author: ROBERTSON, Justice.

text:
    XEROX CORPORATION v. CITY OF JACKSON.
    No. 48819.
    Supreme Court of Mississippi.
    Feb. 17, 1976.
    Rehearing Denied March 30, 1976.

      Brunini, Grantham, Grower & Hewes, W. David Watkins, Jackson, for appellant.
    Bacon & Smith, Arthur F. Jernigan, Jr., John E. Stone, Jackson, for appellee.
    Before INZER, ROBERTSON and SUGG, JJ.
   ROBERTSON, Justice.

Xerox Corporation has appealed from a judgment of the Circuit Court of the First Judicial District of Hinds County, Mississippi, which judgment was based on a jury verdict fixing the cash value of the copying and duplicating machines of Xerox as of January 1, 1973, at $5,108,184.

The tax assessor of the City of Jackson had found the cash value of Xerox machinery, tools and equipment as of January 1, 1973, to be $5,996,342, and had fixed the assessment on the 1973 Personal Property Rolls at 37% of this figure. After hearing Xerox’s objections, the City Council approved the assessment based on the $5,996,342 valuation.

Xerox appealed to the circuit court where it was tried de novo before a jury. The jury in its verdict fixed the actual cash value at $5,108,184.

On appeal, Xerox contends that;

1. The City’s assessment does not meet the constitutional requirement that “taxation shall be uniform and equal throughout the state,” as provided in Section 112 of the Mississippi Constitution of 1890; and

2. The market data method (sales comparison) used by the City in determining actual cash value is not as accurate and reliable in Xerox’s peculiar case as the income capitalization method used by Xerox and, therefore, the City should be required to use the income capitalization method.

Xerox concludes its Brief with this statement:

“The Judgment of the lower court should be reversed and the case remanded with directions to value Xerox’s property on the basis of the State Tax Commission formula or by income capitalization.”

Mississippi Code Annotated section 27-35-29 (1972), requires:

“It shall be the duty of each person fixing the value of his property to estimate the same at its cash value at the time of valuation, and not what it might sell for at a forced sale, but what he would he willing and would expect to accept for it if he were disposed to sell it.” (Emphasis added).

There are three approved methods of determining the cash or market value of property: Market data (sales comparison) ; replacement cost; and income capitalization.

Francis Douglas, Regional Property Tax Manager, prepared and rendered Xerox’s 1973 report of actual cash values of its property to the City. Douglas testified:

“Each was fully explored, with the hopes of being able to use all three. I took them one at a time, beginning with the one that I hoped to be the most productive, which is normally the most reliable, and that is the utilization of sales in the marketplace.”

Douglas testified further that he couldn’t use the market data approach because during the calendar year 1972 Xerox sold only one copying machine in the City of Jackson, while leasing 647 copying machines. He next tried the replacement cost method and determined that this method also was not feasible or practical.

He finally tried the income capitalization method and decided that in Xerox’s unique situation this method was the more reliable and accurate in arriving at the actual cash value of its copying and duplicating machines.

As an example of how the income capitalization formula worked, Xerox used its most popular copier, the 3600-1. The complicated formula was applied in this way:

Gross Annual Rental $9,720
Less Expenses:
Maintenance (7.6% of Gross Annual Rental) $738
Management (1.5% of Gross Annual Rental) 146
Insurance (1% of Gross Annual Rental) 97
Total Expenses $ 981
Rental After Expenses $8,739
The rate of return was arrived at in this way:
RENT AFTER EXPENSES ’ 100%
PORTION OF RENT ATTRIBUTABLE TO LEASING ACTIVITY 17.5%
PORTION OF RENT ATTRIBUTABLE TO COPIER AND SUBJECT TO CAPITALIZATION 82.5%
INTEREST OR RATE OF RETURN' 10%
PROPERTY TAXES _3%
TOTAL 13%
13% = X
82.5% 100
X = 15.75% OVERALL RATE OF RETURN

In arriving at its valuation, the City used a 5% annual rate of depreciation, thereby assigning a 20-year useful life to Xerox’s copiers. Xerox contends that the average life of its copiers is five years and that the depreciation rate should be 20%. Xerox submitted this tabulation, again using the 3600-1 copier as an example:

Annual Total Remaining Recapture or Capitalization Life (years) Return Depreciation_Rate Value
.1575 .20 .3575 $24,440 C71
.1575 .25 .4075 21,440
.1575 .33 .4875 17,800 CO
.1575 .50 .6575 13,290 tO
.1575 1.0o 1.1575 7,550 h-1
(Any equipment surviving the reasonable life expectancy of 5 years retains the value of $7,550.)

Witnesses for Xerox testified that it would sell a new or used Xerox 3600-1 copier only at the catalog list price of $34,150. Xerox was questioned as to whether it would accept $24,440, as shown on its capitalization format as the actual cash value of a new 3600-1 copier and its answer was “no”. The City contends here, as it did in lower court, that the actual cash value of a typical 3600-1 copier, according to section 27-35-29, supra, was $34,150, the amount Xerox testified it “would be willing and would expect to accept for it (3600-1) if he (Xerox) were disposed to sell it”. The City says that $34,150 was the figure it used in valuing the Xerox 3600-1.

All of Xerox’s witnesses admitted that the income capitalization method of arriving at the actual cash or market value was the least desirable method if either one of the other two methods could be applied. Xerox’s contention is that, in its unique and unusual situation, neither the market data method nor the replacement cost method can be applied, and that the City must use either the income capitalization method or the Mississippi State Tax Commission formula.

The income capitalization method is very complicated and subject to many variables that cannot’ be checked out by the taxing authorities. For instance, on its 1973' re-

turn the expense of management was figured at 1.5% of the gross annual rental, whereas on its 1974 return Xerox figured the management expense at 24% of the gross annual rental.

Thomas S. Morse, manager of property tax operations for Xerox, testified that the City could check the accuracy of the variable management percentages by auditing the records of Xerox at the home office in Rochester, New York, or the City could subpoena them and Xerox would bring the records to Jackson. Morse stated that the federal government audited Xerox’s records but had only audited through 1969 at the present time.

Rex Wright, the City’s Assessor and Collector, testified that he had a staff of forty employees handling approximately 82,000 assessments (real property, personal property, privilege licenses, and special assessments). He simply does not have the trained personnel to audit Xerox and other manufacturing corporations.

Section 112 of the Mississippi Constitution of 1890 as amended provides in part:

“Taxation shall be uniform and equal throughtout the state. Property shall be taxed in proportion to its value. Property shall be assessed for taxes under general laws, and by uniform rules, and in proportion to its value.” Miss.Code Ann. (1972), Yol. 1.

We have construed this language to mean that assessments must be equal and uniform in the taxing district. McArdle’s Estate v. City of Jackson, 215 Miss. 571, 61 So.2d 400, 63 So.2d 101 (1952); Lavecchia v. Mayor and Aldermen of City of Vicksburg, 197 Miss. 860, 20 So.2d 831 (1945); Redmond v. City of Jackson, 143 Miss. 114, 108 So. 444 (1926). In this the taxing district is the City of Jackson.

All witnesses for the City testified that the market data method of determining the actual cash value was uniformly and equally applied to machines and equipment of I. B.M., the 3-M Company, and National Cash Register, and all other manufacturers leasing machines and equipment.

The jury applied a more realistic annual depreciation rate than the City in arriving at its verdict, and we think rightly so under the testimony.

