text:
    OVERSEAS DEVELOPMENT, INC., a Florida Corporation, Appellant, v. DOMINION MORTGAGE CORPORATION, a Florida Corporation, Appellee.
    No. 75-910.
    District Court of Appeal of Florida, Third District.
    April 13, 1976.
    Rehearing Denied May 12, 1976.

      McCormick, Bedford & Backmeyer, Miami, for appellant.
    Turner, Hendrick, Guilford, Goldstein & McDonald, Coral Gables, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendant, Overseas Development, Inc., seeks reversal of an order denying its motion to set aside judgment on default.

On February 7, 1975 plaintiff, Dominion Mortgage Corporation, filed suit for a mortgage broker’s commission of $12,700 pursuant to an agreement between the parties. The complaint was served upon Felix S. Cabada, president of Overseas, and six weeks later on March 2, having received no responsive pleading, plaintiff moved for entry of a default against the defendant which was entered on March 24. On March 27 the plaintiff was granted a final judgment for $12,700 plus costs and interest. On May 9 defendant filed its motion to set aside the default on the ground that the complaint had been lost in transit from one lawyer to another. Defendant alleged that upon being served, Mr. Cabada took this complaint to defendant’s attorney who advised he could not represent defendant and at Mr. Cabada’s request delivered the complaint to Alejandro Briones, vice president of the defendant, for delivery to another attorney. Defendant claimed that as a result of inadvertence or excusable neglect, the complaint was lost and not received by the other attorney until after entry of the final judgment. Defendant further alleged that it had good and adequate defense as made clear from the attachments to plaintiff’s complaint. Following a hearing on motion to vacate, the trial judge entered an order of denial and defendant appeals. Defendant primarily alleges that the trial judge abused his discretion in refusing to set aside the default judgment.

The general rule with regard to setting aside judgments entered on default is that relief may be granted within the sound discretion of the trial judge upon a showing of the existence of a meritorious defense and a legal excuse for the failure to comply with the 'rules. Winter Park Arms, Inc. v. Akerman, Fla.App.1967, 199 So.2d 107 and cases cited therein.

The only ground alleged for vacation of the default judgment was that the vice president inadvertently misplaced the complaint and failed to deliver it to defense counsel until after the entry of the March 7 final judgment. We find that this failure on the part of the vice president does not constitute sufficient cause to justify the vacating of the default judgment. Cf. Winter Parks Arms, Inc., supra and Acme Fast Freight, Inc. v. Bell, Fla.App.1975, 318 So.2d 212. We also note with respect to the allegation of the existence of meritorious defenses in defendant’s motion to vacate that such defenses do not clearly appear from the attachments to the plaintiff’s complaint.

Defendant secondly argues that the trial judge erred as to the amount of damages awarded in the final judgment. We cannot agree.

The motion for default judgment having been properly granted and defendant having failed to make any appearance or file any pleading until well after the entry of the final judgment, we conclude the amount of damages cannot now be contested.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Harold Connor MINNIS and Dade County, a political subdivision of the State of Florida, Appellants, v. Minnie JACKSON, Appellee.
    No. 75-999.
    District Court of Appeal of Florida, Third District.
    April 13, 1976.
    Rehearing Denied May 12, 1976.
    Sam Daniels, John E. Finney, Miami, for appellants.
    Horton, Perse & Ginsberg, George P. Telepas, Miami, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendants Harold Minnis and Dade County appeal a $45,000 final judgment for the plaintiff entered pursuant to a jury verdict.

Plaintiff, Minnie Jackson, was injured while riding as a passenger on a County MTA bus. She filed the instant suit for damages against defendants Dade County and the bus driver, Harold Minnis, and the County admitted liability. A trial was held on the issue of damages and the jury returned a verdict for $45,000. After entry of final judgment, defense counsel discovered that the jury foreman, Daniel Medvin, had given false answers during voir dire examination, i. e. upon being asked whether any members of his family had been in an accident where they had been injured, Medvin replied in the negative when, in fact, his daughter had been injured in a county bus a year before. Although no legal action had been instituted, a claim had been filed with the county. Defense counsel moved for a new trial on this ground. A rule to show cause was issued and a hearing was held at which the jurors were questioned by counsel and the trial judge. Medvin denied that his fairness as a juror had been affected or that he had played an active role in the jury discussions leading to a verdict. The other remaining jurors were questioned and the fact was brought out that Medvin • recommended that the verdict be high enough to allow the plaintiff to pay her attorney. The trial judge denied the motion for new trial and this appeal ensued. We reverse.

The well established rule is that the failure of a juror to honestly answer material questions propounded to him on voir dire examination constitutes bad faith requiring his disqualification from serving on the jury in the case. Seay v. State, 139 Fla. 433, 190 So. 702 (1939). Further, the right of counsel to challenge a juror for cause or peremptorily being indispensible to the successful operation of our jury system, the right of fair trial by an impartial jury is destroyed when the right to make an intelligent judgment as to whether a juror should be challenged is lost or unduly impaired. When this occurs, the verdict should be set aside and a new trial granted. Ellison v. Cribb, Fla.App.1972, 271 So.2d 174. For the question is not whether an improperly established tribunal acted fairly, but whether a proper tribunal was established. Skiles v. Ryder Truck Lines, Inc., Fla.App.1972, 267 So.2d 379.

The final judgment is reversed and the cause remanded to the trial court for a new trial on the issue of damages.


text:
    Clemence Levy BELLMAN, Appellant, v. Dean S. CAMPBELL and Nona O. Campbell, his wife, et al., Appellees.
    No. 75-911.
    District Court of Appeal of Florida, Third District.
    April 13, 1976.
    Rehearing Denied May 12, 1976.
    Carey, Dwyer, Austin, Cole & Selwood and Steven R. Berger, Miami, for appellant.
    Paige & Catlin, Miami, for appellees.
    Before BARKDULL, C. J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See: Langley v. Irons Land & Development Co., 94 Fla. 1010, 114 So. 769; Campbell v. Bellman, Fla.App.1974, 293 So.2d 795; § 59.041, Fla.Stat.


text:
    Ruth WATSON, Appellant, v. John WATSON, Sr. and Jean Mary Watson, Appellees.
    No. 75-594.
    District Court of Appeal of Florida, Third District.
    April 20, 1976.
    Rehearing Denied May 12, 1976.

      Attias & Raskin, Miami, for appellant.
    Richard H. W. Maloy, Coral Gables, Helen T. Hope, Miami, for appellees.
    Before HENDRY and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellant, respondent below, appeals a final judgment of adoption entered by the chancellor declaring her minor child to be the legal child of appellees, petitioners below.

Appellees filed a petition for adoption in the circuit court seeking to adopt John Watson, Jr., a minor child. Appellee John Watson, Sr., is the natural father of the child, and appellee Jean Mary Watson, at all times relevant to this appeal, was his legal wife. Subsequently, the matter was referred to a general master who, after discovery and several hearings, made his report to the chancellor. This report states, in pertinent part, as follows:

“THIS CAUSE having come on to be heard before me as General Master upon the Petition for Adoption and other pending matters, and the Master being advised in the premises reports:
“1. That said cause came on for numerous hearings; that at all hearings herein, the parties were present and were represented by counsel; that the testimony of numerous witnesses was taken; and that many documents were received in evidence.
“2. That from the testimony and evidence submitted, the Master finds it is in the best interests and welfare of JOHN WATSON, JR. that the adoption be granted.
“3. That from the testimony and evidence submitted, the Master finds that the natural mother, RUTH WATSON has abandoned JOHN WATSON, JR. With reference to the abandonment, it is evidenced by the voluntary conduct of RUTH WATSON during the period of time in which she engaged in her illegal activities that culminated in her being imprisoned for a period of nine months. This is a voluntary action on the part of RUTH WATSON which would necessarily have to be considered as abandonment or a lack of sufficient concern for her obligation as a parent.
“4. We are not here dealing with a case of a stranger to the blood applying for the adoption of a child. We have a contest between the two natural parents of the child. The child is remaining in a home with his half-brothers and half-sisters. RUTH WATSON’s children are his half-brothers and half-sisters as are JOHN WATSON, SR.’s children his half-brothers and half-sisters. The relationship is simply that one side is his natural mother and the other side is his natural father.
“5. The evidence further indicates that JOHN WATSON, JR. has been in close and constant contact with his father over the entire period of his life except for a very short period. The last 2\/} years, as indicated by the evidence submitted and the Report of the Representative of the State of Florida, Division of Family Services, have been with his father. In order to remove him, it would be necessary to show that the environment is deleterious to him. The reports and all the evidence submitted indicate that it is not deleterious.
“6. The evidence does not establish that RUTH WATSON has rehabilitated herself since her release from prison. It is established that she has made good strides in that direction. However, the Master does not recommend playing sociological roulette with JOHN WATSON, JR’s life. We cannot accept the possibility for an established fact and this is just what we are dealing with, an established fact about a home environment that is found to be stable;” to promote his proper psychological, emotional, and physical growth. The evidence indicates that the home of JOHN WATSON and JEAN MARY WATSON is a stable environment for the child and can promote JOHN WATSON, JR.’s proper psychological, emotional and physical growth. On the other side of the fence, we would be dealing with a type of sociological roulette that if RUTH WATSON did have a regression again to her former behavior, which behavior caused her to be incarcerated on three different occasions, as did occur in the past, then we would have JOHN WATSON, JR. at a later age thrown into a similar situation all over again. The evidence does not justify this situation, nor does it indicate that it would be in the best interests for the child. In fact, the evidence presented indicates that it would be contrary to the best interests of the child.
“7. The Master recommends further not only that the adoption be granted, but that the adoptive parents, JOHN WATSON, SR. and JEAN MARY WATSON will have complete control as to the child’s association. . . . ”

Thereafter, on March 25, 1975, the chancellor entered a final judgment of adoption declaring John Watson, Jr., to be the legal child of appellees. From this final judgment, appellant appeals.

