool. These parcels were required for the construction of 1-59.

The property after the taking has two remainders. The east remainder which will be the area continuing to front along Louisiana 1090 contains approximately 2*4 acres with all the major described improvements with the exception of the barn with loft and shed. The second remainder is on the west of the part taken and contains approximately 19Í4 acres. This remainder, which was rear land before the taking, now fronts along a completed service road running along the entire 1,156 foot width of the property. This service road is reached by Louisiana 1090 leading from Slidell. This places the west remainder in closer proximity to Slidell.

“Parcels 1 and 2 are on either side of Old Military Road, Louisiana 1090, north of Slidell, Louisiana. At the time of plaintiff’s appraisals, Military Road was a gravel road with open ditches and the property on the east side of the road was fenced with a mesh irire and barbed wire fencing on wooden posts. The property on the west side of the road was not enclosed. Both sites are flat in elevation and cleared land. The parcels taken are strips across the front of the properties. On Parcel # 1, the taking at the north end is a point and it widens out at the south end to 20.73 feet by a distance of 843.85 feet and contains 0.366 acres. * * *.

“Parcel 2 is on the west side of the road; the taking'is 15.74 feet at the north end and 15.76 feet at the south end by a distance of 683.92 feet and contains 0.241 acres. * * *.

“Parcel 43 is south of Parcels 1 and 2. It is improved with a two-story frame and plaster dwelling, a swimming pool and other outbuildings. The part taken is a strip across the entire front of the property measuring 15.76 feet at the north end and 16.32 feet at the south end. The only improvements contained on this part taken is an old ranch type frame fence and a portion of the driveway. * *

The plaintiff’s appraisers were Mr. Henry B. Breeding, Jr., and Mr. Ward J. Deano, both residents of St. Tammany Parish where they are actively engaged as realtors and appraisers. The defendant’s appraisers were Mr. Theodore M. Wilkes, who has been employed part time in this occupation for the past two years, and Mr. Kermit A. Williams, a realtor and appraiser. Both Mr. Wilkes and Mr. Williams reside in Baton Rouge.

In its brief, the State contends the trial court committed error in the following respects :

1. In awarding severance damages for consequential inconvenience which did not diminish the value of the remainder; and

2. In awarding severance damages based entirely on the unsupported opinion of defendant’s appraisers and disregarding the testimony of the State’s appraisers whose opinions were based on comparables to establish the before and after values of the property.

The trial court rendered written reasons for its judgment. We quote the pertinent part of these reasons, as follows:

* * *

“This Court will rely primarily on the testimony of Mr. Kermit A. Williams, expert realtor and appraiser for the conclusions expressed here.

"SUIT NO. 18,397

« * *

“Parcel 3-23 (* * *) involved the taking of 9.038 acres out of a 35 acre tract which was actually seven 5-acre tracts subdivided into Oak Ridge Subdivision. Mr. Breeding valued it at $350.00 per acre; Mr. Deano at $400.00 per acre. The Court accepts Mr. Williams’ figure of $700.00 per acre for a value of $6,327.00 for the 9.038 acres taken.

“The remainder east of Interstate Highway 59 was 1.7 acres. Mr. Breeding and Mr. Deano found severance damages to this tract of $419.00 and $570.00 respectively. Mr. Williams’ figure was $1,020.00, which the Court accepts.

“The remainder west of the Interstate 59 Highway consisted of 24.4 acres. Neither Mr. Breeding nor Mr. Deano found any severance damages here. Mr. Williams found moderate severance damages of $200.00 per acre and the Court will allow these in the amount of $4,880.00.

"SUIT NO. 19,012

“Parcel 5-1 involved taking 4.128 acres at $700.00 per acre (Williams’ figure) for $2,890.00.

Parcel 5-6 involved taking 2.47 acres at $700.00 for $1732.00.

Parcel 5-7 involved taking 2.237 acres at $700.00 for $1566.00.

Mr. Deano and Mr. Breeding used $400.-00 per acre but the Court accepts the $700.00 per acre as correct.

"SUITS NOS. 19,763 & 19,877

“Parcel 43 involved .288 acres at $700.00 per acre or $201.60.

Parcel 1 involved .366 acres * * *.

Parcel 2 involved .241 acres * * *.

“Mr. Breeding and Mr. Deano did not allow any severance damages for these parcels; Mr. Wilkes and Mr. Williams did.

“The Court accepts Mr. Williams’ figiire of $3,920.00 damages for the west area remainder,- $2,870.00 for the east remainder.

“Hence for Parcels 5-1, 5-6, 5-7, 43, 1 and 2, * * * the severance damages are $6,790.00 * * *

As stated by the trial court, it relied mainly on the findings of the defendant’s appraiser, Mr. Kermit Williams in determining the quantum of the award of severence damages. It is noted that Mr. Williams testified that he had not made any appraisal prior to this occasion in this area.

The record contains the following quoted testimony of Mr. Williams, to-wit:

“Q. What did you find the severance damages to be in that case ?
“A. The severance damage relating to the larger portion, 24, estimated to be 24.4 acres, I estimated to be damaged approximately $200.00 per acre for a damage figure of $4,880.00. * * *
* * * * * *
“Q. 24.4 is $200 an acre damage ?
“A. That is the amount of damages $4,880.00, and then, there was a small triangular 'piece that would be lying east of the area taken that 1.7 acres, the only access it would have there would be across a very large canal which is along the south edge of the property, and the cost of reaching it in my opinion would almost exceed the value. I have damaged that $600 per acre left a nominal figure in the land that remains.
So that 1.7 acres damaged, $600 per acre, came to $1,020.00.
“Q. That would be the total severance damages in connection with this taking then of how much ?
“A. $5,900 and added to the part taken of $7,013.00, in the two parcels that were taken comes to an estimate of $12,913.00.

On cross-examination by plaintiff’s counsel, Mr. Williams testified:

“Q. Mr. Williams, when is the last time you appraised these remainders?
“A. I looked at them just last week to confirm work I had done earlier. I made no changes to my conclusions last week, but I inspected them just last week.
“Q. As I understand, you did not make an appraisal of the remainders in the light of current market data.
“A. I have no current market sales that would fit the pattern of the remainders, if that is an answer.”

The defendant’s other appraiser, Mr. Theodore M. Wilkes, stated this was the only appraisal he had ever made in the Sli-dell area. His testimony on severance damages follows:

“Q. Did you find any severance damages in connection with this taking?
“A. Yes, sir. The value before the taking of the total acreage, 35.114 acres, had $1,000.00 — At $1,000 per acre, was $35,110.00. The value after the taking, divided as follows: The remainder west of the taking of 24.4 acres which I ascribed a value of $900 per acre, indicated a value of $21,960.00. The remainder east of the taking which was 1.676 acres, I assigned a lump sum value of $250.00, indicating a total value after the taking of $22,210.00. * * *
******
“From the $12,900.00 diminution in value, the value of the part taken at 9.038 acres at $1,000.00 an acre, for which I ascribed a value of $9,040.00 is deducted and this illustrates a severance damages of $3,-860.00.”

There is no opinion expressed by Mr. Wilkes of the severance damage to the triangular shaped 1.7 acres located on the east side of 1-59 cut off from the original tract apart from the total severance damage estimate of $3,860.00.