The verdict of the jury is amply supported by the evidence, and, therefore, the judgment of the lower court, based on the jury verdict, is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: SMITH, Justice:

license: Public Domain

text:
    Edward J. BURRILL v. STATE of Mississippi.
    No. 48882.
    Supreme Court of Mississippi.
    March 2, 1976.
    Rehearing Denied March 30, 1976.

      Daniel, Coker, Horton, Bell ,& Dukes, Alhen N. Hopkins, Gulfport, for appellant.
    A. F. Summer, Atty. Gen. by John C. Underwood, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., and SMITH and SUGG, JJ.
   SMITH, Justice:

Edward J. Burrill was indicted for the murder of one Vicky Sue Aigner. He was tried on that charge in the Circuit Court of Harrison County, convicted and sentenced to life imprisonment.

Burrill undertook to give a ride in his automobile to Vicky Sue Aigner, a young woman, from New Orleans, Louisiana, to Miami, Florida, and it is not disputed that the trip was duly begun and progressed at least as far as Gulfport, Mississippi.

On December 20, 1973, a man named Thompson, driving from Bay St. Louis, Mississippi to Hattiesburg, Mississippi on U.S. Highway 49, stopped to relieve himself. Leaving the road for that purpose, Thompson discovered the nude body of a woman, later identified as Vicky Sue Aig-ner, lying just past a fence about sixty feet from the highway. Her throat had been deeply slashed, photographs in the record showing that her head had been almost severed from her body. An earring remained in one of the victim’s ears.

The Harrison County Sheriff’s Department was notified and conducted an examination of the area. A -Blue Cross Blue Shield card and a fragment of a small yellow card were found, each of which bore Burrill’s name.

On December 26, 1973, Burrill employed an attorney to represent him in connection with a traffic charge in Foxboro, Massachusetts. When Burrill’s attorney contacted the sheriff’s office there about the charge, he was informed that the authorities wished to talk to Burrill about an incident which had occurred in Mississippi. At about 3:00 o’clock in the afternoon of that same day, Massachusetts State Trooper Kilpeck arrived at the attorney’s office and, in the presence of his attorney, informed Burrill of his constitutional rights as required by Miranda v. Arizona, 384 U. S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The attorney explained to Burrill as each of these “rights” was read to him what it meant. On his way back with State Trooper Kilpeck to the Massachusetts State Police Barracks at Foxboro, Massachusetts, Burrill told Kilpeck that he had left his automobile parked at an airport in Orlando, Florida, describing it as a maroon and white Ford with a Massachusetts license plate.

After arriving at the barracks Burrill told Kilpeck that on December 15, 1973, a young woman at a New Orleans bar had asked him to give her a ride to Miami, Florida, and that he had agreed to do so. According to Burrill, this woman was about 24 years of age, with brown hair, and was wearing blue jeans and a jacket. He told Kilpeck that near Gulfport, Mississippi, the woman started crying and asking to be let out of the car. Burrill said he stopped and dropped her off at the Gulf-port exit on Highway 10 and continued for about another 100 miles along that highway before discovering that his wallet was missing. He said he had last seen it as it lay on the seat of his car, between him and the woman. Trooper Kilpeck relayed the information as to Burrill’s car to the sheriff of Harrison County, Mississippi.

At the request of Mississippi authorities, the Florida Department of Law Enforcement then located Burrill’s car at the McCoy Jetport in Orlando, Florida and subjected it to a thorough examination.

Blood and traces of blood were found in numerous places inside the car. Blood was identified on the right door support, front seat, both sides of the rear of the front seat, on the left rear armrest and underneath the right rear armrest and gear shift knob. Stains on the right rear door panel, right rear seat and right rear armrest were in sufficient quantity to be classified and were identified as human blood, Type O, RH Positive. It was established that Bur-rill and the victim both had blood which fell within that classification.

Several articles were found in the car on which human blood Type O, RH Positive, was identified, including a sideview mirror, a black robe, a blue shirt, a green shirt and a cardboard box. Human blood was also found on a part of an earring and a swimming fin which were in the car. The part of the earring found in the car consisted of the gold loop by means of which the earring is affixed to a pierced ear and was similar to that part of the single earring found in the ear of the victim when her body was discovered. Fingerprints of Vicky Sue Aigner, and a substance appearing to be blood, were identified on the side-view mirror. Burrill’s fingerprints were identified on a silver goblet found in the car.

On December 28, 1973, Deputy Sheriff Smith of the Harrison County Sheriff’s Department, interviewed Burrill in Fox-boro, Massachusetts in the presence of Burrill’s attorney, Trooper Kilpeck and various other Massachusetts officials. This was done with the consent of Burrill’s attorney and prior thereto Burrill’s Miranda rights were explained to him for the second time. Burrill consented to the interview and signed a “Warning and Consent to Speak Form,” which was witnessed by his attorney. In the course of the interview, Burrill identified a picture of Vicky Sue Aigner, taken before her death, as his passenger on the trip from New Orleans and his version was, in substance, the same as previously given to Massachusetts State Trooper Kilpeck. The interview was terminated by Burrill’s attorney when Harrison County Deputy Sheriff Smith pointed out to Burrill that it would have been impossible for him to have driven on along Highway 10 for about another 100 miles, as he said he had done, after putting Vicky Sue Aigner out of his car at Gulfport.

The sufficiency of the evidence to support the conviction is challenged. It is pointed out that much of the evidence against Burrill was circumstantial and, that being so, it was necessary that it exclude every reasonable hypothesis save that of Burrill’s guilt. Burrill did not testify upon the trial of the case on its merits, and his version of the case, therefore, appears only from his statements testified to by the officers and from his testimony on the motion to suppress. Notwithstanding the fact that the evidence may be circumstantial, the jury, as the trier of fact, remains the judge of its weight. The credibility of the witnesses also is a matter which lies peculiarly within the province of the jury. Payne v. The State, 57 Miss. 348 (1879); Pearson v. State, 248 Miss. 353, 158 So.2d 710 (1963); Smith v. State, 278 So.2d 408 (Miss.1973).

It does not appear that anyone saw .the actual commission of the homicide. Therefore, if the killer is to be brought to justice in a case of this kind, the ultimate fact of his guilt must be derived from circumstances proven. In this case the evidence of Burrill’s guilt, although circumstantial, is quite strong. A careful scrutiny of the record makes it apparent that the facts proved were sufficient to support the inference of guilt drawn from them by the jury as triers of fact and amply justified the conclusion on the part of the jury that, in logic and reason, the evidence did exclude every reasonable hypothesis save that of Burrill’s guilt.

We are forced to conclude that the evidence, outlined briefly above, was ample to support Burrill’s conviction. Under the circumstances in evidence, the truth or falsity of Burrill’s exculpatory version of the facts, as contained in his statements to the officers, was also for the jury’s determination. On the motion to suppress, Burrill said, in effect, that his statements to Officer Kilpeck had not resulted from any threat or promise but that Kilpeck had, in fact, been nice to him. The issue raised on this motion, therefore, involved largely the contention that there had been a failure to give Burrill the Miranda warnings rather than that BurrilPs statement had been wrongfully induced by abuse, threats or promises that rendered it involuntary in fact. However, the evidence that Burrill had twice been given the warnings was strong and the trial judge was justified in accepting it.