Appellant contends the trial court erred by finding that she had abandoned her child and in granting appellee’s adoption petition. Appellant argues, basically, that there was insufficient evidence to support the finding of abandonment; and, absent such evidence, the only other ground for permitting the adoption, without her consent, was that she was unfit as a parent, which was not established by the evidence.

After a careful review of the record, we hold that there is sufficient competent evidence to support the finding of the chancellor that appellant had abandoned her child. Because this finding has not beeri shown to be clearly erroneous, it will not be set aside on appeal. See Smith v. Lyst, Fla.App.1968, 212 So.2d 921; Moore v. Keen, Fla.App.1965, 181 So.2d 29, and 2 Fla.Jur., Appeals §§ 343 and 349. Due to this determination, it is unnecessary for us to reach appellant’s second point on appeal.

We have reviewed the record, all points in the briefs, and arguments of counsel in the light of the prevailing principles of law, and have concluded that no reversible error has been shown. Therefore, for the reasons stated and upon the authorities cited, the final judgment of adoption appealed is affirmed.

Affirmed.


text:
    STATE of Florida ex rel. FLAGSHIP FIRST NATIONAL BANK OF MIAMI BEACH, a National Banking Association, formerly known as the Miami Beach First National Bank as Trustee, Appellant, v. The CITY OF KEY WEST, Florida, et al., Appellees.
    No. 75-654.
    District Court of Appeal of Florida, Third District.
    April 20, 1976.
    Rehearing Denied May 12, 1976.
    Therrel, Baisden, Peterson, Stanton & Stillman and .Howard A. Setlin, Miami Beach, for appellant.
    Franklin, Ullman, Kimler, Entin & Katz, North Miami Beach, for appellees.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   PER CURIAM.

Petitioner appeals from an order of the Circuit Court of Monroe County denying the issuance of an alternative writ of mandamus, and granting respondents’ motions to dismiss the petition.

Appellant contends that the allegations of its petition were sufficient to state a prima facie case for the issuance of the writ and, therefore, the trial court erred in denying the writ and dismissing the petition. We find merit in appellant’s contentions and reverse the order appealed.

It is our view that the petition clearly shows appellant’s legal right to the performance of the alleged duty sought to be required of appellees; therefore, the alternative writ of mandamus should have been granted and the motion to dismiss should have been denied.

Reversed and remanded for further proceedings.


text:
    JASON-FORTIER, INC., Appellant, v. MANUFACTURERS ASSOCIATES OF FLORIDA, INC., et al., Appellees.
    Nos. 75-845, 75-846.
    District Court of Appeal of Florida, Third District.
    April 20, 1976.
    Rehearing Denied May 12, 1976.

      Sams, Anderson, Post & Ward, Male & Bloom, Robyn Greene, Miami, for appellant.
    Edward C. Vining, Jr., Miami, for appel-lees.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellant, plaintiff below, appeals an order of dismissal and directed verdict entered by the trial court in favor of appel-lees Manufacturers Associates of Florida, Inc., Apgar & Markham Construction Company, Ross E. Apgar, and Oneeda W. Jenkins on their motions for a directed verdict. Appellant also appeals a final judgment entered by the trial court, pursuant to a jury verdict, in favor of appellee Ronald Markham.

On April 3, 1974, appellant, a real estate brokerage firm, • filed a complaint against appellees seeking compensatory and punitive damages for breach of a brokerage agreement, tortious interference with advantageous business relations, and conspiracy to interfere with advantageous business relations. Thereafter, a jury trial was held on February 13 and 14, 1975. At the close of appellant’s case, the trial court directed a verdict in favor of appellees Ross E. Apgar and Oneeda W. Jenkins and struck appellant’s claim for punitive damages.- At the close of the remaining appel-lees’ case, the trial court directed a verdict in favor of appellees Manufacturers Associates of Florida, Inc., and Apgar & Markham Construction Company. The cause went to the jury only on the issue of ap-pellee Ronald Markham’s breach of the brokerage agreement. The jury returned a verdict in favor of appellee Ronald Markham.

Appellant’s posttrial motions for a new trial, for a judgment n. o. v., to set aside the judgment and verdict, and to vacate order of dismissal and directed verdict were denied. These consolidated appeals, challenging the entry of directed verdicts in favor of four appellees and the entry of the final judgment on the jury verdict in favor of one appellee, followed. Both the order of dismissal and directed verdict, and the final judgment were dated February 21, 1975.

On appeal, appellant contends that the trial court erred as follows: (1) by directing a verdict in favor of the four appel-lees; (2) in striking its claim for punitive damages; (3) by giving prejudicial instructions to the jury on its claim against appellee Ronald Markham; (4) in denying its motion for a new trial on the grounds that the jury verdict in favor of appellee Ronald Markham was against the manifest weight of the evidence; (S) and by excluding a certain agreement from the evidence. Appellees’ contentions are to the contrary.

We have considered the record, all points in the briefs, and arguments of counsel in the light of the controlling principles of law, and have concluded that no reversible error has been demonstrated. See Fernandez v. Arocha, Fla.App.1975, 308 So.2d 45; Kitler v. Green’s Fuel of Florida, Fla.App. 1969, 225 So.2d 442; and 2 Fla.Jur., Appeals § 316. Therefore, for the reasons stated and upon the authorities cited, the order and final judgment appealed are affirmed.

Affirmed.


author:
PER CURIAM.
      NATHAN, Judge

text:
    Donnie Lee IVORY, Appellant, v. The STATE of Florida, Appellee.
    No. 75-943.
    District Court of Appeal of Florida, Third District.
    April 20, 1976.
    Rehearing Denied May 12, 1976.
    Phillip A. Hubbart, Public Defender, and Mark King Leban, Asst. Public Defender, and Thomas G. Murray, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira Loewy, Asst. Atty. Gen., for appellee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.) Associate Judge.
   PER CURIAM.

The facts on this appeal have been accurately set forth in the dissenting opinion. The only question on appeal is whether the errors which occurred deprived the defendant of a fair trial upon the charge of murder in the first degree. Because the defendant was found guilty of only the lesser included offense of manslaughter and because the medical examiner’s report could not, under the facts of this case, have contributed to the defense of self-defense or have further reduced the crime to assault, we reach the conclusion that the error was harmless. Cf. Cornelius v. State, Fla. 1950, 49 So.2d 332; and Culbertson v. State, Fla.App. 1975, 306 So.2d 142.

Affirmed.

NATHAN, Judge

(dissenting).

I respectfully dissent. Donnie Lee Ivory, the defendant, was charged by indictment with first degree murder. During trial, the court reduced the charge to second degree murder and after much deliberation the jury found the defendant guilty of manslaughter. Ivory was convicted of manslaughter and sentenced to five years in the state penitentiary.

The evidence showed that Ivory owed the victim, one Robert Carolina, $5 for a gambling debt. On October 28, 1974, at the Ponderosa Bar, the victim saw Ivory with a check and demanded immediate payment. The two began a fist fight which was broken up. Fifteen minutes later, Ivory returned to the Ponderosa and paid the $5 debt to Carolina who then followed Ivory outside. There was an argument; Carolina pointed his finger in Ivory’s face and threatened to kill him; Ivory saw a gun in Carolina’s waist band, grabbed it and shot Carolina to death. Ivory contends that he acted in self defense. Several witnesses, including two police officers, testified that Carolina had a bad reputation in the community as a violent person.

The medical examiner testified as to the wounds received by the deceased as a result of the shooting. The medical examiner’s report was not admitted into evidence.

After retiring to consider its verdict, the jury sent out two notes requesting the following: the charge to the jury; the defendant’s statement; the medical examiner's report and “the brief definitions of third degree murder and the various types of manslaughter." In response, the court advised the bailiff without notifying counsel, that the jury “could have the documentary exhibits, not realizing that one of the items had not been in evidence.” The request for the charge was denied, but the medical examiner’s report was given to the jury and remained with the jury for approximately 45 minutes before the court requested that the bailiff take it away. The court told counsel that, “It appears that a medical examiner’s report, not in evidence was submitted to the jurors in error.” The court denied the defendant’s motion for a mistrial, but gave the jury a curative instruction to disregard the written medical examiner’s report which was not in evidence. “You may, however, rely on the testimony of the medical examiner that you have heard from the witness stand.” Ivory was found guilty of manslaughter and was convicted and sentenced.

The thrust of Ivory’s appeal is that the trial court erred in permitting the medical examiner’s report to be taken into the jury room in response to a request from the jury where the report had never been admitted into evidence, and in failing to give the defendant and his counsel the opportunity to be present and object or request alternative instructions, thereby depriving the defendant of a fair trial and due process of law. I agree with both points.