The plaintiff’s expert, Mr. Breeding, testified:

“Q. Is there any damages done to the remainder ?
“A. Yes, sir. There is a little remainder on the south side of the part taken containing 1.7 acres approximately and it will now be inaccessible and still is today because it has been separated from the parent tract and also- adjoining this property on the south is a subdivision known as Ozone Pines but separating Ozone Pines from that remainder is a major drainage canal and the property is too small to make it feasible to bridge it so the only value you would have would be to the adjoining property owner to the ■ east who may want to add to his land but other than that, it is not very good.
"Q. What do you estimate that to be ?
“A. Well, I figured that the typical adjoining owner would certainly pay one hundred dollars an acre for it so therefore the value, the damage was two hundred fifty dollars per acre, but I estimated that that adjoining property owner or anyone in the market just buying a piece of land for a hundred dollars an acre would buy it.
“Q. Now, the other remainder, which is in the red stripes, which is approximately 24.4 acres, were there any damages done to that ?
“A. No, sir, because that piece of land is basically the same as it was prior. It had the same, it has the same access as it had previous to the taking with the addition that the construction, which is completed stubbed in a service road to the northeast corner of the property.
“Q. It gives it a greater access now?
“A. It has a little more access, I would say, than it had prior. The little dirt road I referred to originally is still existing there which, I believe to be Roosevelt Road.
“Q. Have you arrived at a value of the land as it is today ?
“A. Yes, sir.
“Q. What would that value be ?
“A. The 24.4 acres remaining on the west side, I believe, would sell in the market today for one thousand dollars an acre or twenty-four thousand four hundred dollars. As previously stated, the piece on the south or the east would have a value of one hundred dollars an acre or one hundred seventy dollars.
“Q. Now, in arriving at this value, did you use the same comparables that we referred to before, the same ten comparables ?
“A. Yes, sir. I analyzed the same ten comparables.
“Q. Is there any one specifically that you would refer to that is more like this property than the others?
“A. “Well, Sale No. 2 which sold for one thousand dollars is a larger tract but it has very limited access from Robert Road so it is similar to the subject remainder in that respect. The access to the comparable 2 may be a little bit better but by the same token the subject remainder is considerably smaller which would be offsetting. That is mainly what influenced me.
“Q. Have you calculated as to what the severance damages were ?
“A. Four hundred nineteen dollars.
THE COURT:
“That is up on the little piece ?
THE WITNESS:
“Yes, sir.
THE COURT:
“That 1.7 acres?
THE WITNESS:
“Yes, sir.
BY MR. LISKA:
“Q. Is that this small piece in red (indicating) ?
“A. Yes, sir.
THE COURT:
“Four hundred nineteen dollars in severance ?
THE WITNESS:
“Yes, sir.
THE COURT:
“Now, on the other remainder you don’t find severance ?
THE WITNESS:
“No, sir. It still has the same access.”

The plaintiffs other expert appraiser, Mr. Deano, by the use of practically the same comparables as used by Mr. Breeding, found this parcel had a value at the time of taking of $400 per acre, but at the time of the trial over ten years later the 24.4 acres of the remainder located on the west side of 1-59 had a value based on these comparables of $750 per acre. In considering severance damages to the triangular shaped 1.7 acres located on the east side of 1-59 because of its inaccessibility and the low or depressed nature of the ground had a total value of $100, which reflects a difference of $580 between the before taking value and the after taking value. His conclusion was that the 24.4 acres remaining on the west side of 1-59 suffered no damages and that the 1.7 acres remaining on the east side of I-59 did have severance damages.

Now considering Parcels 5-1, 5-6, 5-7, 1, 2 and 43, the trial court, along with the defendant’s appraisers, considered these six parcels as a unit in fixing severance damages.

As shown by the trial court’s written reasons for judgment, the findings of the trial court of severance damages were based on the following testimony of Mr. Kermit Williams:

“Q. Okay. With reference to severance damages, what did you find?
“A. Yes, sir. It was my opinion that the west area of the property which is at the top of that map, which contains 19.6 acres, was damaged approximately $200.00 per acre, so that the damage is estimated to be $3,920.00.
Now, the east remainder, I felt that was damaged because of severance, from the larger portion of the tract, and exposure to the interstate, but I thought the damage was less. It contains 20.5 acres, and I have it damaged at $140.00 per acre, which is 20% damage figure or an indicated damage of $2,870.00 for a total estimate of damages of $6,790.00.

Mr. Wilkes’ testimony on the question of severance damages to these parcels follows :

“Q. Did you find any severance damages in connection with these takings?
“A. -Yes, sir. The value before was 58.183 acres at $1,000.00 an acre, totalling $58,180.00.
“Q. Excuse me just a minute now. You are including within that 58 acres—
“A. All of the parcels.
“Q. All of the parcels out of which— All of the tracts out of which these five or six parcels came ?
“A. Yes, sir. Because of the unity of ownership and unity of use was taken.
In other words, prior to the taking, this was all one big tract of land? ¡ó
For all practical purposes, yes, sir. >
Proceed. ¡ó
The value after, the value ascribed parcel 5-1, which was a — Contains after the taking 19.15 acres, a value of $700.00 was ascribed to this parcel, indicating a value of $13,650.00. >
Parcel '5-6 was 1.5 remainder at $800.00 per acre, indicating a value of $9,200.00. 5-7 was a 9 acre remainder, and the value was ascribed to that as $800.00 per acre, indicating a value of $7,200.00, and east of the Military Road was an 8 acre parcel, which was valued at $1,000.00 per acre, or $8,000.00, indicating a total value after the taking of $38,050.00.
That is illustrating a diminution in value, a total of $20,130.00, which was divided between the part taken, which had a value of $10,183, deducting that from the total diminution indicates the severance damage of $9,947.00.
“Q, Now, that figure, would you attribute to all of the takings in connection with that big tract ? Is that correct ?
“A. Out of the smaller takings, I did not ascribe any severance damage. The takings of which I ascribed major damage was severance between 5-1 and 5-6 and 5-7.
“Q. That would be the interstate highway, itself ?
“A. Yes, sir.
“Q. Where it split the tract?
“A. Yes, sir.”

Plaintiff’s expert, Mr. Breeding testified that there was no severance damages to any of these parcels. Specifically, he testified that parcels 1, 2 and 43 were extremely narrow strips of land in relation to the depth of the property and there was no material change in shape or size of the property. Parcel 1 was 844 feet in length along the east side of Military Road with a taking of .366 acre; parcel 2 was 684 feet in length along the west side of the same road with a taking of .241 acre; and parcel 43 was 643 feet in length along the west side of the same road with a taking of .28 acre. The purpose of these takings was to widen Military Road. Mr. Breeding stated that prior to the taking the road was a relatively narrow gravel road and that now, after the taking, it is wider and hard surfaced. It was his opinion that the property at the time of the taking had a value of $1,000 per acre and that the value of the remainder at the time of trial had a value of $2,000 per acre. This opinion is based on comparables No. 9 and 10 with appropriate adjustment.

According to the testimony of Mr. Breeding parcel 5-1 had a remainder of 19.6 acres and this tract is the portion located on the west side of 1-59. Through the adjustmnt of comparables he used, being ten in number, it was his opinion that the property at the time of the taking had a value of $400 per acre. The only improvement was field fencing. The remainder consisted of the rear portion of the larger tract which fronted on Military Road. He found that a service road had been built on the west side of 1-59 giving it very good access.' He opined that it was more valuable at the time of the trial than at the time of the taking. He also found it was closer to Slidell in travel time than it previously had been because of the circuitous route along Military Road.

This witness further stated that parcels 5-6 and 5-7 were taken from the portion of the tract fronting on Military Road on which the improvements are located, namely, the residence and swimming pool both of which are still in location undisturbed. As shown by the accompanying sketch of the property both 5-6 and 5-7 are portions off the rear of the front property. Mr. Breeding .used the ten comparables in arriving at the trial date value. He found the market was strong on that date for tracts of land of the 5, 10 and 15 acre size, and that such acreage was selling for upward to $2,000 per acre. He cited a six-acre tract in this locality which sold for $4,500 per acre, readily acknowledging that it was better located and landscaped.

The testimony of Mr. Deano closely parallels the reasons of Mr. Breeding in his finding that no severance damage was inflicted on the remaining property of defendant. No useful purpose would be served in detailing the reasons for his conclusion.

It is worthy to note that plaintiff’s appraisers’ testimony is entitled to greater weight than the appraisers for the defendant. Mr. Breeding and Mr. Deano both are realtors in the locality of the taking. Both have previously appraised property in this area and have followed the market for a number of years. Each of them used likely comparables. We are convinced from their testimony that' unquestionably the property remaining after the taking by the plaintiff has enhanced and improved in value because of the highway program which necessitated the takings. On the other hand, Mr. Williams is a realtor and appraiser primarily engaged in the Baton Rouge area who, according to his testimony, had not previously made an appraisal in the Slidell area. Mr. Wilkes freely stated that he was engaged only part time as an appraiser and was not interested in continuing this type work. He stated his primary function was that of controller from several Baton Rouge firms. He had not been engaged previously in appraisals in this area.

In the case of State, Through the Department of Highways v. Singletary (La.App.1966), 185 So.2d 642, this court stated:

“[1-3] In controversies of this kind, the court must be guided by the testimony of expert witnesses. In determining the amount of damages, whether called severance or consequential, the testimony of the expert appraisers must 'stand the test of reasonableness. Opinion testimony is best based on the experience of the witness related to the particular problem before the court. Opinion testimony of experts who have experience in dealing with real estate within the area in which the subject property is located is entitled to greater weight than the testimony of an expert without such actual and practical experience.”