This conflicting evidence (as to the voluntariness of a confession) presented a question of fact to be determined by the trial judge who was in the best position to observe the witnesses as they testified. We have consistently held that where evidence is conflicting on the question of whether a confession was voluntarily made, that the issue is to be determined by the trial court; and upon review, this Court will not disturb the trial court’s finding unless it appears to be contrary to the evidence. Ivey v. State, 246 Miss. 117, 149 So.2d 520 (1963). [Clemons v. State, 316 So.2d 252, 253 (Miss.1975)].

Complaint that testimony as to certain statements against interest made by Burrill was hearsay and inadmissible is not well founded. Bolden v. Gatewood, 250 Miss. 93, 164 So.2d 721 at 731-732 (1964). (Citing 31 C.J.S. Evidence § 272a, p. 1023 and 20 Am.Jur., p. 1047, Evidence, § 1196).

The absence of certain out-of-state witnesses is urged as requiring reversal. Facts expected to be proved by the absent witnesses were not set out nor were the names and addresses of such witnesses set out in an affidavit. Nor was there an affidavit containing a statement that the witnesses were not absent by the consent or procurement of the accused. In King v. State, 251 Miss. 161, 168 So.2d 637 (1964), the proper procedure is outlined as follows :

“In view of the frequency of these applications we deem it advisable to repeat what has been before substantially said as to the correct course to be pursued by a defendant who applies for a continuance. To begin with he should promptly issue summonses for all witnesses who may be material for his defense; for any witness who has been served with process and who has failed to appear as commanded he should ask for an attachment which will never be refused by the court; in capital cases he should apply for a continuance before the venire is drawn, setting out in his affidavit the names and residences of the absent witnesses, the facts expected to be proved by them, and should also show to the court what steps have been taken to secure their attendance; he should negative the idea that they are absent with his consent or procurement, and if any reasons are known to him why they are not present, these should be stated.
“If the court declines to grant the continuance he should sue out the proper process for them, and when the case is called for trial should renew his application, make such changes in his affidavit as the conditions then existing require. If the continuance is still refused, he should with unremitting diligence seek to secure their attendance pending the trial by the continued use of the process of the court; if tried and convicted he should still persist in his efforts to enforce their attendance before the expiration of the term, and on his motion for a new trial present them to the court for examination; if, with all of his efforts, he is unable to have the witnesses personally present, he should, if practicable, secure their ex parte affidavits, which should be presented for the consideration of the court, which, on the motion for a new trial, will review the whole case and correct any error prejudicial to the defendant which may appear in any part of the proceeding.” (251 Miss, at 171, 172, 168 So.2d at 641).

The question raised as to the out-of-state witnesses has been dealt with by this Court in Diddlemeyer v. State, 234 So.2d 292 (Miss.1970).

See also Chandler v. State, 272 So.2d 641 (Miss.1973), wherein this Court said:

The first suggestion of error, that the trial court erroneously failed to require the attendance of an out-of-state witness as provided by Section 1895, Mississippi Code 1942 Annotated (1956), is not well taken for at least four reasons.
[1] First, this Court has held that there is no method by which the out-of-state witness can be paid and that the trial court was without authority to force a witness for the defense to leave a foreign state to testify in this state. See Diddlemeyer v. State, 234 So.2d 292 (Miss.1970). The rule in the Diddle-meyer case seems to be the general rule accepted by a large part of other state jurisdictions. See Anno. 44 A.L.R.2d 732 at 738 § 5 (1955).
[2] Second, assuming for the sake of argument that this Court would hold that section 1895, Mississippi Code 1942 Annotated (1956), applied to defense witnesses, under the facts here presented we could not hold the trial court in error because even where the court has authority to compel the attendance of witnesses, the witnesses’ testimony must be material to the issue involved and the party requesting their attendance must not only have process issued, but must make every effort during the trial to have these witnesses present. He must present an affidavit from them giving their testimony, on a motion for a new trial. The rule with reference to continuance because of an absent witness is analogous and is applicable here. See King v. State, 251 Miss. 161, 168 So.2d 637 (1964). (272 So.2d at 643).

Nor was any evidence offered upon the presentation of the motion for acquittal, or alternatively, for a new trial in which the same or similar questions were raised.

It is complained that the trial court was in error in overruling a motion that Burrill be given a mental examination. This motion was neither sworn to nor accompanied by an affidavit stating facts supporting the proposition. Under Mississippi procedure, a motion is at issue without the necessity of an answer or traverse of any kind, and the burden rests upon movant of supporting his motion with proof. None was offered in support of the motion and nothing appears from the record indicating a probability that Burrill was mentally incapable of assisting counsel in his defense nor that he was suffering from some mental disability. The proposition was dealt with by this Court in Jaquith v. Beckwith, 248 Miss. 491, 157 So.2d 403 (1963):

Both before and after the 1960 statute, the rule has been that, where there is a reasonable probability that defendant is incapable of making a rational defense, the trial should not proceed until his mental condition has been investigated and it appears he is capable of standing trial. McGinnis held that the statute made no change in the law in reference to trying a person on present insanity. Its purpose was to authorize the circuit judge to appoint a psychiatrist and to pay for the expense of the examination from county funds. Cf. Miss.Code 1942, Rec., §§ 6909-11, 2499-2503, 2573-2575, 6777. Code section 2575.5 requires that, before the psychiatric examination is ordered, the court should find that the defendant’s ability to make a defense is “in question”, meaning that there is such a reasonable probability that he is incapable of making a rational defense, as to warrant the psychiatric test. The essential basis of an order under section 2575.5 is a finding of such reasonable probability founded upon evidence supporting such a finding.
If such evidence exists, then the psychiatric examination under the statute may be ordered, as an aid to the court and the jury in determining the issue of present insanity. Assuming a properly authorized psychiatric examination has been made under the statute, the court and the jury may then consider the doctors’ findings in determining, as a question prior to trial on the merits, the issue of present insanity. Robinson v. State, 223 Miss. 70, 81, 77 So.2d 265, 83 So.2d 99 (1955). By its own terms section 2575.5 authorizes an order for psychiatric examination of an accused only where there is evidence indicating a reasonable probability that the defendant is incapable of making a rational defense.
The trial judge has a reasonable discretion when acting under the statute, but the statute defines the scope and limitations of orders under it. The discretion is a judicial one, including a requirement that there must be some evidence warranting a conclusion of reasonable probability, before an accused can be committed to a hospital for a lengthy psychiatric examination. Ordinarily orders under section 2575.5 are not controverted, since usually defendant or his counsel request or agree to them. Nevertheless, the statute has its limitations. It requires some evidential basis. (248 Miss, at 500-501, 157 So.2d at 407-408).

Other matters assigned as error have been examined and considered and are found to be without merit.

The conviction and sentence must, therefore, be affirmed.

AFFIRMED.

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


text:
    Georgette LEVANDOSKI, Administratrix of Estate of Rose Marie Levandoski, Deceased v. JACKSON COUNTY SCHOOL DISTRICT et al.
    No. 48546.
    Supreme Court of Mississippi.
    March 16, 1976.
    Levi, Wilson & Denham, P. A., Ocean Springs, for appellant.

      Eaton, Cottrell, Galloway & Lang, Gulf-port, Megehee, Brown & Williams, Pasca-goula, for appellees.
    Before GILLESPIE, INZER and ROBERTSON, JJ.
   ROBERTSON, Justice.