It is provided in Rule 3.400, RCrP, entitled “Materials to the Jury Room,” that the court may permit the jury, upon retiring for deliberation, to take to the jury room, “(d) all things received in evidence other than depositions.” The entry into the jury room of unadmitted evidence amounts to an impermissible intrusion of the jury’s deliberative process. State ex rel. Pryor v. Smith, Fla.App.1970, 239 So.2d 85. See Smith v. State, Fla.1957, 95 So.2d 525, wherein the judge gave the jury, out of the presence of the defendant and defense counsel, a dictionary which was not in evidence.

It is provided in Rule 3.410, RCrP, entitled “Jury Request to Review Evidence or for Additional Instructions,” that

“After the jurors have retired to consider their verdict, if they request additional instructions or to have any testimony read to them they shall be conducted into the courtroom by the officer who has them in charge and the court may give them such additional instructions or may order such testimony read to them. Such instructions shall be given and such testimony read only after notice to the prosecuting attorney and to counsel for the defendant.” (emphasis added)

Accord Slinsky v. State, Fla.App.1970, 232 So.2d 451, remanding the cause for a new trial where the jury, while deliberating, requested that certain testimony be read back to them and the trial court summarily denied the request outside the presence of the defendant and without making inquiry, opening court or advising counsel for the State or for the defense.

In view of the defense of self defense interposed by the defendant, Ivory, in the instant case, and based on the close factual situation, whether Ivory’s actions were indeed taken in self defense, it is my opinion that the medical examiner’s report was inflammatory and highly prejudicial in affecting the jury’s verdict of manslaughter. The in-court testimony of the medical examiner was neither so detailed nor illustrar tive as the written report which the jury had for forty-five minutes, describing the bullet wounds and numerous other aspects of the deceased’s person in far more detail than was necessary to establish the fact that Carolina was deceased and the nature of the wounds resulting in death.

The State contends and the majority holds, that the court’s error, if any, was harmless since Ivory was merely convicted of manslaughter. I do not agree. An error should not be held harmless if there is a reasonable possibility that it might have contributed to the conviction. Bennett v. State, Fla.1975, 316 So.2d 41, and cases cited therein.

From the jury’s request for definitions of third degree murder and manslaughter, it appears that at least one, if not all, of the jurors did not understand a critical portion of the court’s instructions, namely the definition of the crimes and lesser included offenses with which Ivory was charged. Considering the court’s failure to notify counsel of the jury’s request for such instructions or to give counsel an opportunity to be heard thereon, together with the inflammatory nature of the medical examiner’s report, which the jury had for 45 minutes, even though it had not been admitted into evidence, I find that reversible error has been committed and would remand the cause for a new trial.


text:
    William BITTNER, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1033.
    District Court of Appeal of Florida, Third District.
    April 20, 1976.
    Rehearing Denied May 12, 1976.

      Phillip A. Hubbart, Public Defender, and Harold Mendelow, Sp. Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and J. Robert Olian, Asst. Atty. Gen., and Charles L. Hauck, Legal Intern, for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

The appellant, William Bittner, and a co-defendant, were charged by information with two counts of robbery. The trial court denied Bittner’s motions to suppress the evidence seized by the police and to suppress the pretrial show-up identification. Bittner changed his plea to nolo con-tendere, reserving the right to appeal the denial of his motions to suppress. He was convicted and sentenced to five years in the State penitentiary.

The facts briefly stated are that, while driving home from a late dinner, Tony No-gueras and Marie Sanchez picked up two hitchhikers, Bittner and the co-defendant, Reed. When Tony stopped the car to let them out, Bittner grabbed Tony around the throat from behind and told him to empty his pockets. Tony and Marie were forced' to give the two men some cash, a gold-plated silver dollar, a silver necklace with a charm on it and a 1958 quarter with a hole in it. The robbery took place in a black neighborhood. Police arrived at the scene and were told by a bystander that two white males entered a nearby building which was a live-in drug rehabilitation center. The police went to the building without an arrest or search warrant, stated their purpose, were admitted by a resident and were advised by either the house manager or a resident that there were two white men in residence who fit the description given by the police. The officers were directed to the living area, consisting of small cubicles. Bittner’s cubicle had no door, but there was testimony that a sheet partially covered the entrance to it and that some of the stolen items described by the victims were in plain view on top of Bittner’s dresser. The officers went into the cubicle, got Bittner out of bed and placed him under arrest. He was then driven in a police car to the home of one of the victims where Tony and Marie viewed and identified him.

Bittner filed a motion to suppress the evidence seized from the dresser in his cubicle, and a motion to suppress the show-up 'identification in the police car at the victim’s residence. Both motions were denied and this appeal ensued.

The general rule, as set out in Benefield v. State, Fla.1964, 610 So.2d 706, 708, is that in order for evidence seized without a search warrant to be admissible at trial, it must be the product of a search incident to a lawful arrest. The lawfulness of an arrest without warrant, in turn, must be based upon probable cause, which exists where the facts and circumstances within the officer’s knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been committed. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; Benefield v. State, supra. In the instant case, the officers had probable cause for arrest based on the report of the robbery, the description of the robbers and the information concerning two white males fitting the description of the robbers in this building in a black neighborhood. The evidence showed that the police announced their purpose and were voluntarily admitted into the building. Accordingly, we find that the officers were justified in arresting Bittner without a warrant, pursuant to § 901.15, Fla.Stat., and that the circumstances of their entry complied with the requirements of Bene-field v. State, supra.

The test for identification stemming from pretrial confrontation is set out in Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401, 411, as follows :

“. . . Whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive.
(T)he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.”

Based on the totality of the circumstances of the show-up identification in this case, we find that the trial court’s denial of the motion to suppress the identification is amply supported by evidence in the record. See this court’s recent decision in Glas v. State and Diaz v. State, 329 So.2d 341 (1976).

Affirmed.


text:
    George TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 75-1435.
    District Court of Appeal of Florida, Second District.
    April 23, 1976.

      Jack O. Johnson, Public Defender, Steven H. Denman, Asst. Public Defender, and David S. Bergdoll, Research Asst., Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was charged in a two count information with robbery and using a firearm in the commission of a felony, to wit: robbery. A jury trial culminated in verdicts of guilty as charged in each count of the information. The court adjudicated appellant guilty of robbery and using a firearm in the commission of a felony and sentenced him to five (S) years imprisonment, less the time spent in the Pinellas County jail.

The firearm used in the commission of the offense charged in Count II was the same weapon used during the commission of the robbery charged in Count I. It is now settled case law of this state that where two offenses are facets of the same criminal transaction, the trial court can only impose sentence for the higher offense following conviction for both offenses. Hence, any sentence imposed herein as to the use of a firearm while in the commission of a felony conviction is improper. Cone v. State, Fla.1973, 285 So.2d 12.

Further, the five year sentence imposed herein is a general sentence and thus unlawful. Darden v. State, Fla.App.2d 1975, 306 So.2d 581; Haddon v. State, Fla.App.2d 1975, 307 So.2d 238.

Accordingly, the judgments are affirmed, but the general five (5) year sentence is hereby vacated and the case remanded for resentencing on the judgment of guilt for the offense of robbery. Further, the judgment and sentence entered by the lower court states that appellant entered a plea of guilty, whereas the record affirmatively reflects that appellant pled not guilty and a jury trial was held which culminated in verdicts of guilty. Thus, the trial court is hereby directed to correct the judgment and sentence to indicate that appellant was found guilty by a jury of the offenses charged. In all other respects the judgments are affirmed.

HOBSON, Acting C. J., and GRIMES and SCHEB, JJ., concur.


author: SCHEB, Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation, Appellant, v. Newton F. WHITE, Appellee.
    No. 75-1138.
    District Court of Appeal of Florida, Second District.
    April 28, 1976.

      A. H. Lane, of Langston, Lane, Massey, Trohn, Clarke & Bertrand, Bartow, for appellant.
    David J. Williams, of Stanley, Durrance & Wines, Auburndale, for appellee.
   SCHEB, Judge.

Appellant, State Farm, challenges the trial court’s holding which allows the ap-pellee White to aggregate or “stack” his uninsured motorist coverage in an underin-sured motorist situation. We affirm.

White was injured in an automobile accident on May 9, 1974. Beasley, the alleged negligent motorist carried $10,000 per person automobile liability coverage. White, who maintained three separate policies with State Farm on three separate vehicles, each with $10,000 uninsured motorist coverage, sought a declaratory judgment that he could “stack” his coverage.

Fla.Stat. § 627.727, relating to uninsured motorist coverage was amended effective October 1, 1973, to provide in (2) (b) that an uninsured motorist now also includes one who maintains liability insurance, but whose insurer:

“Has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist’s coverage.”

We note that this provision, now commonly referred to as “underinsured motorist coverage,” does not restrict a policy holder to any one policy.

It is now an accepted principle of law to allow “stacking” of uninsured motorist coverage. Sellers v. Government Employees Insurance Co., Fla.App.1st 1968, 214 So.2d 879; Tucker v. Government Employees Insurance Co., Fla.1974, 288 So.2d 238. Since the 1973 amendment to the statute includes an underinsured motorist within the definition of an uninsured motorist, the reasoning in the cited cases appears controlling. We therefore find no logical reason White should not be permitted to stack his coverage in respect to an underinsured motorist.