Aside from the fact that the State’s appraisers were both residents of and active realtors and appraisers in the locality of the subject property, their opinion of value is entitled to greater weight for the reason that their determination is based on compa-rables selected for the purpose of being able to express an opinion on the question of severance damages.

In State Through Dept. of Highways v. Dodge (La.App.1964) 168 So.2d 430, the court stated:

“The rule applicable here is that the testimony of each expert should be considered and given effect if that testimony appears to be well grounded from the standpoint of sincerity and good reasoning. The expert testimony may be disregarded, however, if it impresses the court unfavorably, (citations omitted).”

LSA-R.S. 48:453 provides:

“The market value is determined as in general expropriation suits but as of the time the estimated compensation was deposited in the registry of the court.
“Damage to the remainder of the property is determined as of the date of the trial.
“In either case the defendant has the burden of proving his claim.”

This statute places on the defendant the burden of proving damages to the remainder of the property. This burden has been recognized by innumerable cases in the jurisprudence. We find the trial court committed error in its conclusion that the defendant had sustained the burden of proving damages to the remainder. We consider the testimony of Mr. Breeding and Mr. Deano, based on their appreciation of local conditions and values buttressed by the comparables which they used, is more reasonable and well founded than the mere unsupported conclusion of Mr. Williams. We conclude that the testimony of plaintiff’s experts far outweighs the probative effect of the mere conclusions of defendant’s witnesses, Mr. Wilkes and Mr. Williams.

The testimony of Mr. Breeding shows that he found a difference in before and after values of the 1.7 acres of Parcel 3-23 located east of 1-59 of $419, and for equally good reasons Mr. Deano found a difference in value of $580. Judgment will be rendered against the plaintiff in the amount of $580 for severance damages, and in all other respects the awards of severance damages to the other parcels are reversed.

The records in these consolidated cases shows that a total award for severance damages was $12,690. By subtracting the award of $499.50 from the trial court award of $12,690, there is found an excess award of $12,190.50. The records herein further shows that the plaintiff deposited the awards of the trial court with the Clerk of Court on March 20, 1974.

The plaintiff is entitled to judgment against the defendant in the amount of $12,190.50. Accordingly, there is judgment herein in favor of the State of Louisiana, Through the Department of Highways, and against the defendant, Riverside Realty Company, Inc., in the full sum of $12,190.-50, together with legal interest thereon from the date of withdrawal of the excess deposit until paid to the plaintiff.

Plaintiff is cast for all costs of the district court and of this appeal as permitted under law, and in all other respects the judgments appealed are affirmed.

Amended, and as amended, affirmed.

      . All suits bear identical titles, although different numbers. Separate judgments were rendered in each case; however, the trial court awards of severance damages were included in the judgments in suits No. 10,349 and 10,350 on our docket. Plaintiff has appealed all four eases, and all cases have been consolidated herein for the purposes of argument and judgment. Suits No. 10,351 and 10,352 were filed in 1962; all were tried in December, 1972, and the judgments were signed by the trial judge on February 4, 1974.


source: Caselaw Access Project

author: BOUTALL, Judge.

license: Public Domain

text:
    Gaetano N. BARLETTA and Dorothy Mathews v. Larry ENGRAM et al.
    No. 6918.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 5, 1975.

      Caryl H. Vesy, New Orleans, for Gae-tano Barletta and Dorothy Mathews.
    C. Gordon Johnson, Jr., New Orleans, for State Farm Mut. Auto. Ins. Co.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre and James L. Selman, II, New Orleans, for Western Auto Supply Co., d/b/a Western Auto Stores No. 15 and The Travelers Ins. Co.
    Before GULOTTA, BOUTALL and STOULIG, JJ.
   BOUTALL, Judge.

This is a suit for damages and personal injuries arising out of a collision between two automobiles at the intersection of St. Claude Avenue and Alvar Street in New Orleans. There is no dispute as to the facts of the accident, and it is simply sufficient to note that the vehicle owned by the defendant, Lidell Engram and driven by Larry Engram ran into the plaintiff’s vehicle due to the negligence of Larry Engram. A judgment was rendered against him in favor of both plaintiffs, and this matter is not before us on appeal. However the trial court judgment dismissed plaintiffs’ suit against Lidell Engram, State Farm Insurance Company and Western Auto Supply Company. The appeal is by plaintiffs from that portion of the judgment dismissing the above named defendants.

Lidell Engram is a brother of Larry Engram and is the owner of the vehicle driven by Larry. He had in effect a policy of automobile liability insurance from State Farm Mutual Auto Insurance Company. Plaintiffs bring these two defendants into the suit alleging that the vehicle was being driven with the consent, either expressed or implied, of Lidell Engram, and pleads their liability for Larry’s improper driving. The undisputed facts show that Larry and Lidell had spent the previous night partying in several lounges and night clubs. Early on the morning of the accident Li-dell picked up his brother Larry and proceeded to Western Auto Store #15 located a short distance over the Orleans Parish Line in St. Bernard Parish, in order to have his brakes checked and possibly repaired. They arrived at the store shortly after 9:00 o’clock and upon being informed that their car could not be examined at that time they left the vehicle in the parking lot, giving the manager the keys with instructions to inspect the car, and then walked away from the store a short distance to a variety store at which they purchased some sandwiches and a bottle of Strawberry Hill wine to drink while eating. On their return from the store to Western Auto, they were stopped by two St. Bernard policemen for questioning and a dispute arose between Lidell Engram and the policemen. As a result Lidell was placed under arrest and put in the squad car for transportation to jail. Larry, who took no part in this dispute, was not arrested. As the police took Lidell to jail, Larry walked back to the Western Auto Store, retrieved his brother’s automobile and attempted to return to New Orleans to get help to get Lidell released. However, after he had proceeded some distance into New Orleans, he had the collision mentioned above. As a result of these events, the plaintiffs also seek recovery from Western Auto Supply Company contending it is liable for releasing the vehicle to a person not the owner, and an obviously incompetent driver. We shall consider the question of liability of each defendant in turn.

LIABILITY OF LIDELL ENGRAM AND STATE FARM MUTUAL AUTO -INSURANCE COMPANY.

As noted above, the problem involved is a question of express or implied consent. If Lidell Engram expressly authorized his brother Larry to retrieve his automobile from the Western Auto store and use it in an effort to secure help, then obviously Larry would be acting as an agent of Lidell, and Lidell would be responsible for his agent’s negligence. Even beyond this, the coverage of State Farm under its policy is simply based upon consent of the owner of the vehicle. There is conflicting evidence in the record. Both Larry and Lidell testify that Larry had no consent. The witnesses at Western Auto indicate that there was a possibility of implied consent. The witnesses who were present at the accident scene testified that Larry said that Lidell had given him consent. The problem thus presented is mainly one of credibility of the witnesses, and the trial judge, although he gave no reasons for judgment, obviously resolved this in favor of the defendants. We agree. The record discloses that Larry Engram had no driver’s license and did not know how to drive. Lidell had attempted to give him several lessons, but gave up because Larry made him too nervous. Lidell had never permitted Larry to use the car, nor had Larry ever requested use of the vehicle. Considering the circumstances of Li-dell’s arrest, and these facts, we can very easily conclude that Lidell would not risk his brother attempting to drive his vehicle in St. Bernard Parish. The major fact which leads us to conclude that no consent was granted, was that Lidell was released from jail in a short time, and having no knowledge of his brother’s collision, had the police drive him back to the Western Auto store in order that he might claim his automobile and go about his business. This certainly shows no express consent to drive the vehicle.

Additionally, we conclude that there was no implied consent. Although the evidence reflects that the St. Bernard police told Larry, when he inquired as to what should be done with his brother’s automobile, that he should get the automobile out of St. Bernard Parish, Lidell was not privy to this conversation. The mere fact that as the police car pulled off, Larry began walking back towards the Western Auto store, does not lead to a presumption on Lidell’s part that Larry was walking back to get the automobile and drive it away. Actually we think it more reasonable to conclude that he was simply walking back to the Western Auto store as a friendly place from which he could use the telephone or take other means of securing help. The existence of implied consent is dependent upon the facts and circumstances surrounding each case.