Georgette Levandoski, Administratrix of the Estate of her minor daughter, Rose Marie Levandoski, Deceased, brought suit against the Jackson County School District; the Board of Education of the Jackson County School District; M. H. Mal-lette, Jackson County Superintendent of Education; St. Martin Attendance Center; the Trustees of St. Martin Attendance Center; Richard Vogle; Charles Duffie; Burl E. Cooley; Mrs. Kenneth R. McGill; and Mrs. Rebecca Dowdle, in the Circuit Court of Jackson County to recover damages for the wrongful death of Rose Marie.

On motion to quash process and dismiss the action because of immunity from suit (when acting in their official capacities) by reason of governmental sovereignty, this action was dismissed as to Jackson County School District, Jackson County School District Board of Education, M. H. Mallette, Superintendent of Education of Jackson County, St. Martin Attendance Center, and Trustees of St. Martin Attendance Center. Plaintiff does not appeal from the order dismissing these defendants.

M. H. Mallette, individually, Richard Vogle, head principal, Charles Duffie, acting principal of St. Martin Junior High School, Burl E. Cooley, Principal, who was absent and at another attendance center on February 1, 1973, Mrs. Kenneth R. McGill and Mrs. Rebecca Dowdle, teachers, filed separate demurrers to the amended declaration of administratrix, each demurrer stating:

“1. The said Amended Declaration fails to state a cause of action as to this defendant.
“2. The Amended Declaration fails to charge any negligence on the part of this defendant which could have caused or proximately contributed to the death of Rose Marie Levandoski.”

The demurrer of each defendant was sustained by the circuit court “for the reason that the Amended Declaration fails to state a cause of action against the said defendants”, and the amended declaration dismissed. Plaintiff appeals.

In her amended declaration, the adminis-tratrix alleged:

“On February 1, 1973, the deceased [13-year-old Rose Marie] had a math class from 12:00 to 12:50. Thereafter, she remained in the same classroom for her next class, an English Class which was to be taught by the Defendant, Mrs. Kenneth R. McGill. During the ten minute break from 12:50 to 1:00 P.M. between the Math and English classes, Miss Levandoski left her books in and on her desk and her coat and her purse on the top of her desk and clearly within the visibility of any person in the classroom ; she left the classroom at this time and was not seen alive again.”
“Thereafter, the Defendant, Mrs. Kenneth R. McGill and Defendant, Rebecca Dowdle, in this respective order, conducted classes as described in the previous paragraph in the aforesaid classroom. At no time was Rose Marie Levandoski properly reported absent even though she had not returned to the classroom and her absence was repeatedly brought to the attention of these two Defendants. Miss Levandoski’s absence, further, was not communicated to her parents by any of the school authorities and no inquiries as to her whereabouts nor search for her person was instituted by said authorities. Plaintiff would show that it was within the capability of these Defendants and other Defendants listed in this suit to have determined the absence of Rose Marie Levandoski within ten minutes of the beginning of class at 12:50 on February 1, 1973, and that this would have been the logical course of action and the reasonable prudent course of action to take under the circumstances. Plaintiff would further show that at the time of the disappearance of Miss Levandoski it was a well known fact within the community and within the school system as a whole that the area surrounding the school was at times frequented by characters whose behavior adversely affected the well-being of the students within the school system. Further, there was widespread known abuse of the existing absentee reporting system, and it was well known to the Defendants named herein that the well-being of unauthorized absentees and their safety was jeopardized by the existing system together with the state of conditions existing around the said school at the time of the disappearance of Miss Levandoski. Plaintiff would further show that it is probable that if the disappearance of Miss Levandoski had been promptly reported and the proper precautions had been taken to minimize the risk involved to her safety and well-being, that she would not have come to any harm, but as stated before her absence was never properly noted by the teachers and was never reported either to the police, her parents, or the appropriate school authorities who might have instituted a widespread search for Miss Levandoski.”
“Thereafter, on or about February 21, 1973, Miss Levandoski’s body was found floating in the Tchouticabouffa River, and it was determined she .had died from a stab wound in the back.”

Plaintiff charged in her declaration that Vogle, Duffie and Cooley were guilty of gross, wanton and willful negligence in that they designed and administered a grossly defective system of reporting absences, and in the hiring of teachers incompetent, negligent, and careless in the reporting of absences. Plaintiff charged that these negligent acts on the part of Vo-gle, Duffie and Cooley “were a direct and proximate cause or a substantial, contributing cause of the decedent’s death.”

Plaintiff charged Mrs. Dowdle and Mrs. McGill with gross, wanton and willful negligence, in failing to report the unauthorized absence of Rose Marie, failing to look for her, failing to keep a watchful eye on the students in their charge, and failing to allow others to look for Rose Marie.

The circuit court was correct in sustaining the demurrers of these defendants to the amended declaration because it did not state a cause of action against these defendants.

Even if defendants Vogle, Duffie and Cooley were negligent in designing and administering the reporting system for unauthorized absences, and even if defendants McGill and Dowdle were negligent in reporting the unauthorized absence of Rose Marie, no causal connection was alleged or charged between the so-called negligent acts of these defendants and the wrongful death of Rose Marie.

The plaintiff, herself, did not know and consequently could not charge where, when, how or why Rose Marie was killed, nor who committed this terrible crime.

78 C.J.S. Schools and School Districts § 238, page 1197, contains this statement:

“The mere fact that an accident happened in which a pupil was injured does not render the teacher liable, and a teacher or principal is not liable for injuries to a pupil where he was not negligent or where his negligence was not the proximate cause of the injury.”

We find these statements in the Annotation on this point in 38 A.L.R.3d 830 (1971):

“[Ajbsent special, dangerous circumstances, a school district does not have the duty of providing constant supervision of all movements of pupils at all times. [Citations omitted].” 38 A.L.R. 3d at page 842.
“There must be a proximate causal connection between the inadequacy or lack of supervision and the accident. [Citing: Morris v. Ortiz (1968) 103 Ariz. 119, 437 P2d 652, 35 ALR3d 747, infra § 6[b]; Tymkowicz v. San Jose Unified School Dist. (1957) 151 Cal App 2d 517, 312 P2d 388, infra § 5[a]; Beck v. San Francisco Unified School Dist. (1964) 225 Cal App 2d 503, 37 Cal Rptr 471, infra § 8[a]; Ferguson v. Payne (1953) 306 NY 590, 115 NE2d 687, affg. 279 App Div 968, 111 NYS 2d 531, infra § 9[b]; Coates v. Tacoma School Dist. (1960) 55 Wash 2d 392, 347 P2d 1093, infra § 13[b] . . . .].” 38 A.L.R.3d at page 843.

The annotation also has this to say:

“Case law generally stresses the point that the school is not an insurer of the safety of pupils, but has the duty as variously described, of exercising ordinary care, of reasonable prudence, or of acting as a reasonable person would act under similar circumstances. A number of New York cases have expressed the duty as being that which a parent of ordinary prudence would observe in comparable circumstances. [Citation omitted].

“A number of cases have taken the position that supervisory personnel were required to act to prevent an injury only where the specific-type injury was reasonably foreseeable.” 38 A.L.R.3d at page 834.

“There is no liability predicated on lack or insufficiency of supervision where the event in connection with which the injury occurred was not reasonably foreseeable. [Citations omitted].” 38 A.L.R.3d at page 845.

For these reasons, the judgment of the circuit court, sustaining demurrers to the amended declaration, is affirmed.