Accordingly, we hold the trial court was correct in entering its declaratory judgment that State Farm was obligated to White in respect to the difference between the Beasley’s coverage of $10,000 and White’s total uninsured coverage of $30,000. In this and all other respects the judgment of the trial court is affirmed.

HOBSON, Acting C. J., and GRIMES, J., concur.


author: McNULTY, Chief Judge.

text:
    In re ESTATE of LeRoy DeROCHE, Deceased. Marie Pfaff DeROCHE and Leonard M. DeRoche, as Joint Personal Representatives of the Estate of LeRoy DeRoche, Deceased, Appellants, v. Violet MITCHELL, Appellee.
    No. 75-1172.
    District Court of Appeal of Florida, Second District.
    April 23, 1976.
    Rehearing Denied May 18, 1976.
    Raymond E. Miller, Venice, for appellants.
    Wayne Floyd, Wilson, Wilson & O’Connell, Venice, for appellee.
   McNULTY, Chief Judge.

Appellants Marie Pfaff DeRoche and Leonard M. DeRoche, as joint executors of the Estate of LeRoy DeRoche, deceased, appeal from an order construing the testator’s will as creating a precatory trust giving appellee, Violet Mitchell, a life estate in a mobile home and lot. We think the trial court erred in such construction and reverse.

The following circumstances existed both at the time of the will’s execution and at the testator’s death. Testator was the sole owner of the mobile home which was located on a lot owned by Venice Bay Trailer Park, Inc. Testator also owned fifty-three and one-half shares of the eighty outstanding shares of that corporation.

In his will, testator, among other things, bequeathed twenty of his shares in the corporation to appellant, Marie DeRoche, and the remainder equally to his brothers, Kenneth and the other appellant, Leonard DeRoche. Paragraph THIRD of the will contains the following language which the court construed to create a precatory trust in appellee, to wit: a life estate in the aforementioned mobile home and lot:

“THIRD: It is my desire that MRS. VIOLET MITCHELL be allowed to continue to live, rent free, on the lot and in the mobile home currently occupied by her, for and during the period of her natural life. I request that each of the three beneficiaries of my interest in Venice Bay Trailer Park, Inc., do their utmost to carry out my desire. In the event said beneficiaries sell the said corporation, I hope that provisions are made to insure that Mrs. Violet Mitchell shall have a life interest in the lot and mobile home currently occupied by her.”

While a testator’s use of precatory language may establish a trust, the language and surrounding circumstances must demonstrate an intention to impose a legal duty upon a legatee to carry out the desired purpose and not leave the legatee free to carry it out or not as he should choose even though clearly the testator had hoped that he would carry it out.

Nothing on the face of the will nor in the surrounding circumstances herein mandates the imposition of a legal duty on the legatees. Additionally, indeed, the courts have said that if the precatory words refer in whole or in part to property other than that bequeathed or devised by the testator, the words do not create a trust. Here, the language of Paragraph THIRD refers to a life estate in both the mobile home owned by the testator and the' lot owned by the corporation. Clearly, the testator could, have created a trust in the mobile home, but he totally lacked the power of disposition over the lot not owned by him. In neither case, in any event, was the present rule satisfied. No trust was created.

In view whereof, the order appealed from should be, and it is hereby, reversed; and the cause is remanded for further pro-i ceedings not inconsistent herewith.

HOBSON and GRIMES, JJ., concur.

      . See Magnant v. Peacock (1946), 157 Fla. 271, 25 So.2d 566.

      . See G. Bogert, Trusts § 48 (2d ed. 1965) ; 5 W. Bowe and D. Parker, Page on Wills § 40.5 (3962) ; Restatement, Second, Trusts § 25 (1959). The earlier, and now discarded, view of the English courts was that, absent peculiar circumstances, precatory words were presumed to create a trust if it were shown that the testator desired that the legatee should make a particular disposition of the property. A legal obligation upon the legatee was not required. 1 A. Scott, Trusts § 25.2 (2d ed. 1956).

      . See Loomis Institute v. Healy (1922), 98 Conn. 102, 119 A. 31; 5 W. Bowe and D. Parker, Page on Wills § 40.5 (1962) ; G. Bogert, Trusts § 48 (2d ed. 1965). 1 A. Scott, Trusts § 25.1 (2d ed. 1956).


text:
    Edmund BROWN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 74-1560.
    District Court of Appeal of Florida, Fourth District.
    April 30, 1976.
    Rehearing Denied May 19, 1976.

      Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., and Harry M. Hipler, Legal Intern, West Palm Beach, for appellee. j
   PER CURIAM.

Appellant, stopped for speeding, was arrested for and charged with possession of marijuana after the traffic officer’s search of the vehicle driven by appellant disclosed a marijuana cigarette under the front seat and some packages of marijuana tightly wrapped in a towel on the back seat. Appellant entered a plea of nolo contendere expressly reserving the right to appeal denial of his motion to suppress.

The arresting officer described appellant, who accompanied the officer to the latter’s vehicle, as sober, neatly dressed, considerate, very cooperative, and completely coherent. Having issued the traffic citation, the officer returned to appellant’s vehicle to check the inspection sticker. Shining his flashlight on the inspection sticker, he observed, on the dashboard of the car, what he suspected were cannabis seeds. The officer then detected an odor coming from appellant’s person which the officer thought might be either the odor of burned or burning marijuana, or the odor of appellant’s perfume or aftershave lotion. Concluding on these facts that he had probable cause to search the vehicle, the officer, nonetheless, asked appellant to give permission. Initially appellant declined to give consent, but after the officer indicated that he intended to search the vehicle anyway and persuaded appellant that permission would make appellant’s record look better, appellant replied, “If you are going to do ' so anyway, go ahead.” Appellant, not then under arrest, was not in nor near the vehicle immediately prior to or during the search. While we have not recited all of the facts, none have been omitted which would strengthen the State’s case.

Probable cause cannot be based on mere suspicion, but must be based on facts known to exist. Kraemer v. State, 60 So.2d 615 (Fla.1952); Bailey v. State, 295 So.2d 133 (4th DCA Fla. 1974), rev’d on other grounds, 319 So.2d 22 (Fla.1975). Here, the police officer’s observation of what he only suspected to be marijuana seeds, coupled with nothing more than a suspicion that the odor emanating from appellant was that of burned or burning marijuana, was insufficient to give the officer probable cause to believe that the vehicle otherwise contained contraband so as to justify a general search of the vehicle. The “plain view” doctrine is not applicable because the only matter within the officer’s view from outside the car were the seeds, and they were neither recognized as marijuana seeds by the officer nor were they ever seized as evidence. The search cannot be upheld on the basis of appellant’s consent as the facts outlined show at most submission to apparent authority, but do not show clearly and convincingly a waiver of a constitutional right. See, Bailey v. State, 319 So.2d 22 (Fla.1975); Talavera v. State, 186 So.2d 811 (2nd DCA Fla.1966).

It was error to deny appellant’s motion to suppress the tangible evidence seized as a result of the search of the vehicle. The judgment is reversed and the cause remanded with directions that appellant be permitted to withdraw his plea.

REVERSED and REMANDED.

WALDEN, C. J., and OWEN, J., concur.

CROSS, J., dissents.


text:
    CONTINENTAL EQUITIES, INC., Petitioner, v. C. V. GALARDI et al., Respondents.
    No. BB-426.
    District Court of Appeal of Florida, First District.
    May 4, 1976.
    Fredrick L. Rice, Rice & Kreidler, Jacksonville, Tom Maxey, Peters, Maxey, Short & Morgan, Coral Gables, for petitioner.
    Arnold H. Slott, Frederick J. Simpson and William Lee Allen, Jacksonville, for respondents.
   PER CURIAM.

By a notice of appeal and an instrument entitled “Motion to Stay Trial Proceedings”, Continental Equities, Inc., seeks review of certain orders entered by the trial court denying its motion to be substituted as the real party in interest for the defendants, C. V. Galardi and Minna T. Galardi, his wife. The motion and its attachments are treated as a petition for writ of common law certiorari.

Factual allegations which are germane to this proceeding are: On February 16, 1976, by way of a foreclosure action, Continental acquired a certificate of title to the lands which had previously been acquired by an order of taking by the Jacksonville Transportation Authority; all interests of the Galardis in the subject lands were extinguished by reason of the foreclosure action ; Continental’s motion to be substituted as the real party in interest was denied by the trial court; trial for the purpose of establishing the compensation to be paid for the land taken is set for May 10, 1976.

A prima facie case has been shown by Continental that the ruling, if erroneous, constitutes a departure from the essential requirements of law for which there will be no adequate remedy by appeal after final judgment. Certiorari is granted. (1 Cran-dall, Florida Common Law Practice, § 472)

Continental’s Motion to Stay Trial Proceedings and Continental’s Motion to Consolidate this proceeding with its appeal in this cause in this Court’s Case No. BB-13S are granted. Sua sponte, the cause is expedited. Continental shall have 30 days within which to file its record on appeal in this court. Each succeeding stage for perfecting the appeal is shortened to one-half of the time schedule set out in Florida Appellate Rule 3.6, subd. j.