Hurdle v. State Farm Mutual Automobile Ins. Co., 135 So.2d 63 (La.App. 2nd Cir. 1961). In the absence of express permission, the implied consent or permission must be concluded from circumstances which admit of no equivocation. Holden v. Transamerica Insurance Co., 222 So.2d 302 (La.App. 1st Cir. 1969); Swanson v. Comeaux, 286 So.2d 117 (La.App. 4th Cir. 1973), affirmed 296 So.2d 267 (La.1974). In this case the circumstances do not preponderate in favor of implied consent. Accordingly we agree with the trial judge’s dismissal of these two defendants.

LIABILITY OF WESTERN AUTO SUPPLY COMPANY AND THE TRAVELERS INSURANCE COMPANY.

Plaintiffs also seek to recover from Western Auto Supply Company and its insurer on the grounds that Western Auto Employees permitted Larry Engram to drive his brother’s vehicle away from the store, knowing, or in a position that they should have known, that Larry was not a capable driver, and that he was under the influence of intoxicating beverages at that time. Plaintiffs urge that not only is Western Auto responsible for its imprudence under Louisiana Civil Code Article 2316, but by assisting an obviously intoxicated person to drive a vehicle, an unlawful act, Western Auto is also responsible under the provisions of Louisiana Civil Code Article 2324.

For the purpose of considering this issue, we pretermit any discussion as to the general liability to which a person may be exposed as a consequence of the foreseeability of damages to plaintiffs. Instead we view this as simply a factual matter under the foregoing code provisions. The evidence produced by plaintiffs would tend to establish that at the time of the collision, Larry Engram was intoxicated. The evidence produced by the defendants tends to establish that at the time of the turning over of the automobile to Larry, he was not intoxicated. For there to be liability cast on Western Auto, the controlling time is when the vehicle was released and not the time of the accident.

An evaluation of the evidence points to the following facts. Although both brothers were exposed to approximately the same amount of intoxicants the night previously, the car was safely brought to the Western Auto store for the purpose of repairs. There is nothing in the record to suggest that anyone at Western Auto saw either brother drink any intoxicants prior to the release of the vehicle. The two store employees who spoke with Larry Engram when he returned to the store following his brother’s arrest testified that they had no suspicion that Larry was under the influence of intoxicants. The vehicle was driven from the premises in a slow and cautious manner and there were no indications that Larry was not able to drive. Both of the Engrams testified that Larry was not intoxicated. Additionally, based upon their evidence, it does not seem probable that the St. Bernard policemen would have told Larry to get the vehicle out of St. Bernard Parish had he been in an obviously intoxicated condition.

Based upon these, facts, we believe there is sufficient evidence to support a finding that Larry Engram was not noticeably intoxicated at the time he obtained the vehicle from the Western Auto store, and we find no error in the ruling of the trial judge. Absent manifest error, we affirm his judgment.

For the reasons assigned, the judgment appealed from is affirmed at the cost of appellants.

Affirmed.


text:
    Pennie Dandelake RAINWATER v. Homer T. RAINWATER.
    No. 48261.
    Supreme Court of Mississippi.
    Aug. 25, 1975.
    Bobby J. Garraway, Lumberton, for appellant.
    Jack Parsons, Thomas M. Matthews, Jr., Wiggins, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and BROOM, JJ.
   Affirmed.


text:
    Peggy J. GRAY, Individually and as Admrx. of the Estate of Gill R. Gray, Deceased, v. INTEGON LIFE INSURANCE CORP. et al.
    No. 48248.
    Supreme Court of Mississippi.
    Aug. 25, 1975.
    Charles R. Wilbanks, Corinth, for appellant.
    Smith, Downs, Coleman & Ross, Wendell H. Trapp, Jr., Corinth, for appellees.
    Before GILLESPIE, C. J., and ROBERTSON and BROOM, JJ.
   Affirmed.


text:
    Mary M. ROBERTS v. MISSISSIPPI STATE HIGHWAY COMMISSION.
    No. 48245.
    Supreme Court of Mississippi.
    Aug. 25, 1975.
    M. M. Roberts, Hattiesburg, for appellant.
    Robert Oswald, Pascagoula, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and BROOM,'JJ.
   Affirmed.


text:
    Sue A. Smith GINN v. Bennie Ray SMITH.
    No. 48237.
    Supreme Court of Mississippi.
    Aug. 25, 1975.
    Mounger & Mounger, Tylertown, for appellant.
    Statham & Watkins, Magnolia, for ap-pellee.
    Before GILLESPIE, C. J., and ROBERTSON and BROOM, JJ.
   Affirmed.


text:
    Walter Thomas HORBELT v. STATE of Mississippi.
    No. 48647.
    Supreme Court of Mississippi.
    Aug. 25, 1975.
    Kelly McKoin, Biloxi, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and BROOM, JJ.
   Affirmed.


text:
    Edgar Allen FREEMAN v. STATE of Mississippi.
    No. 48659.
    Supreme Court of Mississippi.
    Aug. 25, 1975.
    Jimmy D. Shelton, Tupelo, for appellant.
    A. F. Summer, Atty. Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, INZER and SUGG, JJ.
   Affirmed.


text:
    IRBY & MARTIN CONSTRUCTION COMPANY et al. v. William A. JONES, Sr.
    No. 48265.
    Supreme Court of Mississippi.
    Aug. 25, 1975.
    Campbell, DeLong, Keady, Robertson & Hagwood, Greenville, for appellants.
    Pyles, Tucker & Cupit, Jackson, Mc-Uwain & Mcllwain, Greenville, for appel-lee.
    Before GILLESPIE, C. J., and ROBERTSON and BROOM, JJ.
   Affirmed on direct and cross-appeals.


text:
    Jimmy Lee HILL v. STATE of Mississippi.
    No. 48619.
    Supreme Court of Mississippi.
    Aug. 25, 1975.
    Timothy E. Ervin, Aberdeen, for appellant.
    A. F. Summer, Atty. Gen., by Pete J. Caj oleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and BROOM, JJ.
   Affirmed.


author: RODGERS, Presiding Justice,

text:
    Baynard RAPER v. STATE of Mississippi.
    No. 48639.
    Supreme Court of Mississippi.
    Aug. 25, 1975.

      Harry L. Kelley, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Ben H. Walley, Asst. Atty. Gen., Jackson, for ap-pellee.
    Before RODGERS, P. J., and SMITH and WALKER, JJ.
   RODGERS, Presiding Justice,

for the Court:

The appellant Baynard Raper was indicted, tried and convicted in the Circuit Court of the First Judicial District of Hinds County, Mississippi, on a charge of the possession of more than one (1) ounce of a controlled substance, namely marijuana.

Upon the return of the indictment, the defendant filed a motion requesting the court to suppress the evidence of the discovery of marijuana in his home upon the grounds that (1) the affidavit to secure a search warrant of his home was made before one who was not authorized to issue search warrants, and (2) the alleged police justice pro tem acted at a time when the police justice was present, able and willing to exercise the duties of the office of police justice of the City of Jackson, Mississippi.

The defendant also filed a motion requesting the trial court to require the State of Mississippi to reveal the name of the person who informed them that there was marijuana in the defendant’s home.

The movant offered a certificate from the city clerk stating that she did not find any record of the appointment of John H. Downey as police justice pro tem in the records of the Commission. The officer who obtained the search warrant testified that he appeared before John H. Downey at his home between 8:00 and 8:30 on the night of November 6, 1972, and obtained the search warrant. It was stipulated that the duly-appointed police justice of the City of Jackson was at his home in Jackson at this time. After adjournment without a decision, the State requested a reopening of the hearing upon the ground that the State had discovered an order entered January 9, 1973 [after the search warrant on November 6, 1972] as a nunc pro tunc order, appointing John H. Downey Police Justice Pro-Tempore from and after March 31, 1971. This order states that “[o]n the 6th day of April, 1971 the Mayor of the City of Jackson, at 12:00 noon, administered the oath of office to John H. Downey, Police Justice Pro Tem for the City of Jackson, . . . ” The Mayor testified that he swore in Zeke Downey at noon on the 6th day of April, and that he recorded it on an appointment book. The record in the police department was introduced showing that Mr. Downey’s fingerprints and personnel record were filed with the department on April 6, 1971, as being an employee of the City as Police Justice Pro Tem. He resigned November 7, 1972. The record showed that he was paid a salary until his resignation. The circuit judge overruled the motion to suppress the evidence obtained by the search warrant. No evidence was offered on the motion to require the state to divulge the name of the officer’s informant, and the petition was denied.