AFFIRMED.

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


author: GILLESPIE, Chief Justice:

text:
    FORD LIFE INSURANCE COMPANY v. Joe H. SHANNON.
    No. 48551.
    Supreme Court of Mississippi.
    March 16, 1976.

      Thomas, Price, Alston, Jones & Davis, Thomas W. Tardy, III, Jackson, for appellant.
    Hathorn & Hathorn, Louisville, for ap-pellee.
    Before GILLESPIE, C. J., and ROBERTSON and WALKER, JJ.
   GILLESPIE, Chief Justice:

Joe H. Shannon recovered a judgment in the Chancery Court of Winston County against Ford Life Insurance Company (Insurer) on an insurance policy. Insurer appealed.

Shannon purchased a Ford automobile, and at the same time applied for and received a certificate of group credit life and disability insurance from Insurer. The suit involved the total disability provisions of the policy. The disability benefit provisions of the certificate provide:

If you become continuously and totally disabled during the term stated herein so that you are unable to perform all duties of your occupation or employment as a result of injury sustained or sickness contracted during the term of this certificate, which disability requires you to be treated by a licensed physician, other than yourself, Ford Life will pay, upon receipt of notice in writing of such disability, the monthly benefit stated herein for the period of total disability. . . .

The policy excluded “injury sustained or sickness contracted for which medical diagnosis or treatment was required within 6 months prior to the effective date of this certificate and which causes a loss within 6 months after such effective date.”

The trial court held that because the Insurer did not cancel the contract and make refund of premiums when Shannon made claim for total disability benefits, Insurer waived its defense based on the two foregoing provisions of the policy.

Shannon’s physician testified that Insured’s disability was due to a condition described as “anxiety depression” which had degenerated because of age, stress and strain. Although the record indicates he had arthritis and ulcers, these ailments were not totally disabling. Notations concerning arthritis and ulcers were recorded in earlier medical reports. As early as November 11, 1967, Shannon was rated 60% disabled as a result of anxiety reaction with depression features, duodenal ulcers, and osteoarthritis. On October 29, 1970, Shannon was diagnosed as having “anxiety reaction with depressive features.” His prognosis, on-the same date, was poor.

On August 5, 1971, at the Veterans Administration Hospital in St. Louis, Shannon’s diagnosis was: “Psychoneurosis, anxiety reaction, with depression.” The hospital records show that in November, 1967, he was taking valium for nervousness and that this and other medication were taken over an extended period of time prior to December 15, 1972, the date of the policy. On September 12, 1972, Shannon complained to his physician of being “down in the dumps.” He went back to see his physician on November 7, 1972, at which time he was somewhat disorganized and upset over his father’s death. He returned to his physician on November 14, 1972, and his condition was unchanged. He was given a prescription.

The case raises the following questions:

1. Did the Insurer waive its defenses by failing to cancel the policy and refund the premium when it denied Shannon’s claim ?

The total premium was $249.13, which included coverage for life insurance and total disability benefits. There is no reason why the Insurer should cancel the policy merely because a claim was made, that either was not covered by the insuring clauses of the policy, or, was subject to an exclusion. All or nearly all total benefit policies insure only against disability or accident contracted or occurring after a certain date. The Court can take notice of the fact that many policy holders have illnesses that began or were contracted before the effective date of the coverage. There is no reason for the Insurer to cancel the policy and refund premiums because a particular claim is not covered when other insurance coverage remains unaffected. We hold there was no waiver in this case, as held in White v. Standard Life Insurance Co., 198 Miss. 325, 22 So.2d 353 (1945). There is nothing inconsistent in continuing to accept premiums while denying liability for a loss not covered by the policy.

2. Does the proof show that the disability was contracted during the term of the policy ?

To recover total disability benefits, Shannon must show that he became totally disabled “as a result of injuries sustained or sickness contracted during the term of this certificate.” The proof shows conclusively that the illness resulting in Shannon’s disability was contracted before December 15, 1972, the date of the policy. Shannon made the claim for total disability benefits on a form signed by him on August 1, 1973. He stated therein that the period of total disability was from April 5, 1973, and that the disease or injury for which he had been treated was arthritis, ulcers and nerves. As already stated, the record consists of two volumes, the greater part of which is hospital records from Veterans Hospitals, which show that his nervous condition began as early as 1945, that he had been under treatment since 1965, and that he had been diagnosed at various times as having “psychoneurosis, anxiety reaction with depressive symptoms, chronic.” At other times, he had been diagnosed as having “depressive neurosis” and “schizophrenia, chronic undifferentiated type.” Also, as stated above, he had been treated for arthritis and ulcers.

The diagnoses and treatment continued to within a month of the time the policy was issued. Since the record conclusively shows that the illness, that resulted in Shannon’s disability, existed prior to the beginning of the policy term, there was no proof on which to base a judgment for disability benefits. As said in Mutual of Omaha Ins. Co. v. Walley, 251 Miss. 780, 783, 171 So.2d 358, 359 (1965), “Some insurance policies covering sickness and hospitalization exclude or limit liability in case of a disease originating before a certain time stated in the policy. Such clauses are valid and enforceable.”

For the reasons stated, the decree of the trial court is reversed and judgment entered here dismissing the suit.

REVERSED AND DISMISSED.

PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER and BROOM, JJ., concur.

      . Clinical reports from Veterans Administration Hospitals fill nearly two volumes of the record.


author: PATTERSON, Presiding Justice:

text:
    Ruth MAY, Complainant-Appellant, v. W. J. SUMMERS, Defendant-Appellee.
    No. 48504.
    Supreme Court of Mississippi.
    March 9, 1976.
    John H. Downey, Jackson, for complainant-appellant.
    Agnew, Agnew & Crawford, Jackson, for defendant-appellee.
    Before PATTERSON, P. J., and ROBERTSON and SUGG, JJ.
   PATTERSON, Presiding Justice:

Ruth May, administratrix of the estate of Arus Felts, filed a bill of complaint in the Chancery Court of the First Judicial District of Hinds County against W. J. Summers. She alleged the proceeds from two joint bank accounts in the possession of Summers belonged to the estate of Felts. The chancellor found that the joint accounts were created while Felts was mentally capable of making decisions and “did in fact sign joint survivorship, joint control accounts, both savings account and checking account, that Mr. Summers has not been shown to have violated that intent of those accounts;” whereupon he dismissed the complaint. The administratrix appeals from this decree. We affirm.

In January 1971 Arus Felts, an eighty-year-old veteran, lived in the home of Mrs. Eliza Buchanan who saw to his needs. In May 1972, while still living in the Buchanan home, Felts changed his individual checking and savings accounts into joint accounts with W. J. Summers, the appellee. The assets of these accounts came from the individual deposits of Felts and were unquestionably his property prior to opening the joint accounts. The accounts were established by the indorsement of Felts and Summers upon signature cards though there is a contradiction as to whether these cards were signed in an automobile or in Summers’ office. It is uncontradicted, however, that they were not signed in the bank. Neither is there any evidence to indicate that an official of the depository or other person discussed with or advised Felts the import of a joint account with survivorship.