RAWLS, Acting C. J., and MILLS and SMITH, JJ., concur.


author: SMITH, Judge.

text:
    DEPARTMENT OF REVENUE OF FLORIDA, an agency of the State of Florida, and Robert Shevin, as Attorney General of the State of Florida, Appellants, v. YOUNG AMERICAN BUILDERS, a Florida Corporation, and A. Curtis Powers, as Clerk of the Circuit Court in and for Alachua County, Florida, Appellees.
    No. AA-209.
    District Court of Appeal of Florida, First District.
    April 2, 1976.
    Rehearing Denied May 18, 1976.
    Robert L. Shevin, Atty. Gen., and Zol-lie M. Maynard, Jr., Asst. Atty. Gen., for appellants.
    Leonard E. Ireland, Jr., Clayton, Duncan, Johnston, Clayton, Quincey, Ireland & Felder, Gainesville, for appellee Young American Builders, a corporation. No appearance for appellee Powers.
   SMITH, Judge.

By interlocutory appeal the Department of Revenue and Attorney General complain of the circuit court’s order denying their motion to dismiss an action by Young American Builders, a corporation, for an injunction against the application to Builders of the Department’s Rule 12A-4.13(22), which Builders alleges violates the due process clauses of the Florida and United States Constitutions. The Department and Attorney General assert that Builders has an administrative remedy under ch. 120, F.S., and consequently that the circuit court lacks jurisdiction.

The questioned Rule provides in pertinent part that the documentary stamp tax payable on a deed under ch. 201, F.S., shall be calculated on the total price of a home, including house and lot, when developed by a corporation which conveys the lot to a homesteader and then builds his house on it. The Rule provides that “the critical factor” in determining whether to tax the transaction as a unity “is the intention of the parties.”

Builders’ complaint asserts that the Rule is unconstitutional because there is no opportunity for a hearing before its application by the Department and because it creates an “irrebutable presumption” that specified transactions are “joint venture contracts” or “package deals.” The Department and Attorney General aver that a ch. 120, F.S., hearing to determine whether Builders’ transactions are “package deals” is precisely what the Rule contemplates and what ^Builders should have sought administratively before seeking judicial relief. See Pest Control Comm’n of Fla. v. Ace Pest Control, Inc., 214 So.2d 892 (Fla.App. 1st, 1968); Odham v. Foremost Dairies, Inc., 128 So.2d 586, 593 (Fla. 1961).

It is clear to us that the circuit court has jurisdiction to act and properly denied the motion to dismiss. It may well be, as the Department and Attorney General assert, that the attacked Rule, far from creating an “irrebutable presumption” against Builders, should be construed as envisioning an administrative hearing on the appropriateness of the application of the Rule to Builders. The trial court may agree that a hearing is necessarily implied in the Rule’s concern for “the intention of the parties”. But the relative merits of the parties’ positions do not deprive the circuit court of jurisdiction to determine the merits. If as Builders contends the Rule is on its face unconstitutional by due process standards, there is no remedy for it in ch. 120, F.S.1975. The Administrative Procedure Act could not and does not relegate Fourteenth Amendment questions to administrative determination, nor restrict the occasions for judicial consideration of them by reference in § 120.73 to ch. 86, F.S., nor otherwise impair the judicial function to determine constitutional disputes. Art. II, § 3, Fla.Const.; State ex rel. Atlantic Coast Line R. Co. v. State Board of Equalizers, 84 Fla. 592, 94 So. 681 (1922) ; State of Fla., Dep’t of Admin., Div. of Personnel v. State of Fla., Dep’t of Admin., Div. of Admin. Hearings, et al., 326 So.2d 187 (Fla.App. 1st, 1976), and cases cited.

This interlocutory appeal having been found to be without substantial merit (Rule 4.2c, F.A.R.), it is

DISMISSED.

BOYER, C. J., and RAWLS, J., concur.


author: PER CURIAM. CROSS, Judge

text:
    Robert K. PAQUIN et al., Appellants, v. CITY OF LIGHTHOUSE POINT, a municipal corporation under the laws of Florida, and L. W. Quick, as Chief of Police of the City of Lighthouse Point, Appellees.
    No. 75-2.
    District Court of Appeal of Florida, Fourth District.
    April 23, 1976.
    Rehearing Denied May 19, 1976.
    Harry G. Carratt of Morgan, Carratt & O’Connor, Fort Lauderdale, for appellants.
    Richard H. Roth, Pompano Beach, for appellees.
   PER CURIAM.

Upon consideration of the briefs, oral argument and the record on appeal we are of the opinion that the appellants were improperly'classified as “employees” of the appellee-city which classification resulted in the unauthorized termination of their employment as policemen. The law recognizes that the status of a policeman 'is that of an “officer” rather than an “employee”. Maudsley v. City of North Lauderdale, Fla.App. 4th 1974, 300 So.2d 304. Given the absence of a provision in the appellee-city’s charter controlling removal of municipal officers, appellants should have been discharged from employment pursuant to the provisions of the general law then in existence, i.e., section 165.18, F.S. See also Burklin v. Willis, Fla.App. 1st 1957, 97 So.2d 129.

The remaining points raised on appeal need not be discussed in light of our decision. Accordingly, the final judgment is reversed and the cause remanded for further proceedings consistent herewith.

REVERSED.

WALDEN, C. J., and MAGER, J., concur.

CROSS, J., dissents, with opinion.

CROSS, Judge

(dissenting).

I respectfully dissent.

It is my opinion that appellants were employees of appellee-city for the purpose of termination of their employment under the city charter. As such, no reversible error was demonstrated by their discharge. I would affirm the final judgment herein appealed.


author: McCORD, Judge.

text:
    Tom LINDSEY, Appellant, v. STATE of Florida, Appellee.
    No. Y-365.
    District Court of Appeal of Florida, First District.
    April 28, 1976.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Appellant was charged with breaking and entering with intent to commit a felony. He was convicted of the “lesser included offense” of “breaking and entering or entering without breaking with intent to commit a misdemeanor” (a violation of § 810.-05, Florida Statutes, 1973). He appeals the judgment and sentence.

Appellant recognizes that in Whilden v. State, Fla.App. (1st), 301 So.2d 35 (1974), this court, when confronted with such a verdict and judgment, remanded the case to the trial court “with instructions to enter judgment and sentence on the lesser of the included offenses referred to in the verdict.” Appellant requests that we reconsider such previous ruling in the light of O’Neal v. State, Fla.App. (2d), 308 So.2d 569 (1975). It has subsequently developed, however, that the District Court of Appeal, Second District, has overruled and receded from O’Neal in Roberts v. State, Fla.App. (2d), 320 So.2d 832 (1975). Upon consideration of the opinion in Roberts, we find that we agree with the general reasoning therein but go a step further. We now construe the crime of breaking and entering or entering without breaking as a single crime rather than two different crimes. In Roberts the appellant was charged with breaking and entering with intent to commit a misdemean- or, to wit: petit larceny and was found guilty of entering without breaking with intent to commit petit larceny. The Second District Court of Appeal upheld the conviction and stated as follows:

“The information charged three elements, to wit: unlawful breaking, unlawful entry and the intent to commit petit larceny. The jury found appellant guilty of two of the three elements set forth in the accusatory pleading by finding that he had made an unlawful entry with intent to commit petit larceny. These two elements constitute a crime just as surely as did the three elements charged. By all standards entering without breaking seems to meet the definition of a category (3) necessarily included offense to breaking and entering under Brown v. State, Fla.1968, 206 So.2d 377."

The Second District Court went on to say :

“The problem seems to stem from the fact that both of these “offenses” are proscribed in the disjunctive in the same section. Thus, Fla.Stat. § 810.05(1) (1973), reads as follows:
‘810.05 Breaking and entering with intent to commit a misdemeanor.—
(1) Whoever breaks and enters, or enters without breaking, any dwelling, storehouse, building, ship, vessel, aircraft, or railroad car with intent to commit a misdemeanor shall be guilty of a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084.’
Hence, it is not a matter of greater visa-vis lesser included offenses in the sense that the lesser is considered to be an independent offense which is included within the offense defined as greater. See Isaac v. State, Fla.App.2d, 1961, 134 So.2d 38, overruled in part by Skov [Skov v. State, Fla.App.2d 1974, 292 So. 2d 64], We are concerned here with the same offense which may be committed in two ways. But does this mean that one who is charged with the first alternative under the statute cannot be convicted of committing the crime in the manner described in the second alternative?”

The past difficulty we and other courts have had in placing the two facets of the above quoted criminal statute in the mold of greater and lesser included offenses is that the statute in reality does not define two separate offenses. It defines only one offense which may be committed in either of two ways — by breaking and entering or by entering without breaking. As pointed out by Judge Grimes in Roberts, the gravamen of the offense is unlawful entry with intent to commit a misdemeanor. It is physically impossible for an unlawful entry to be made other than by breaking or entering without breaking. It makes absolutely no difference as far as this crime is concerned whether the unlawful entry was effected by one or the other of the only two possible means. A person charged with this crime knows from its definition in the statute (and from the charge itself in this case) that he must be prepared to defend against proof of either of the two means of unlawful entry. Whether the jury finds that the accused unlawfully entered by “breaking” or by “entering without breaking” or by “breaking or entering without breaking” makes no difference as to the validity of the verdict, judgment and sentence. Either verdict states the crime set forth in the statute. Each of the foregoing three alternatives states one and the same crime as defined by the statute and carries the single penalty prescribed by the statute. We, therefore, recede from our previous requirement of Whilden, quoted above, that such a case must be remanded for the entry of a judgment and sentence on the “lesser of the included offenses” as we here hold that the statute defines only one offense — not two. Appellant, as aforesaid, was charged with breaking and entering with intent to commit grand larceny and was convicted of breaking and entering or entering without breaking with intent to commit a misdemeanor. We find that the crime for which he was convicted is a lesser included offense of the crime charged.