The trial was held. Evidence was offered showing that the search warrant was obtained and a large amount of marijuana was found on a bed in the home of defendant Baynard Raper. The jury returned a verdict of guilty, and the trial judge sentenced the defendant to serve a term of three (3) years in the state penitentiary.

The defendant has appealed to this Court and now contends here that the trial court should have sustained his motion to suppress the evidence obtained by the search warrant because (1) the person issuing the warrant was neither an officer de jure nor an officer de facto; and (2) moreover, he had no standing to determine probable cause to issue a search warrant since the regularly appointed acting and qualified police justice was within the city limits of Jackson, Mississippi, and no effort was made to locate the police justice to obtain a warrant from him.

We do not think it necessary to comment on the fine argument in the briefs on the proposition that the Mayor and Board of Aldermen or Commission can only act through their minutes. Neither do we think it necessary to comment on the authority of the Mayor and Commission to enter an order nunc pro tunc to correct their minutes at a later date, without some evidence of record on which to base their order. There is a great deal of authority on both postulates.

The real issue in the first instance is whether or not the acts of the person who issued the writ were valid.

The Mayor and Commissioners had the authority to appoint a police justice pro tempore.

Although it- is true that oral testimony may not be given in an effort to create rather than correct records of municipal corporations, nevertheless, evidence may be offered to show whether or not a person assumed to act as an officer under color of title. See the record of testimony introduced in Upchurch v. City of Oxford, 196 Miss. 339, 17 So.2d 204 (1944). There is at least one case where we have permitted evidence to contradict the minutes of the mayor and board of aldermen. See Stephens v. Mayor and Board of Aldermen of City of Natchez, 261 So.2d 486 (Miss.1972).

The testimony in this case shows that John H. Downey was sworn in as a police justice pro tem, that he went through the regular procedure of making out his personnel file and that he was regularly paid a salary and acted in the capacity of a police justice.

In Upchurch v. City of Oxford, supra, in an effort to determine the status of one C. E. Harrison who was acting as Mayor of Oxford, the Court had this to say:

“Was Harrison a de facto officer? This Court, in Adams v. Mississippi State Bank, 75 Miss. 701, 725, 23 So. 395, 398, adopted this definition of a de facto officer: ‘An officer de facto is one who exercises the powers and discharges the functions of an office, being then in possession of the same under color of authority, but without actual right thereto.’ The Court then added, ‘Many authorities of great value maintain that there must be color of title as well as color of authority, and this we strongly incline to think is the sound view.’ The admitted facts in this case bring Harrison within that definition. His appointment by the Governor was certainly color of title and of authority. It is not necessary for us to, and we do not, decide whether he was a de jure officer under such appointment. See Chap. 187, Laws of 1942, and Section 3765, vol. 3, Mississippi Code of 1942.
Being at least a de facto officer, were the acts of Mr. Harrison void? The opinion in the Adams case answers that, “There can be but one answer to the question, and that is, the judgment was not void. In all the adjudications we have been able to find, there is not a disssenting voice as to the absolute correctness of this answer. As to the public generally, and as to third persons, the judgment of a special de facto judge stands exactly in the attitude of a judgment rendered by a judge de jure, and this proposition rests upon considerations affecting the orderly administration of justice, and the welfare of society at large.” 196 Miss, at 343^14, 17 So.2d at 204-05.

The foregoing rule seems to be universally accepted. See 43 Am.Jur. Public Of ficers § 495, at 242 (1942). The author there says: “The principle is placed on the high ground of public policy, and for the protection of those having official business to transact, and to prevent a failure of public justice.”

The Legislature of Mississippi has adopted this rule by legislative enactment: Mississippi Code Annotated Section 25-1-37 (1972).

We must conclude, therefore, from the evidence here presented that John H. Downey was at least a de facto police justice, if not in fact actually a de jure officer, and that his acts as a de facto officer were not void.

We will now deal with the issue raised by the appellant wherein he contends that even if we conclude that the officer was a police justice pro tern, he had no authority to act because the regularly-appointed police justice was within the city limits.

Mississippi Code Annotated Section 21-23-9 (1972) is in the following language:

“In any municipality wherein a police justice is appointed, the governing authorities shall have the power and authority to elect a police justice pro tem-pore, who shall have the same powers and shall perform all duties of the police justice in the absence of such police justice.”

It is the contention of the appellant that the last phrase “in the absence of the police justice” means that the police justice pro tem cannot act unless the regular police justice is out of the city limits. Appellant cites several cases wherein it is said: “[w]here duly elected police justice was present and able to act, acting police justice had no jurisdiction . . - . .”

Appellant cited as authority for his contention the case of City of Pascagoula v. Sharp, 136 Miss. 756, 101 So. 683 (1924), but we note that in that case this Court said: “The record before us is silent as to whether the mayor was absent, or incapacitated or disqualified to act, and the presumption that such was the case must prevail.” 136 Miss. at 760, 101 So. at 684.

There is a strong presumption that the official acts of officers are valid. The text writer in 20 Am.Jur. Evidence § 170, at 174—75 (1939), has this to say on this subject:

“In the absence of any proof to the contrary, there is a very strong presumption embodied in the maxim, ‘omnia prae sumuntur rite esse acta,’ that public officers have properly discharged the duties of their office and performed faithfully those matters with which they are charged. Stated in another way, the courts will presume,' in the absence of evidence to the contrary, that public officers have not culpably neglected or violated their official duties and have not acted illegally in the doing of any official act.”

The author goes on to say:

“The presumptions that public officers discharge the duties of the office and that in the discharge of such duties observe all the necessary and proper formalities imposed by law are applicable to all Federal, state, county and municipal officers of high or low rank and to the official duties and acts of public boards and commissions. Similarly, the presumption exists that each department of the government has performed its official duties as prescribed by law. It is the settled and well-intrenched policy of the law to indulge in every reasonable presumption in favor of sustaining the ministerial acts of officers.” 20 Am.Jur. Evidence § 171, at 177-78 (1939).

This rule is firmly fixed as a part of our case history. See the many cases collected by the West Publishing Company under Evidence, 82, 86.

There are many reasons why a police justice, or a judge cannot act in a given case. Absence from his usual place of business is only one of the reasons why a judge is unable to serve. He may be ill, related to the parties, pecuniarily interested in the case, or he may be a witness. These are among many other reasons why a judge would have to absent himself from acting in a particular case. Moreover, a justice of the peace as a judge would not be required to go out of the city or to a hospital in order to recuse himself to be “absent” within the meaning of the statute. Miss.Code Ann. § 21-23-9 (1972).

The duly-appointed police justice did not testify. In this case we have only a stipulation in evidence that he was in the city at the time the police justice pro tem-pore acted to issue the search warrant. The mere fact that the regular police justice was in the city at the time is not sufficient to overcome the strong presumption that the official act of the police justice pro tempore was valid. We hold, therefore, that the argument that the acts of the police justice pro tempore were void is not well taken.

On the other hand, the motion filed by the defendant requesting the court to require the state to divulge the name and address of the person who informed the officers of the violation of the controlled substance law should have been sustained by the trial court. The name of the informant in this case was essential to a fair trial for the following reasons.

The affidavit filed by the officer with the police justice pro tem stated, among other things:

“The information now furnished me by this Confidential Source is that a white male named Wayne Barrett who lives at 104 Stillwood has in his possession at this time a large quantity of marijuana and other dangerous drugs for the purpose of sale. This Confidential Source knows this information to be true and correct because he has seen this Marijuana in this Barretts [sic] possession at his address within the past twenty-four hours.”

The testimony here shows that the defendant Baynard Raper was arrested and indicted because the contraband was discovered in his home, and he is held because of his alleged constructive possession of contraband. The record shows that the defendant left home at 2:30 A.M. on the date of his arrest and was erecting steel at the Mississippi Junior College in Moor-head, Mississippi, until 3:30 P.M. He returned home around 9:00 P.M. He had just gone into the kitchen to eat when the officers pushed the door open and injured his face. He testified that he had not been in the bedroom where the officers found marijuana on the bed and did not know it was there. He testified that he had never been arrested for anything.

The defendant also testified that he had heard of Wayne Barrett but that he had never seen him. He said, however, on Sunday he went fishing with a man by the name of Wayne Bartlett and a girl named Peggy Brown. He testified that a man by the name of John LeMay — his friend, who had finished school at El Paso, Texas, and who was on his way home to Huntsville, Alabama — was at his house when he returned from work.