One of the signature cards, typical of the other, appears below:

Savings
Account Number
118-550-4
Name Arus A. Felts or W. J.
Summers
Address 619 W. Pearl Street
Jackson, Miss. 39203
TO — DEPOSIT GUARANTY NATIONAL BANK, JACKSON, MISS.
The undersigned acknowledge receipt of a copy of rules and regulations of Deposit Guaranty National Bank pertaining to SAVINGS ACCOUNTS and hereby agree to such rules and regulations and all amendments thereto. Below find authorized signatures which you will recognize in all transactions with respect to the above numbered account.
/s/ Arus A. Felts
/s/ W. J. Summers
Opened by L. Phelps Date 5-15-72
RIGHT OF SURVIVORSHIP
The undersigned agree and declare that all funds now, or hereafter, deposited in this account are, and shall be, our joint property and owned by us as joint tenants with the right of survivorship, and not as tenants in common, and upon the death of either of us any balance in said account shall become the absolute property of the survivor. The entire account, or any part may be withdrawn by either of us or the survivor. It is especially agreed that withdrawals of funds by the survivor shall be binding upon our heirs, next of kin, legatees, assigns, and personal representatives.
/s/ W. J. Summers /s/ Arus A. Felts
5-15-72

In July 1972 Felts moved into a hotel owned by Summers where he resided rent free until December 1972. At that time he entered the Veterans Administration Hospital suffering varied and serious health problems. After treatment, he was released to a nursing home where he died on January 10, 1973.

Summers was called as an adverse witness by the complainant and testified that he knew Felts intimately for more than fifty years during which time they were close friends. He stated that Felts was the brother of his first wife and they were brothers-in-law for thirty-eight years, but at the time of Felts’ death they were not related by blood or marriage.

The two accounts contained approximately $10,000 and were created at Felts’ request, according to Summers, to “help him in the handling of his accounts” because “he was sick and wasn’t able to take care of his business.” Several checks were written on the joint accounts by Summers for Felts’ needs, including the purchase of a wheel chair and several small donations to Felts’ church. However, five days prior to Felts’ death Summers withdrew all the funds from the accounts and placed them in his personal account. When questioned regarding this transaction, Summers responded that Felts told him to do so>. None of the questioned funds were expended for anything other than Felts’ needs during his lifetime and his burial expenses thereafter.

The appellant contends the trial court erred in not declaring Summers to be a trustee for appellant’s decedent and in permitting Summers to retain the proceeds from the bank accounts.

The first argument is that Summers was a fiduciary and received the funds in trust for Felts’ benefit and thereby had thrust upon him the burden of overcoming the presumption of the invalidity of the gift arising from the fiduciary relation, citing Ham v. Ham, 146 Miss. 161, 110 So. 583 (1926).

Assuming the existence of a trust, we find no evidence that Summers violated it. The expenditures made by him from the joint accounts were for Felts’ benefit during his lifetime. The expenditure following his death for burial expenses was made by Summers from the proceeds of the joint accounts. The violation urged by the appellant, as we understand it, is that the withdrawal of the assets of the joint accounts by Summers was a wrongful appropriation of Felts’ property because the joint accounts were not intended as gifts and somehow were the result of undue influence. The bill of complaint alleges “the defendant W. J. Summers, in a way unknown to the complainant, procured the defendant to authorize him, the defendant, to withdraw money from, and write checks on, the said savings and checking accounts.”

We find no evidence supporting the vague allegation of undue influence appertaining to the establishment of the joint accounts by Felts. The most that can be said is that Felts was old, did not sign the signature cards in a bank, was not advised of their import and that some five or six months thereafter was sick and irrational. We are of the opinion the trial court was not manifestly wrong in finding that Felts knowingly and intentionally created the accounts while he was mentally capable of doing so.

The argument that the joint accounts did not constitute gifts because Felts did not relinquish entire control of the accounts is doubtless correct inasmuch as they do not meet the standards of common law gifts either inter vivos or causa mortis. Release of control is essential to the completion of a gift. Tucker v. Tucker, 252 Miss. 344, 173 So.2d 405 (1965). The very term “joint account” signifies a sharing of control inconsistent with the common law theory of a gift. Moreover, the terms of the joint account agreement clearly indicate there was no divestment of control by Felts refuting the gift theory. However, this rejection does not defeat the creation of a joint account if it is knowledgeably made. Stewart, Admrx. v. Barksdale, Gdn., 216 Miss. 760, 63 So.2d 108 (1953); Duling v. Duling’s Estate, 211 Miss. 465, 52 So.2d 39 (1951); Leverette v. Ainsworth, 199 Miss. 652, 23 So.2d 798 (1945), and Stephens v. Stephens, 193 Miss. 98, 8 So.2d 462 (1942). The issue, in our view, is whether the joint accounts with survivorship were validly created. If so, we think it necessarily follows the terms of the accounts would control the disposition of the property.

The argument that Summers as a fiduciary had the burden of proof to establish by clear and convincing evidence the validity of the gift is not persuasive. The characterization of a joint account with survivorship to be a gift does not make it so. While a joint account does have some of the elements of a gift, in other aspects it does not. Summers could have reaped a $10,000 bonanza had Felts died shortly after the creation of the joint accounts. On the other hand, he could have been burdened with the responsibility of caring for Felts had Felts lived a number of years. This is only to say that a joint account with survivorship permits either, dependent upon the circumstances. It is a joint account and nothing more.

Our review of the evidence preponderates support of the chancellor’s finding and decree and assuming the fiduciary relationship it meets the standards of Ham, supra.

AFFIRMED.

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


text:
    Nathaniel WARREN v. STATE of Mississippi.
    No. 48933.
    Supreme Court of Mississippi.
    March 16, 1976.
    John C. Webb, Greenville, for appellant.
    A. F. Summer, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Washington County; Arthur B. Clark, Judge.

Before INZER, P. J., and SUGG and WALKER, JJ.

Affirmed.

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

(Written opinion is not for publication)


text:
    Danny OAKS v. STATE of Mississippi.
    No. 48917.
    Supreme Court of Mississippi.
    March 16, 1976.
    Leroy Henderson, Jimmy D. Shelton, Tupelo, for appellant.
   Appeal from Circuit Court, Lee County; L. T. Senter, Jr., Judge.

A. F. Summer, Atty. Gen., by John C. Ellis, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.

Before GILLESPIE, C. J., INZER, P. J., and ROBERTSON, J.

Affirmed.


author: INZER, Presiding Justice.

text:
    Tommy G. MAYCOCK v. Jack K. REED, Superintendent, Mississippi State Penitentiary.
    No. 49120.
    Supreme Court of Mississippi.
    March 16, 1976.
    Michael J. Malouf, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., INZER, P. J., and ROBERTSON, J.
   INZER, Presiding Justice.

Tommy G. Maycock appeals from a judgment of the Circuit Court of the First Judicial District of Carroll County denying a writ of habeas corpus and dismissing his petition. We affirm.

Appellant filed his petition for writ of habeas corpus on April 25, 1975, alleging that on or about December 14, 1973, he was sentenced by the Circuit Court of Carroll County to serve a term of two years in the State Penitentiary for the unlawful sale of a controlled substance on a plea of guilty to each of four indictments, being Causes No. 2825, 2826, 2827 and 2828. It was alleged that the judgments imposing sentences were confusing as to whether they were to run concurrently or consecutively, and therefore must be construed to run concurrently. It was further alleged that petitioner had already served more than two years and was entitled to be discharged.

As an additional ground to support his petition, petitioner alleged that he was indicted and sentenced on four separate charges all of which arose out of a single transaction, and therefore, he was sentenced for four separate crimes when, in fact, only one crime was committed, and the sentencing for four separate crimes constituted double jeopardy in violation of his constitutional rights.