Affirmed.

RAWLS, Acting C. J., and SMITH, J., concur.


text:
    Alberta WILSON v. STATE of Mississippi.
    No. 49043.
    Supreme Court of Mississippi.
    May 4, 1976.
    Fraiser & Burgoon, Greenwood, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Ca-joleas, Special Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON and INZER, P. JJ., and BROOM, J.
   Appeal from Circuit Court, Leflore County; B. B. Wilkes, Judge.

AFFIRMED.

GILLESPIE, C. J., and SMITH, ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concurring.


text:
    Frank PIERCE v. STATE of Mississippi.
    No. 49036.
    Supreme Court of Mississippi.
    May 4, 1976.
    Barnett & Brooks, Carthage, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Special Asst. Atty. Gen., Jackson, for appellee.
    GILLESPIE, C. J., PATTERSON, P. J., and SMITH, ROBERTSON, and BROOM, JJ.
    LEE, J., took no part.
    Before INZER, P. J., and SUGG and WALKER, JJ.
   Appeal from Circuit Court, Leake County; Roy Noble Lee, Judge.

AFFIRMED.


text:
    Leslie R. MAPES v. STATE of Mississippi.
    No. 48992.
    Supreme Court of Mississippi.
    May 4, 1976.
    Bernard Gautier, Pascagoula, for appellant.
    A. F. Summer, Atty. Gen. by Ben H. Walley, Asst. Atty. Gen., Jackson, for ap-pellee.
    Before INZER, P. J., and SUGG and WALKER, JJ.
   Appeal from Circuit Court, Jackson County; Darwin Maples, Judge.

AFFIRMED.

GILLESPIE, C. J., PATTERSON, P. J., and SMITH, ROBERTSON, BROOM, and LEE, JJ., concur.


text:
    Kenneth PEOPLES v. STATE of Mississippi.
    No. 49047.
    Supreme Court of Mississippi.
    May 4, 1976.
    Wright & Phillips, Carthage, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Special Asst. Atty. Gen., Jackson, for appellee.
    Before.PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   Appeal from Circuit Court, Leake County; Roy Noble Lee, Judge.

AFFIRMED.


text:
    Mrs. Jewel R. MILLER v. J. W. UNDERWOOD, d/b/a Camelot Apartments.
    No. 48682.
    Supreme Court of Mississippi.
    May 4, 1976.
    Young, Young & Scanlon, Robert B. Sessums, Jackson, for appellant.
    Satterfield, Shell, Williams & Buford, Cary E. Bufkin, Jackson, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   Appeal from Circuit Court, Hinds County; Russel D. Moore, Judge.

AFFIRMED.


text:
    Charles A. McKENZIE v. STATE of Mississippi.
    No. 49055.
    Supreme Court of Mississippi.
    May 4, 1976.
    Roland B. Skinner, Biloxi, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   Appeal from Circuit Court, Harrison County; Leslie B. Grant, Judge.

AFFIRMED.


text:
    E. H. BLYTHE v. Mrs. Alga BYERS.
    No. 48658.
    Supreme Court of Mississippi.
    May 4, 1976.
    Joseph T. Wilkins, III, New Albany, for appellant.
    Lawrence M. Magdovitz, Clarksdale, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and SUGG, JJ.
   Appeal from Chancery Court, Union County; J. D. Doty, Chancellor.

AFFIRMED.


text:
    Robert ADAMS v. STATE of Mississippi.
    No. 48987.
    Supreme Court of Mississippi.
    May 4, 1976.
    John T. Haltom, Indianola, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., and SUGG and WALKER, JJ.
   Appeal from Circuit Court, Sunflower County; Arthur B. Clark, Judge.

AFFIRMED.


author: ROBERTSON, Justice, for the Court: PATTERSON, Presiding Justice

text:
    Russell DORRIS v. William W. CARR, a minor, by father and next friend, C. A. Carr.
    No. 48507.
    Supreme Court of Mississippi.
    April 27, 1976.
    Rehearing Denied May 18, 1976.

      Daniel, Coker, Horton, Bell & Dukes, Jackson, for appellant.
    Michael J. Malouf, Jackson, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and SUGG, JJ.
   ROBERTSON, Justice, for the Court:

The principal question involved in this appeal is the scope of review when there is an appeal from the action of a trial judge in granting a new trial unless the defendant enters an additur.

Suit was filed in the Circuit Court of the First Judicial District of Hinds County on behalf of William W. Carr, a minor, against Russell Dorris. The jury returned a verdict in favor of Carr for $4,500, and judgment was entered accordingly. Upon motion by Carr, the trial court granted a new trial unless Dorris agreed to an addi-tur of $3,000. Dorris appealed under the provisions of Mississippi Code Annotated section 11-7-213 (1972). This is the only exception to the rule that appeals are allowed from the circuit court only when the judgment is final. See Miss.Code Ann. § 11-51-3 (1972). Carr cross-appealed, contending that the suggested additur is inadequate.

The briefs focus on whether or not the jury’s verdict was supported by the evidence or whether bias, passion or prejudice on the part of the jury was shown. This is not the issue. The issue is whether it is manifest that the trial court abused its discretion in granting the new trial.

Mississippi Code Annotated section 11-1-55 (Supp.1975), entitled “Authority to impose condition of additur or remittitur”, provides:

“The supreme court or any other court of record in a case in which money damages were awarded may overrule a motion for new trial or affirm on direct or cross appeal, upon condition of an addi-tur or remittitur, if the court finds that the damages are excessive or inadequate for the reason that the jury or trier of the facts was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of credible evidence. If such additur or remittitur be not accepted then the court may direct a new trial on damages only. If the additur or remittitur is accepted and the other party perfects a direct appeal, then the party accepting the additur or remittitur shall have the right to cross appeal for the purpose of reversing the action of the court in regard to the additur or remitti-tur.”

The statute added nothing to the existing case law except that it provided for addi-turs. Prior to the enactment of the statute, the circuit court had authority under the case law to grant new trials on the ground of excessiveness or inadequacy of the verdict and to suggest remittiturs on the same ground.

In the early case of Dorr v. Watson, 28 Miss. 383 (1854), the standard was set for reviewing the action of a trial court in granting a new trial. This standard has been consistently applied in case after case throughout the years. In Dorr, the Court said:

“The granting a new trial rests in a great measure upon the sound discretion of the court below, to be exercised under all the circumstances of the case with reference to settled legal rules as well as the justice of the particular case. If a new trial be refused, a strong case must be shown to authorize the appellate court to say that it was error; and so, if it be granted, it must be manifest that it was improperly granted. Indeed, it would seem that the latter would be entitled to the greater indulgence, inasmuch as it is not a final decision of the case, and the party against whom it is granted, still has an opportunity to assert his rights on the new trial.” 28 Miss, at 395.

Among the numerous cases where this Court has upheld the trial court in granting a new trial on grounds of inadequacy or excessiveness of damages is Rayner v. Lindsey, 243 Miss. 824, 138 So.2d 902 (1962). In Rayner the Court reiterated the long-standing rule concerning the standard of review in the following language:

“ ‘The rule as universally announced in our decisions is that the action of the trial court upon a motion for a new trial is to be favorably considered upon appeal and supported unless manifest error appears or unless the action of the trial court in sustaining the motion shows a manifest abuse of his discretion, and the rule is particularly applicable where the new trial has been granted, since in such cases the rights of the parties are not finally settled as they are where a new trial is refused. [Here citing numerous cases].’ ” 243 Miss, at 832-33, 138 So.2d at 905-06.

Rayner, commenting on the superior position of the trial judge in determining whether a new trial should be given on the question of damages, said:

“The trial judge not only heard the testimony of the witnesses, including the medical evidence, but he saw the plaintiff in court, and in addition had an opportunity to hear the history of other similar cases read and discussed by eminent attorneys, to the end that when it became his duty to pass upon a motion for a new trial upon the question of ex-cessiveness of the verdict, he could focus not only the facts but the law on the question of damages. It was his duty in the first instance to determine whether or not a new trial should be granted movant. Sec. 1536, Miss.Code 1942, Rec.” 243 Miss, at 832, 138 So.2d at 905.

In Houston v. Page, 208 So.2d 901 (Miss.1968), the Court again restated the test for reviewing the action of a trial court in granting a new trial and again recognized that the trial judge is in a superi- or position to determine whether the jury has responded to reason with reference to damages. In that case the Court said:

“Although fixing the amount of damages in a case of this kind is primarily a matter for the jury, the statute clearly contemplates that the trial judge, from his station of vantage, shall see to it that such awards are kept reasonably within the bounds of the evidence. If the trial court should consider that a verdict is, upon the evidence, either grossly excessive or inadequate, he may, and indeed should, set it aside and award a new trial. Where a new trial is granted upon the ground that a verdict is excessive, the trial court may suggest a remittitur as an alternative to the new trial.” 208 So.2d at 905.