The affidavit of the officer to obtain a search warrant makes it abundantly clear that the informer knew who had possession of the marijuana within the past twenty-four hours and knew that man was not the defendant on trial. He was, therefore, a very material witness for the defendant.

Ordinarily, this Court is reluctant to require the State to divulge the name of informants because once their identity is known, they lose their ability to detect criminal activity. However, when it appears that the informer is a participant or is a material witness essential to the defense of the accused, this Court will not hesitate to require the state to divulge his identity.

Our own constitution [Miss.Const. § 26] as well as the federal constitution [U.S.Const, amend. VI] requires that the defendant be confronted by witnesses against him, and that he have compulsory process to bring into court witnesses in his favor.

In the case of Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), the Supreme Court in speaking of the privilege of the government to withhold- the identity of an informer had the following to say on the subject:

“Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action.” 353 U.S. at 60-61, 77 S.Ct. at 628, 1 L.Ed.2d at 645.

The Court cited the following cases as a precedent: United States v. Coplon, 185 F.2d 629, 28 A.L.R.2d 1041 (CA 2d N.Y. 1950); United States v. Andolscheck, 142 F.2d 503 (CA 2d N.Y. 1944).

It is obviously unfair for the State of Mississippi to have a witness who knows that some other person had the marijuana in his possession, and at the same time, prosecute the defendant on the theory of constructive possession because the contraband was found in his home.

The judgment and conviction of the appellant is reversed. The motion of the defendant to require the State of Mississippi to divulge the identity of the informant is sustained, and the case is remanded to the trial court for a new trial consistent with the foregoing opinion.

Reversed and remanded.

GILLESPIE, C. J., and PATTERSON, INZER, ROBERTSON, SUGG and BROOM, JJ., concur.

      . Mississippi Code Annotated Section 21-23-9 (1972).

      . “The official acts of any person in possession of a public office and exercising the functions thereof shall be valid and binding, as official acts in regard to all persons interested or affected thereby, whether such person be lawfully entitled to hold the office or not and whether such person be lawfully qualified or not; but such person shall be liable to all the penalties imposed by law for usurping or unlawfully holding office, or for exercising the functions thereof without lawful right or without being qualified according to law.” Miss.Code Ann. § 25-1-37 (1972).

      . State v. Roberts, 130 Kan. 754, 288 P. 761 (1930); 666 West End Ave. Corporation, v. Deutsch, 135 Misc. 707, 238 N.Y.S. 256 (1929); Boggs v. State, 56 Okl.Cr. 119, 34 P.2d 1078 (1934).

      . “In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both, to demand the nature and cause of the accusation, to be confronted by the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and, in all prosecutions by indictment or information, a speedy and public trial by an impartial jury of the county where the offense was committed; and he shall not be compelled to give evidence against himself; but in prosecutions for rape, adultery, fornication, sodomy or crime against nature the court may, in its discretion, exclude from the courtroom all persons except such as are necessary in the conduct of the trial.” Miss.Const. § 26.

      . “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation ; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” U.S.Const. amend. VI..


author: PATTERSON, Justice.

text:
    Tony WATTS v. STATE of Mississippi.
    No. 48646.
    Supreme Court of Mississippi.
    Aug. 25, 1975.
    Dale & Upton, Columbia, for appellant.
    A. F. Summer, Atty. Gen., by Wayne Snuggs, Special Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, INZER and SUGG, JJ.
   PATTERSON, Justice.

Tony Watts was convicted of armed robbery by the Circuit Court of Marion. County. He was sentenced to twenty years in the state penitentiary and now appeals.

The assignments of error for reversal are: The trial court erred (1) in overruling the defendant’s motion to quash the jury panel because Negroes had been deliberately and systematically excluded from jury duty by peremptory challenges of the state, and (2) in overruling the defendant’s motion for a directed verdict at the conclusion of the state’s case in chief.

The first assignment of error is without merit since no evidence of consistent or systematic exclusion of Negroes was presented by the movant. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).

The next assignment presents a difficult question due to the posture of the appeal. The appellant restricts himself to the contention that the lower court erred in overruling his motion for a directed verdict at the conclusion of the state’s case in chief. In doing so, he overlooks the many cases from this Court which hold that a motion for a directed verdict is waived when the movant introduces evidence in his own behalf. Fields v. State, 293 So.2d 430 (Miss.1974); Hankins v. State, 288 So.2d 866 (Miss.1974); Freeland v. State, 285 So.2d 895 (Miss.1973); Smith v. State, 245 So.2d 583 (Miss.1971); Ross v. State, 234 Miss. 309, 106 So.2d 56 (1958); and other similar cases too numerous to cite. The reason underlying the rule is that the evidence of the defense is considered in conjunction with that of the prosecution which may have the effect of either strengthening or weakening the state’s case, but in any event, there is additional evidence for consideration, moving the fact-finding process from only the evidence of the state to the totality of the evidence.

In view of the rule mentioned, this case might be affirmed without further ado since the defendant offered evidence in his own behalf. However, a review of all of the evidence, and noting the defendant requested a peremptory instruction, and in his motion for a new trial contended the verdict was contrary to the evidence, dictates consideration of the entire case in order to accord with due process of law.

On the evening of August 31, 1974, Constable McKenzie had Tony Watts under surveillance. His interest in Watts was incited by tales that Watts was selling beer. Armed with this information and a pair of field glasses, he parked iii front of a nearby liquor store and observed Watts’ place of business described as “a little old joint down there that he runs that had a pool table and a juke box in it.” Thus situated, he saw someone come out of the “joint” with a sack in his hands. This motivated McKenzie to unobtrusively move from the liquor store to Watts’ “joint.” From the street he was able to discern within the lighted interior a beer can upon a table. After parking his car and entering the “joint,” he discovered the beer can had been removed from the table to a bar “about as high as a judge’s bench.” The can was obtained by the constable and under scrutiny was revealed to be a 16-oz. Schlitz can about half full of beer. This discovery triggered, in the name of the law, the following: A search of a refrigerator behind the bar (nothing found), a search of an adjoining bedroom (nothing found), a search of a second refrigerator in the bedroom (nothing found), and finally, a search of a garbage can under the bar where there was discovered an unopened can of Schlitz beer and two empty cans, all cold.

As Officer McKenzie started to leave with the confiscated beer, Watts asked what he was going to do with it and was advised that he was going to pour it out. Watts objected because it was the last beer that he had. This interested a bystander who volunteered the statement that the constable had no right to take the beer, to which the constable responded: “I don’t need a search warrant. When I see beer in plain view in a public place I don’t need a search warrant to search the building,” admonishing, "If you don’t hush, I’m going to charge you with interfering with a law officer.” Evidently encouraged by the voice of an ally, Tony repeated: “You can’t take that beer. That’s the last one I got.” Whereupon the constable retorted: “Well, Tony, since you put it that way, I was trying to save you $65.00. You’re under arrest. You can go with me too.” The saving of $65.00 was later explained by the constable that he had intended to pour the beer out and warn Tony about possession of beer.

The dialogue reached heated intensity when the constable insisted that Tony was going to jail and Tony adamantly refused the invitation. The conversation was abruptly terminated when McKenzie placed one of the cans on the table and reached for Tony, and, according to McKenzie, Tony pulled a pistol and pointed it under his chin causing him to move his hand away from his own pistol which was taken by Tony who then directed the constable to leave the premises. To this command McKenzie retorted that he would not leave without his pistol.

Desirous of terminating the impasse, there followed a discussion of some duration (approximately ten minutes) as to the disposition to be made of the constable’s pistol after their departure. Tony stated that he would leave it outside the back door. The constable objected, stating that he did not want his gun thrown out in the rain. Tony suggested that he would leave it at Mammie Morris’ (Miss Toot’s), á nearby residence; whereupon the constable importuned Tony not to leave the gun there, but to come with him and avoid trouble. At this juncture Tony ran out the back door into the darkness, stumbled over a bicycle, struck a clothesline, recovered, ran nearly five miles through the woods, waded the river and finally arrived at his sister’s home. Later in the morning he called the county sheriff, advising him of his whereabouts and requested him to come pick him up. The sheriff arrived shortly thereafter at which time the pistol was delivered to him and’ Tony was brought to jail.

Meanwhile, McKenzie rearmed himself and searched for Tony, but abandoned the project at about 2:30 in the morning, contenting himself thereafter by charging the escapee with possession of beer, resisting arrest, pointing and aiming a deadly weapon, assault and battery with intent to kill, and armed robbery. Fortunately, the issue before us is limited to armed robbery and one of its essentials, the intent to permanently deprive the owner of his property.