A hearing was had and the circuit judge denied the petition holding that the sentences were not ambiguous because under the statute they were to run consecutively. A judgment was entered denying the writ of habeas corpus. Hence, this appeal.

The first question raised on appeal is whether the sentences as imposed were to run consecutively or concurrently. The record reveals that appellant was indicted by the grand jury on four separate indictments for the violation of the controlled substances act. In Cause No. 2825, he was charged with selling marijuana on September 9, 1973, to J. Dempsey Newman for $30; in Cause No. 2826, he was charged with selling marijuana on September 9, 1973, to James K. Anthony for $45; in Cause No. 2827, he was charged with selling 150 tablets of LSD on September 9, 1973, to J. Dempsey Newman for $270; and in Cause No. 2828, he was charged with selling on September 9, 1973, 50 tablets of LSD to James K. Anthony for $70.

At the December 1973 term of the court, appellant, represented by retained counsel, entered separate pleas of guilty to each of the indictments. The judgment in Cause No. 2825 reads as follows:

This day into open Court came the District Attorney who prosecutes for the State of Mississippi and came also Tommy G. Maycock in his own proper person and represented by counsel and was lawfully arraigned upon an indictment lawfully returned by the Grand Jury of the First Judicial District of Carroll County, said State, charging the said defendant with the crime of Unlawful Sale of a Controlled Substance, to-wit: cannabis sativa, commonly known as marijuana. And being duly advised of all his legal and constitutional rights in the premises and being further advised of the consequences of such a plea and defendant did then and there enter his plea of guilty to said indictment.
Therefore, for said offense and on said plea of guilty it is by the court ordered and adjudged that the said Tommy G. Maycock be and he is hereby sentenced to serve a term of two (2) years in the State Penitentiary, and he is remanded into the custody of the Sheriff to await transportation.
So ordered and adjudged in open court, this the 14th day of December 1973.

That part of the judgment in the other three cases imposing a sentence of two years in each case are in the same language as set out above.

The controlling statute is Section 99-19-21, Mississippi Code 1972 Annotated. Prior to 1942 this section appeared as Section 1319, Code of 1930, and reads as follows :

In case of more than one conviction imprisonment on second to begin at end of first.—
When a person is sentenced to imprisonment on two or more convictions, the imprisonment on the second, or each subsequent conviction, shall commence at the termination of the imprisonment for the preceding conviction, and the sentence ought to so specify.

Under this statute there was no provision authorizing the Circuit or County Judges to order sentences to run concurrently and all sentences ran consecutively. In 1942 the legislature enacted Chapter 301, Laws of 1942, amending the above section to read as follows:

AN ACT to amend section 1319, Mississippi code of 1930, so as to provide that circuit and county judges may impose sentences to run concurrently.
Section 1. Be it enacted by the Legislature of the State of Mississippi, that section 1319, Mississippi code of 1930, be and the same is hereby amended to read as follows:
In case of more than one conviction imprisonment on second to begin at end of first.
1319. When a person is sentenced to imprisonment on two or more convictions, the imprisonment on the second, or each subsequent conviction, shall commence at the termination of the imprisonment for the preceding conviction, and the sentence ought to so specify. Provided, however, that when a person is convicted at the same term of a circuit or county court of more than one offense, the judge of such court may impose sentences on such convictions to run concurrently.
Sec. 2. All orders imposing sentences heretofore to run concurrently, if so ordered, are hereby validated and confirmed.

It is clear that the purpose of this amendment was to authorize circuit and county judges in their discretion to order sentences to run concurrently when more than one sentence was imposed, on a defendant at the same term of court and to validate those sentences that the circuit and county judges had theretofore ordered to run concurrently without statutory authority to do so.

Under the terms of the statute all sentences are to run consecutively, unless more than one sentence is imposed at the same term of court, and the judge in his discretion orders the sentences to run concurrently. In the case before us, there is nothing in the judgments to indicate that the sentences imposed were to run concurrently. However, appellant contends that since the order imposing sentence did not specify that they were to run consecutively, they should be construed to run concurrently. While it is true that the statute says that “the sentence ought to so specify” we held in Pickett v. Thomas, 209 So. 2d 192 (Miss.1968) that although the statute in question provides that the sentence ought to so specify, the failure to so specify does not nullify the provisions that all sentences shall commence at the termination of the imprisonment of the preceding sentence.

Appellant also contends that the failure to specify that the sentences were to run consecutively makes the judgments ambigúous and that the rule announced in Anderson v. State, 288 So.2d 852 (Miss.1974), is applicable. In Anderson, the first sentence provided that it was to begin on that day and the other judgments provided that they would begin on that day and were to run consecutively with the first sentence imposed. These judgments were ambiguous and we held that they should be construed most favorably to the appellant. Here there is nothing ambiguous about the judgments entered. Under the terms of the statute they were to run consecutively unless the judgment provided otherwise. Since there is nothing in the judgments specifying whether they were to run consecutively or concurrently, they must be construed to' run consecutively. The trial judge correctly held that the sentences imposed were to run consecutively.

We find no merit in appellant’s contention that the circuit court was in error in failing to hold that the “one transaction rule” applies. It is contended that the four indictments for separate crimes grew out of the same facts and circumstances. At the most all that the proof in the record shows on this issue is that there were four separate transactions on the same occasion, which of course, does not come within the one transaction rule announced in Laughter v. State, 241 So.2d 641 (Miss.1971). We pointed out in Wolf v. State, 281 So.2d 445 (Miss.1973) that an accused may not be prosecuted for two offenses when both arise out of the same transaction, where one is necessarily incident to the other. But where, as here, the same transaction gives rise to separate and distinct offenses, prosecution for one will not bar prosecution for the other.

For the reasons stated this case must be and is affirmed.

AFFIRMED.

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


text:
    Warner JORDEN, Acting Admr. Cum Testamento Annexo of Estate of Dave Warner v. Annie WARNER.
    No. 48572.
    Supreme Court of Mississippi.
    March 16, 1976.
    Daniel, Coker, Horton, Bell & Dukes, Thomas H. Suttle, Jr., Charles Wellborn Witt, Jackson, for appellant.
    Joe G. Moss, Raymond, for appellee.
   Appeal from Chancery Court, Hinds County; Betty B. Tucker, Chancellor.

Before PATTERSON, P. J., and SMITH and BROOM, JJ.

Affirmed.


text:
    Woodrow ANDERSON v. Raymond BROWN.
    No. 48636.
    Supreme Court of Mississippi.
    March 16, 1976.
    William E. Andrews, Jr., William L. Ducker, Purvis, for appellant.
    Smith, Smith, Tate & Stuart, Poplar-ville, for appellee.
   Appeal from Circuit Court, Lamar County; R. I. Prichard, III, Judge.

Before INZER, P. J., and SUGG and WALKER, JJ.

Affirmed.


text:
    John HUDSON, Jr. v. OWEN BROTHERS FARM, INC.
    No. 48599.
    Supreme Court of Mississippi.
    March 16, 1976.
    Eubanks & Temple, Purvis, for appellant.
    Aultman, Pope, Aultman, Van Slyke & Tyner, Hattiesburg, for appellee.
   Appeal from Chancery Court, Lamar County; Howard L. Patterson, Jr., Chancellor.

Before PATTERSON, P. J., and SMITH and WALKER, JJ.