When this Court reviews the action of the jury after the trial court has refused to grant a new trial on the question of damages, the question here then becomes one of whether the verdict was either so excessive or inadequate as to shock the conscience and to indicate bias, passion and prejudice on the part of the jury, or, as sometimes stated, whether the jury failed to respond to reason. But this is not the test this Court applies in passing upon the action of the trial judge when he grants a new trial. In such a case, the focus is upon the trial judge’s action and not upon the jury’s action, and we can only reverse the trial judge in such event where this Court finds that it is manifest that the trial judge abused his discretion.

The application of the standards heretofore discussed requires an examination of the facts both on liability (since contributory negligence is an issue) and on the extent of Wayne Carr’s injuries.

Wayne was sixteen years old at the time of the accident. On Sunday, August 5, 1973, just after dark, he was driving his motorcycle south on Meadowlane Drive in Jackson. A friend of his was riding near him on a motorcycle. At the same time, Dorris was returning from a fishing trip, towing a trailer on which were a fourteen-foot aluminum boat and outboard motor. He had his headlights on. In order to enter his driveway as he traveled north on the street, Dorris had to make a 90 degree left turn. The collision took place just as Dorris reached his driveway, having turned across the traffic lane in which Carr and his companion were traveling. Carr struck Dorris’ car, landed temporarily upon the hood, broke the windshield and made a final landing in the ditch on the other side.

Carr testified that he had his headlight on and that he was driving about thirty miles an hour. Two witnesses, who were close to the point of impact, corroborated Carr’s statement that the light on his motorcycle was burning. Carr testified that he saw no left-turn signal given by Dorris, and Dorris testified that he did not see any lights on the motorcycles. A1 Burnett, Dorris’s next door neighbor, testified that he was at the scene in about 10 or IS seconds and that the motorcycle headlight was not on when he looked at it in the ditch. Later when Carr’s motorcycle was moved the headlight was turned on and the motorcycle driven away under its own power.

On the question of damages, the proof showed that Wayne was in the hospital about a week, that his medical expenses amounted to $1,632.35; that he lost four weeks from work at a salary of $90 per week and thirty weeks at $70 a week, or a total of $2,460 in lost wages. Medical expenses and all possible lost wages amounted to $4,092. Wayne underwent an operation for the repair of his left knee for torn ligaments and wore a cast for several weeks. Thereafter he was on crutches.

His doctor, who operated on his knee, estimated that he had a 20% permanent impairment to the lower left extremity. But Dr. Wilder also testified that Wayne had “a reasonably normal range of motion at the present time”, had no limp, and was able to do service station work. When he quit school about April 1, 1974, he got a fulltime job at a service station earning $115 a week and was able to perform the many services required of him.

We have carefully studied and reviewed the record, including the reasons assigned by the trial judge for making a $3,000 ad-ditur, and we are unable to say that the trial judge manifestly abused his discretion.

For the reasons stated, the judgment of the trial court is affirmed. If the defendant Dorris enters an additur of $3,000 within fifteen days after this judgment becomes final, the case will be affirmed, and judgment entered here for $7,500. Otherwise, the judgment will be affirmed as to liability, and the case remanded for a new trial on the issue of damages only. If the additur is not entered and the case is remanded for a new trial, all of the facts, both as to liability and damages, should be presented to the jury so that the jury may decide all questions of negligence and contributory negligence and apportion damages accordingly.

This case was considered by a conference of the Judges en banc.

AFFIRMED ON DIRECT AND CROSS-APPEALS.

GILLESPIE, C. J., INZER, P. J., and SMITH, WALKER, BROOM and LEE, JJ., concur.

PATTERSON, P. J., and SUGG, J., dissent.

PATTERSON, Presiding Justice

(dissenting) :

With deference to the majority, I dissent. I am of the opinion the issue is the determination of whether there is credible evidence to support the amount of the jury-verdict. The scope of review is necessarily limited to the resolution of that question. Mississippi Code Annotated section 11 — 1—55 (Supp.1975) authorizes the overruling of a motion for a new trial or af-firmance on direct or cross appeal, dependent upon the existence of a condition. It states in part:

. upon condition of an additur or remittitur, if the court finds that the damages are excessive or inadequate for the reason that the jury or trier of the facts was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of credible evidence. .

In the context of this case the trial judge of necessity had to review the evidence to ascertain whether there was such to support the jury verdict. If there was credible evidence to support it, then he erred in granting a new trial upon condition of an additur. If there was no credible evidence to support the amount of the jury verdict, then, in that event he was correct in entering the additur.

This Court, in reviewing the rulings of a trial court’s passing upon evidence, of necessity has to review the same evidence to reach its conclusion. It may be conceded that our review is limited to the record and this limitation does not give this Court the advantage enjoyed by a trial court of hearing and observing the demeanor of the witnesses. This does not mean, however, that the record is meaningless. It suggests only that great caution should be used by this Court in overruling a trial court’s actions in either upholding or disregarding evidence presented to a jury. It is also true that the trial judge should indulge caution in overturning, by way of a new trial, a jury verdict based upon competent, though conflicting, evidence. In The New Orleans, Jackson, and Great Northern RR Co. v. Hurst, 36 Miss. 660 (1859), we stated:

The law has not intrusted the court with a discretion to estimate damages, but has devolved the power on a jury, as a matter of sentiment and feeling, to be exercised by them according to their sound discretion, duly weighing all the circumstances of the case, and considering the state, degree, quality, trade, or profession, as well of the party injured, as of him who did the injury. Judges, therefore, should be very careful how they overthrow verdicts, given by twelve • men, on their oaths, on the ground of excessive damages. . . . (36 Miss, at 666, 667)

My review of the record convinces me there was sufficient, competent, credible evidence for the jury to have mitigated plaintiff’s damages due to his contributory negligence. Indeed, I think the resume of the evidence of the majority is indicative of this.

The defendant testified that he did not see the plaintiff’s headlight as he made his turn into the driveway. He also testified he would have seen the light had it been on. This was corroborated by a witness who was on the scene within seconds after the accident. This witness testified that the motorcycle headlight was not on. There is also testimony that when the motorcycle was removed from the scene of the accident, the headlight came on when the switch was activated.

One of the critical issues in the suit concerns the light since the defendant’s negligence or lack of it in making the left turn depended largely upon whether, from his point of new, there was a visible approaching vehicle in the lane of traffic that he would traverse. I am of the opinion the damages awarded were not grossly inadequate so as to require a new trial contingent upon an additur since the jury had every right, and indeed the duty, to mitigate the damages if it believed the testimony of contributory negligence.

The discourse of the majority opinion distinguishing between a trial court’s review of the evidence and this Court’s review of evidence, in my opinion, is a distinction without a difference. If there was evidence to support the jury verdict, and there was, and the trial judge rejected it, then he erred. Whether we call this manifest error or a manifest abuse of discretion, the fact remains that the jury found to the contrary upon credible evidence and its verdict should not be disturbed.

For these reasons I dissent and would reinstate the verdict of the jury since it was not unreasonable.

SUGG, J., joins in this dissent.

      . This section allows an appeal from an order granting a new trial when the sole ground is the excessiveness or inadequacy of damages assessed.

      . The last sentence of this section was added by a 1972 amendment.


author: LEE, Justice, for the Court:

text:
    Gregory WHITE v. STATE of Mississippi.
    No. 49007.
    Supreme Court of Mississippi.
    April 27, 1976.

      Dyer, Dyer & Dyer, Greenville, for appellant.
    A. F. Summer, Atty. Gen., by John C. Underwood, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.
   LEE, Justice, for the Court:

Gregory White was convicted in the Circuit Court of Washington County, Mississippi, on a charge of manslaughter and was sentenced to serve a term of eight (8) years in the Mississippi State Penitentiary. This is the second appearance of the case before this Court. On the first trial, White was found guilty of manslaughter, and the case was reversed because the State failed to identify the victim’s body as being the body upon which an autopsy was performed.

On the night of January 11, 1973, appellant and Frederick Slayton were riding in an automobile driven by Archie Hampton in the City of Leland. They saw Russell Reynolds, the deceased, walking along the street, and Slayton told Hampton to let him out of the car. He got out of the car, started toward Reynolds, and appellant followed him. Appellant told the Chief of Police in his own handwritten confession, “We got out of the car. Freddie and I to do to him what he did to the girl Bernadine in order to let him know how it felt being treated like that.” Reynolds walked hastily away from them, but they caught up with him.

Slayton hit Reynolds twice on the side of the head. He fell against an automobile and to the ground. Slayton kicked at Reynolds, and Reynolds caught Slayton’s feet. Appellant testified that at that point he kicked Reynolds on the leg. Archie Hampton testified that he saw appellant kick at Reynolds toward his midsection. Slayton and appellant theij went back to the car and left Reynolds lying in the street.

Officer Travis Jenkins of the Leland Police Department was dispatched to the scene. He found Reynolds lying face downward in the street in a pool of blood. There was considerable blood on the left side of his face and head. Reynolds was taken to a local hospital where he remained approximately twelve (12) hours and was transported thence to the Veterans Administration Hospital in Jackson where he expired on February 12, 1973, without having regained consciousness.