In Thomas v. State, 278 So.2d 469 (Miss.1973), we repeated our former holdings that: “Under the law intent to steal is an indispensable element of robbery,” and “that where the property of another is taken with an intent to return it to the owner, the taking is not with ‘intent to steal’ and is not larceny.” (278 So.2d at 472). The issue of whether there is intent is for determination by a jury. See Williams v. State, Miss., 317 So.2d 425, decided August 4, 1975, not yet reported.

The appellant’s testimony coincides with that of the constable to a great extent, the discrepancy, if it be such, being noted from the following language of the parties:

Q. He told you you’d get your gun back, didn’t he ?
A. Well, sir, he told me I could get it back that he would leave it outside the door first and I told him to lay my gun down and he said he would leave it at Mammie Morris’s house, but he didn’t.
Q. It wasn’t his intention to keep it, was it ?
A. Yes, sir.
Q. If he told you he would leave it outside how do you arrive at that conclusion?
A. Well if it wasn’t his intent he wouldn’t never took it. That is my belief o.f it. I begged him to give it back to me.

Somewhat contrary to this Tony testified:

Q. What was your intent with reference to the gun ?
A. Just take it from him to keep him from shooting me. He was mad and I didn’t want him to shoot me and I knowed I didn’t want to do nothing to him and I didn’t want him to do nothing to me so I just took his pistol and left. That’s the reason I took it and left.
Q. What was your intent to do with his pistol?
A. I was intending to leave it on the outside.

He testified further that when he left, he was excited and frightened and forgot to leave the pistol at Miss Toot’s, but later returned it to the sheriff.

From this evidence which we have portrayed as favorably for the state as the record permits, we are unable to find a scintilla to support the jury’s verdict that the appellant intended to steal or otherwise permanently deprive Constable McKenzie of his pistol. The evidence indicates that Tony took the pistol to make his escape and the issue was not whether it was to be returned, but rather where it was to be returned, indicative certainly of wrongdoing, but surely not proof of an intent to steal. We conclude the court erred in refusing the defendant’s request for an instruction of not guilty at the conclusion of all of the evidence.

Reversed and defendant discharged of the crime of armed robbery.

GILLESPIE, C. J., RODGERS, P. J., and SMITH, ROBERTSON and WALKER, JJ., concur.

BROOM, J., took no part.


author: PATTERSON, Justice:

text:
    Mrs. Inez NICHOLS v. MODERN DIVERSIFIED INDUSTRIES, INC., et al.
    No. 48213.
    Supreme Court of Mississippi.
    Aug. 25, 1975.

      A. K. Edwards, Mendenhall, for appellant.
    Aleita M. Sullivan, Douglas Magee, Mendenhall, for appellees.
    Before PATTERSON, INZER and SUGG, JJ.
   PATTERSON, Justice:

Mrs. Inez Nichols brought suit in the Chancery Court of Simpson County to confirm a tax sale upon which she bases her title to the property in litigation and to thereby cancel the claims of Modern Diversified Industries, Inc. and George D. and Lena M. Barrett. The property comprises one-half acre of land in Simpson County upon which there is a home occupied by the Barretts. The defendants by their answer denied the validity of the tax sale and by their cross bill sought to cancel the claims of Mrs. Nichols as a cloud upon their title.

The trial court held the tax sale void and confirmed title in Modern Diversified Industries, Inc. subject to a contract of purchase held by the Barretts. It further held that Modern Diversified Industries, Inc. reimburse Mrs. Nichols and Fordie Nichols, her husband, $375 paid for a quit claim deed from the tax purchaser and any tax money they had paid on the land.

Mrs. Nichols appeals from the invalidation of the tax sale, and Modern Diversified Industries, Inc. cross-appeals from the decree directing it to pay $375 and the amount of the taxes. We affirm on direct appeal and reverse on cross-appeal.

On September 16, 1968, the one-half acre was sold to C. C. Hairston by a tax deed for the 1967 taxes. On the Simpson County Land Assessment Roll for the year 1967 under “Name of Owner” there appears “W. F. Hodge,” and in a column to the right of this name the land is described as “i/¿ a in NE14 NW14 as per DB 473, p-73, section 9, township 1, range 6.” The Notice of Tax Sales published in the Simpson County News on August 19, September 5 and September 12, 1968, described the land which was later sold to Hairston as being situated in the SE¡4 of the NW¡4 rather than in the NE¡4 of the NW14 as it appears on the land assessment roll. The land was described in the Notice to Owners of Land Sold for Taxes as A in NE14 NWV4 as per DB 473,” no page of the book being specified.

We are of the opinion that C. C. Hairston, through whom Mrs. Nichols claims, obtained no title by his tax deed since the notice of lands to be sold erroneously described the lands subject to sale to be within the SE1/4 of the NWj4 rather than within the NE1/4 of the NWJ4-

Moreover, the description on the land assessment roll, “Y¿ a in NE14 NW14.” is dependent upon the reference therein of DB 473, p-37, for validity. Pursuit of this reference or clue to Deed Book 473, page 37, reveals that one H. B. Davis conveyed by warranty deed one-half acre of land to Walker F. Hodge. The description of the one-half acre begins at the northeast corner of the Thomas M. Walker and Iranell Davis Walker property, not otherwise described, and concludes with the statement that it is a portion of that purchased by the grantor from Charles C. Mangum by deed recorded in Book 281 at page 69. Once more pursuing the reference or clue to the book and page mentioned, there is found a deed by Charles C. Mangum to H. B. Davis; however, it has no reference to the lands of Thomas M. Walker and Iranell Davis Walker from which a point of beginning can be established whereby a definitive description of the one-half acre in controversy could be made. The description on the assessment roll was inadequate to identify it with particularity. In Calmes v. Weill, 243 So.2d 408 (Miss.1971), we held:

A description of land capable of identifying a particular tract of land is a necessary part of the assessment of land for ad valorem taxes to provide adequate notice to the owner as well as to prospective purchasers at tax sales. Due process would not be afforded a landowner if his lands were assessed by a void description; nor can land be conveyed except by a writing containing a description capable of being applied to a particular tract of land. 243 So.2d at 410.

The description of the one-half-acre tract upon which the Barretts reside was not only insufficient, it did not furnish a clue from which a description identifying the one-half-acre tract as a party of the land assessments can be found. In this status it did not provide adequate notice to either the owner or to prospective purchasers of the forthcoming tax sale. We are of the opinion that Hairston obtained no title by his tax purchase and the tax deed to him was void. It follows that Mrs. Nichols acquired no title through Hairston’s tax deed. We therefore affirm on direct appeal.

The award of $375 to’ Mrs. Nichols and her husband, Fordie Nichols, reimbursing them for the consideration paid for the quit claim deed from Hairston and for the taxes was error, in our opinion, inasmuch as it was not sought by the bill of complaint and additionally, Fordie Nichols was not a party to the suit. This relief was beyond the scope of the complainant’s pleadings, including the general prayer, and was therefore erroneously made. See Barnes v. Barnes, 317 So.2d 387, 1975, not yet reported.

Affirmed on direct appeal. Reversed and rendered on cross-appeal.

GILLESPIE, C. J., RODGERS, P. J., and SMITH, ROBERTSON, WALKER and BROOM, JJ., concur.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Petitioner, v. Aguedo LUGO-RODRIGUEZ, Respondent.
    No. 44006.
    Supreme Court of Florida.
    July 30, 1975.
    Alfred D. Bieley, Miami, Leonard Riv-kind, Miami Beach, David W. Walters, Miami, Richard C. McFarlain, Asst. Director, and William B. Wiley, Asst. Staff Counsel, Tallahassee, for petitioner.
    Melvyn Kessler, Miami, for respondent.
   PER CURIAM.

This cause is before us on the petition of The Florida Bar filed pursuant to Article XVI of the Integration Rule and charging Respondent with the unauthorized practice of law. Article II, Section 2, of the Integration Rule provides:

“2. No person shall engage in any way in the practice of law in this state unless such person is an active member of The Florida Bar in good standing except that a practicing attorney of another state, in good standing, who has professional business in a court of record of this state may, upon motion, be permitted to practice for the purpose of such business only, when it is made to appear that he has associated and appearing with him in such business an active member of The Florida Bar.”

Our jurisdiction to prohibit the unauthorized practice of law stems from Article V, Section IS, Florida Constitution, which provides that this Court “shall have exclusive jurisdiction to regulate the admission of persons to the practice of law . .” This constitutional authority necessarily includes the power to prevent the unauthorized practice of law.

We issued a Rule to Show Cause, to which Respondent filed his motion to dismiss for lack of jurisdiction, arguing that this Court does not have jurisdiction to prohibit activities in this state constituting the practice of law in the field of immigration, naturalization and related matters, since that is an area which has been pre-empted by federal legislation. Briefs were filed by both parties, and upon consideration thereof this Court denied Re-spondent’s motion to dismiss. Thereafter, Respondent filed his answer, whereupon this Court appointed Judge Francis X. Knuck as Referee and directed that he should hold such hearings and take such testimony as might be necessary to establish the facts of the case. After a hearing the Referee entered the following findings of fact:

“1. This cause is properly brought by the Petitioner according to the provisions of The Florida Constitution and the Integration Rules of The Supreme Court of Florida.
“2. That the Respondent is sui juris, a resident of Dade County, Florida and is not and never has been licensed to practice law in the State of Florida.
“3. That during the year 1971, Respondent met one Carmen Enriqueta Ortega de Carlos, formerly known as Carmen Enriqueta Otero, at the house where Miss Otero was working and he represented to Miss Otero that he could get her a permit to remain in the United States although she was a citizen of Guatemala here in the United States on vacation.
“4. That the Respondent told Miss Otero that he was able to get her this permit because of the fact that he was a Notary, which to her meant a person who could arrange to get papers so that she could stay in this country.
“5. That said Miss Otero understood the word 'Notary’ to mean one who takes care of legal matters and documents, similar to a lawyer or attorney.
“6. That initially, said Miss Otero paid the Respondent $60.00 to obtain an extension for her to remain in this country and carried on her contacts with the Respondent from May of 1971 through September of the same year, at which time he also arranged for her to marry an individual for the purpose of remaining here in the United States.
“7. That the Respondent brought around certain kind of legal papers that she had to sign and her husband had to sign, for the purpose of having a Petition for Residency in the United States, for which she paid the Respondent the sum of $800.00 and as the witness put it, ‘to fix her papers for her.’ This money was paid by said witness, Miss Otero, to the Respondent in order for the Respondent to effectuate a change of her immigrant status from that of a tourist to a permanent resident.
“8. The witness indicated that although she had paid the Respondent this money so that he should get her the residency which he promised her, in fact he never got her anything and this was obtained through another ‘Notary.’
“9. I find further, that the Respondent gave Miss Otero legal advice and counsel as to her immigrant status and told her of the means by which he had intended to effectuate the change in her legal status from tourist to resident.
“10. I find that the Respondent is not listed in the United States Department of Justice or the Immigration Department as an attorney or representative.
“11. I further find that the Petitioner is authorized to bring this proceeding by virtue of appropriate action by the Board of Governors of The Florida Bar.
“12. That the Respondent obtained $800.00 from Miss Otero for the purpose of effectuating a change of her immigrant status in the United States, when in fact he had not performed as promised.
“13. I find also, that the Respondent introduced Miss Otero to her present husband as part of a scheme for her to remain in this country, all of which is contrary to the law as made and provided.
“14. I further find that on occasion of Miss Otero’s dealings with the Respondent, the Respondent filled out forms on her behalf pertaining to applications for permanent residence and other immigration matters.
“15. That the witness Otero believed she could obtain an extension from the Immigration & Naturalization Service by virtue of the activities of the Respondent Lugo.
“16. I find further that the testimony of Eusebia Montero Vides y Martinez was adduced before me while under subpoena and she indicated she met the Respondent in 1970 relative to obtaining extensions or stays from leaving the United States.
“17. I further find that Mrs. Vides conferred with him in her employer’s house where she was working as a maid, relative to her immigration problems and the matter of obtaining extensions for her, at which time the Respondent advised Mrs. Vides that he would charge her $70.00 for obtaining for her a six-month extension.
“18. I further find that the Respondent took the witness Vides to the Immigration Department and acted as her attorney; in a conference with the investigator for the Immigration authorities, a Mr. O’Kon, the witness believed that the Respondent had connections with the Immigration Department and could prepare the necessary papers for her, which in fact he did and later on, charged her an additional sum, to-wit: $400.00 for obtaining permanent residency for said witness which the Respondent told the witness he could perform by preparation of certain papers on her behalf.
“19. The witness further understood that the Respondent was a ‘Notary’ and with the witness’ limited fourth-grade education and educational barrier, she was of the opinion that a ‘Notary’ as she understood it in her native country (Colombia), was one who signed documents and took care of important papers and made out deeds.
“20. The witness further testified that the Respondent filled out documents for her relative to her immigration problem and took her to see an investigator for the United States Department of Justice, Immigration & Naturalization Service, a Mr. O’Kon, at which time he assisted her in connection with obtaining an extension of time and obtaining residency in the United States.
“21. I find further, from the testimony of the witness J. Russell Bramlett, as follows:
“a) Mr. Bramlett is a staff investigator for The Florida Bar.
“b) That Mr. Bramlett is an expert in the field of Immigration matters.
“c) That said witness Bramlett was familiar with the Code of Federal Regulations relative to definition of attorney and representative, as used in the Section of the United States Code and the Code of Federal Regulations as entered into evidence.
“d) That Mr. Bramlett was of the opinion that the Respondent represented the two ladies who testified before me, in connection with applications for permanent residence and under the law, he would be considered as a Representative in the eyes of the Immigration Service for the efforts that he performed on behalf of the ladies, but that he in fact, never filed a certificate or appearance on either case on behalf of the two ladies, whose testimony was taken before the undersigned.
“e) That in fact the witness Bramlett was familiar with and knew the Respondent prior to the hearing held before me, from the time of - 1970 or 1971 and although the Respondent accepted fees from both of these ladies, an examination of their Immigration file failed to reveal any document which appeared to have been prepared by the Respondent.
“22. Notwithstanding the fact that the Respondent failed to testify, the un-contradicted evidence adduced before the undersigned indicates that the Respondent held himself out to the public in general and these two ladies in particular, as a ‘Notary’ and one qualified to handle Immigration matters.
“23. I further find that the preparation of forms to effect a change of immigrant status requires legal training and familiarity with the Immigration Laws and Statutes of the United States and the failure to properly prepare and file such documents may and can result in deportation of the individual or individuals involved.
“24. I find that by the completion of official Immigration forms by the Respondent and/or the collection of fees as herein described, suggests to the individuals involved that the Respondent was a Notary; that he was competent and qualified to attend to such legal matters; and could fully advise, counsel and protect such individuals seeking his assistance.”

Additionally, the Referee made the following recommendations:

“1. That the Respondent AGUEDO LUGO-RODRIGUEZ, be found to have engaged in the unauthorized practice of law within the State of Florida.
“2. That the Respondent AGUEDO LUGO-RODRIGUEZ, be restrained and enjoined from the further preparation of Immigration and Naturalization forms for others, with or without charge; from advertising or holding himself out to perform said services; from otherwise engaging in the practice of law in the State of Florida.
“3. That the Respondent AGUEDO LUGO-RODRIGUEZ, be and he is found to be in contempt of The Supreme Court of the State of Florida.
“4. That the Respondent AGUEDO LUGO-RODRIGUEZ, be fined for such contempt of Court and that such other further punishment be imposed as this Honorable Court deems necessary and appropriate under the circumstances.
“5. That the costs of these proceedings be assessed against the Respondent AGUEDO LUGO-RODRIGUEZ.”

The record and the report of the Referee have been examined by this Court. We hereby approve the Referee’s finding of guilt and agree that the foregoing conduct on Respondent’s part constitutes the unauthorized practice of law. Furthermore, we adopt the Referee’s other recommendations, find that Respondent is in contempt of this Court and assess a fine against him in the amount of one thousand dollars ($1,000.00) to be paid on or before August 31, 1975, to be paid to the Clerk of this Court plus the costs of these proceedings in an amount to be assessed by The Florida Bar. It is further ordered that Respondent, Aguedo Lugo-Rodriguez, be and he hereby is permanently enjoined from engaging in the acts complained of and from otherwise engaging in the unauthorized practice of law.

It. is so ordered.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.

      . State ex rel. Florida Bar v. Sperry, 140 So.2d 587 (Fla.1962), judgment vacated on other grounds 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed. 2d 428 (1963).