The medical evidence and autopsy indicated that the deceased received massive trauma to the left side of his head and lacerations and bruises above his left hip and over his lower legs and forearms. The cause of death was cerebral contusions, the immediate cause being bilateral pneumonia.

Appellant first contends that the trial court committed reversible error in granting the State’s Instruction Nos. S-3 and S-5, and in refusing to grant appellant’s requested Instructions Nos. D-4, D-5, and D-12.

The State’s Instruction No. S-5 to'ld the jury that, if they believed from the evidence beyond reasonable doubt appellant, together with another person, intentionally sought out and assaulted the deceased with their fists and by kicking him with their feet, and that the deceased died as a result thereof, the jury should find defendant guilty. The instruction covered the State’s evidence from the time that Slayton and appellant got out of the car, went to the place where Reynolds was, overtook him, struck and kicked him. The jury could have found that the two men, acting together, intended from the beginning to assault the victim.

In Gibbs v. State, 223 Miss. 1, 77 So.2d 705 (1955), this Court said:

“ Tn the absence of a conspiracy or common design the evidence must be sufficient, even in cases where the killing occurred in the course of a joint assault or affray, to show either that accused struck the fatal blow or aided and abetted therein. To justify the conviction of one who was not the actual slayer, where the proof does not show any prearrangement, conspiracy, or common design, the evidence must be sufficient to show that accused aided or abetted the actual slayer by overt act of assistance or oral expression of encouragement.’ 41 C.J.S. Homicide § 322.” 223 Miss, at 6, 77 So.2d at 707.

The State’s Instruction No. S-3 charged the jury that each person present, consenting to the commission of an offense, and doing any act which is an ingredient or immediately connected with it, or leading to its commission, is a principal to the same extent as if he committed the whole crime.

In McCoy v. State, 91 Miss. 257, 44 So. 814 (1907), we said:

“In Wharton on Homicide (3d Ed.), at pages 49 and 50, it is said: ‘Each person present, consenting to the commission of the offense and doing any act which is an ingredient in the crime, or immediately connected with it, or leading to its commission, is as much a principal as if he had with his own hand committed the whole offense. Aiding in the commission of a homicide makes the aider a principal. To render one criminally responsible as a principal in a homicide, it is not necessary that he should inflict the mortal wound. It is sufficient that he was present, doing or abetting the act; and this is so, though there was no common design to kill or injure’ — citing authority. See, also, Jordan v. State, 81 Ala. 20, 1 So. 577, and Wynn v. State, 63 Miss. 260, as shedding material light on this point.” 91 Miss, at 267, 44 So. at 817.

In Bass v. State, 231 So.2d 495 (Miss. 1970), the Court said:

“There were no error in the court granting the State an instruction that any person, acting with others in the commission of a crime and aiding and abetting therein, are responsible as principals for the offense. In fact, that theory was supported by the defendant’s own testimony.” 231 So.2d at 496.

Appellant here testified that he kicked the deceased on the leg during the assault by Slayton, and he also gave his handwritten statement to that effect. We find no error in these instructions for the State.

Instruction No. D^t, refused by the court, set forth that it must be proven beyond reasonable doubt that the defendant planned the unlawful act with the direct actor or shared in the criminal intent of the direct actor, and further, that if the jury did not believe the actions of defendant were either the sole cause of death or were the partial cause of death or that his individual act substantially contributed to the death of Reynolds, then he must be found not guilty. This is not a correct statement of the law. The jury could have found from the evidence that the two men left the car with the intent of assaulting the deceased, but not to kill him, or they could have found that the appellant went along without any intention of harming the deceased, but when he arrived at the scene he participated in the assault by kicking him. In either event, the jury would have been justified in finding appellant guilty as a principal.

Instruction No. D-5 was properly refused by the trial court. It instructed the jury that unless they found the action of appellant to be either the sole cause of the death of Reynolds, or that it substantially contributed to his death, they should find appellant not guilty. It is erroneous for the reasons stated above.

Instruction No. D-12 told the jury that, unless they further believed from the evidence beyond reasonable doubt the appellant was present at the time Slayton delivered a blow to the head of Reynolds, which blow resulted in the death of Reynolds, and that appellant knowingly aided or abetted Slayton in delivering the said blow, the jury should find him not guilty.

The State did not have to prove that appellant assisted Slayton in delivering the actual blow to the head which may have resulted in the death of Reynolds. To find him guilty, it was sufficient that the jury believe beyond reasonable doubt that appellant was present, aiding and abetting by any overt act of assistance or oral expression of encouragement. The instruction was properly refused.

There is no merit in appellant’s assigned Errors 2 and 3, that the court erred in allowing the State to introduce and prove a conspiracy when the defendant was tried for manslaughter, and that the verdict of the jury is contrary to the overwhelming weight of the evidence.

In Daniels v. State, 293 So.2d 19 (Miss. 1974), the defendant’s conviction of manslaughter was affirmed, and this Court said:

“As a general rule of law, all who join in a common design to kill another, whether in a sudden emergency, or pursuant to a conspiracy, are liable for the acts of an accomplice in furtherance thereof. It is sufficient if there were a community of purpose between the accused and the direct actor or person who actually caused the death, at the time the homicide was committed. Merrell v. State, 39 So.2d 306 (Miss.1949); Adams v. State, 175 Miss. 868, 167 So. 59 (1936); Sparks v. State, 113 Miss. 266, 74 So. 123 (1916); McCoy v. State, 91 Miss. 257, 44 So. 814 (1907); 40 C.J.S. Homicide § 9, at 848 (1944). Compare Riley v. State, 208 Miss. 336, 44 So.2d 455 (1950).” 293 So.2d at 20-21.

The appellant admitted in his statement and then testified that he followed Slayton to the place where the deceased was, and joined in the assault upon the deceased by kicking him. The verdict was supported by the evidence, and we are of the opinion that the case should be and it is affirmed.

AFFIRMED.

GILLESPIE, C. J., PATTERSON and INZER, P. JJ., and' SMITH, ROBERTSON, SUGG, WALKER and BROOM, JJ., concur.


author: SUGG, Justice, for the Court:

text:
    Tommy Edward MAPP v. STATE of Mississippi.
    No. 49004.
    Supreme Court of Mississippi.
    April 27, 1976.
    William S. Boyd, III, Laurel, for appellant.
    A. F. Summer, Atty. Gen. by Karen A. Gilfoy, Asst. Atty. Gen., and John C. Underwood, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., and SUGG and WALKER, JJ.
   SUGG, Justice, for the Court:

Defendant was convicted of burglary in the Circuit Court of the First Judicial District of Jones County and sentenced to serve six years in the state penitentiary. We reverse because the indictment returned against defendant was void.

Defendant was indicted in vacation on on February 21, 1975 by a grand jury empanelled at the July 1974 term after the November 1974 term intervened. A new grand jury was not empanelled at the November 1974 term. The state concedes this to be error and we agree.

Joyce v. State, 327 So.2d 255 (Miss. 1976) and Tubby v. State, 327 So.2d 272 (Miss. 1976) held that a grand jury empanelled at a term of court may remain empanelled or be reconvened at any time before the next term of criminal court. Ingram v. State, Miss., 330 So.2d 602 1976 defined a “criminal term” as:

[A]ny term of circuit court fixed by statute unless (1) the statute limits the term to civil business only, or unless (2) the statute specifically gives the circuit judge discretion in the matter of empaneling a grand jury, and none is em-panelled.

Under Joyce, Tubby and Ingram, a grand jury empanelled at one term may not serve beyond the commencement of the next term unless the next term is limited to civil business only or unless the statute specifically gives the circuit judge discretion to empanel a grand jury, and none is em-panelled.

This case does not fall within either of the exceptions set forth in Joyce and Ingram. Under Mississippi Code Annotated section 9-7-47 (1972) each of the three terms of circuit court in the First Judicial District of Jones County are terms at which both civil and criminal business may be transacted. The statute provides:

The circuit court terms of the eighteenth circuit court district shall be as follows:

Jones County: First District: On the fourth Monday of February, eighteen (18) days; on the fourth Monday of July, eighteen (18) days; and on the fourth Monday of November, eighteen (18) days.

The grand jury empanelled at the July 1974 term of circuit court for the First District of Jones County could not be recalled for service during or after the November 1974 term. Since the grand jury in this case was recalled after the November 1974 term any indictments returned by it after the date fixed by statute for the first day of the November term are void.

Mississippi Code Annotated section 13-5-39 (1972) provides that no grand jury shall be empanelled 'for more than two terms of circuit court unless otherwise directed by the circuit judge. This means that the circuit judge is not required to empanel more than two grand juries in any calendar year; however, a grand jury empanelled at one term may not be recalled after commencement of the next term unless the next term falls within the exceptions set forth in Joyce and Ingram.

Accordingly, the judgment of the lower court is reversed and the case is remanded for submission to a properly constituted grand jury. Defendant shall be held under a bond in the penal sum of One Thousand Five Hundred Dollars ($1,500.00) to await the action of the next grand jury.

REVERSED AND REMANDED.

GILLESPIE, C. J., PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, WALKER, BROOM and LEE, JJ., concur. -

      . It should be noted, however, that statutes fixing terms of court for some counties provide for empaneling grand juries at specified terms of court and provide that more than two grand juries shall be empanelled during a calendar year. For example, see Mississippi Code Annotated section 9-7-15 (1972).