Affirmed.


author: GILLESPIE, Chief Justice: SUGG, Justice

text:
    Jerry BARTON v. STATE of Mississippi.
    No. 48880.
    Supreme Court of Mississippi.
    March 9, 1976.
    Constance I. Slaughter, Forest, for appellant.
    A. F. Summer, Atty. Gen., by Vera M. Speakes, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, WALKER and BROOM, JJ.
   GILLESPIE, Chief Justice:

Jerry Barton was convicted in the Circuit Court of Scott County of possessing more than an ounce of marijuana and sentenced to a term in the penitentiary.

The marijuana was found by the officers in an automobile occupied by defendant. The question is whether the highway patrolman had probable cause to stop and search the automobile under the following circumstances.

Patrolman Spears heard over his patrol car radio a broadcast from the dispatcher of the Meridian office of the Highway Patrol that a 1966 Ford automobile, white over red, with a certain tag number, was proceeding east on 1-20 to Forest, occupied by a white female and two white males, and that marijuana was supposed to be in the automobile. No other information was contained in the dispatch.

After Patrolman Spears received the radio dispatch, he drove to the Forest exit on 1-20 and parked. In about fifteen minutes, he saw an automobile that fitted the description given in the radio dispatch traveling east on 1-20. Spears pulled onto the highway and began following the white over red 1966 Ford which took the Forest exit. Spears turned on his lights and siren and stopped the Ford automobile as it turned north on Highway 35. As he approached the automobile Spears saw beer cans inside and what he believed to be marijuana on the seat. Another officer arrived and the Ford automobile, driven by Donna Blackwell and occupied by defendant and another white male, was searched. No permission was asked or given to search the automobile. Less than one ounce of marijuana was found under the front seat and about a pound in the trunk.

The State bases its argument that the search was lawful on the ground that Patrolman Spears had probable cause to believe that the automobile contained contraband (marijuana), and, therefore, was justified in stopping and searching the automobile. The State’s argument is that under Fuqua v. State, 246 Miss. 191, 145 So. 2d 152 (1962), the radio broadcast heard by Patrolman Spears wás an official dispatch, was presumed to be authentic, and was, therefore, sufficient to constitute probable cause. The State also relies upon the Carroll doctrine, originating in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), which was reaffirmed in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), and followed by this Court in Hall v. State, 288 So.2d 850 (Miss.1974), and Wolf v. State, 260 So.2d 425 (Miss. 1972).

The rule that official dispatches are presumed to be authentic is not the equivalent of saying that probable cause is established by showing that an officer receives an official dispatch that a certain described vehicle contains contraband. Nor does the Carroll doctrine aid in solving the probable cause problem. The Carroll doctrine comes into play only after probable cause has been established. In the present case, the Carroll doctrine would permit the search if probable cause had been established. A search warrant could not have been obtained in the few minutes that elapsed between the radio dispatch and the arrival of the suspected automobile. Undoubtedly the circumstances were exigent.

On the probable cause question to search an automobile without a warrant, the standards are substantially the same as those required for a search warrant. Whitley v. Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).

Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), followed by O’Bean v. State, 184 So.2d 635 (Miss. 1966), requires that probable cause must be established by showing (1) that the informer was reliable and (2) the informer must have obtained his knowledge by personal observation or in some other dependable manner rather than through casual rumor. In the present case, the informer of Spears was the Highway Patrol dispatcher, and since official dispatches are presumed to be correct, the informer was reliable. But there is no showing where or how the official dispatcher (Spears’ informer) obtained the information that the automobile in question had contraband in it. There was a total failure to supply the basis-of-knowledge test required by Aguilar. Therefore, we hold that the search conducted by the officers was invalid, and the evidence seized as a result of the invalid search was inadmissible. The peremptory instruction should have been given.

While the State’s case is based principally on the proposition that the information given Officer Spears was sufficient to constitute probable cause because it was an official police dispatch, the Court has also considered the question of whether the information was sufficiently detailed so as to be self-verifying to justify a search under Joyce v. State, 327 So.2d 255 decided by this Court on January 6, 1976. In Joyce, among other circumstances, it was shown that the officer was told that sixty pounds of marijuana would arrive at the Jackson Municipal Airport from Phoenix, Arizona, and that a Larry Wann would meet a subject at the airport around four or five p. m. Thus, it can be seen that the information in Joyce, in addition to being more detailed, was sufficient to apprise the officers that a felony was being committed. This is not so in the present case.

This case is distinguishable from Fuqua v. State, supra, where the official dispatch gave information of the existence of a felony warrant, and cases similar to Singletary v. State, 318 So.2d 873 (1975), where officers had information insufficient to establish probable cause but sufficient to justify an investigative stop.

REVERSED AND DEFENDANT DISCHARGED.

RODGERS, P. J., and PATTERSON, INZER, SMITH and ROBERTSON, JJ., concur.

SUGG, J., dissents.

SUGG, Justice

(dissenting):

I dissent because, in my opinion, the defendant should not be discharged but the cause should be remanded for another trial.

I agree with the majority that the state should have shown the source of information of the radio dispatcher who broadcast the radio message which resulted in the search of the vehicle in which defendant was riding.

The validity of the search was raised on a motion to suppress and the motion was denied; therefore, the state had a right to rely on the ruling of the circuit judge and should be given an opportunity to present the matter again so that it can show the source of information which resulted in the radio broadcast.

      . The ruling on the admissibility of the evidence was made pursuant to a motion to suppress and the ruling thereon was made by the predecessor of the circuit judge who tried the case.


text:
    John Reed SAUCIER v. STATE of Mississippi.
    No. 48924.
    Supreme Court of Mississippi.
    March 9, 1976.

      Jimmy D. McGuire, Gulfport, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Ca-joleas, Special Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, SMITH and ROBERTSON, JJ.
   SMITH, Justice:

John Reed Saucier was convicted in the Circuit Court of the First Judicial District of Harrison County of the murder of Earl W. Phillips, Sr., a Harrison County patrol officer. For his offense he was sentenced to life imprisonment in the penitentiary. He appeals.

Four propositions are assigned as having constituted prejudicial error requiring reversal,

Dealing first with Saucier’s motion for change of venue, the record reflects that there was a direct conflict in the evidence as to whether the defendant could or could not receive a fair and impartial trial in Harrison County. The trial court, after considering this evidence, as well as the answers of the members of the special venire given upon their examination on voir dire, found that there was no such prejudice against the defendant in Harrison County that he could not receive a fair and impartial trial. The trial court did not abuse its discretion in so finding or in overruling the motion for a change of venue. The action of a trial court in denying a motion for change of venue will not be reversed unless it is made to appear that there has been a clear abuse of discretion. Parks v. State, 267 So.2d 302 (Miss. 1972), cert. denied 411 U.S. 947, 93 S.Ct. 1923, 36 L.Ed.2d 408; Tarrants v. State, 236 So.2d 360 (Miss.1970), cert. denied 401 U.S. 920, 91 S.Ct. 907, 27 L.Ed.2d 823; Slyter v. State, 246 Miss. 402, 149 So.2d 489, 150 So.2d 528 (1963); Anderson v. State, 246 Miss. 821, 152 So.2d 702 (1963).

It is contended on behalf of Saucier that the trial court committed reversible error in overruling a motion for a mistrial made after the jury had been selected and the trial of the case on the merits was about to begin. The voir dire examination of prospective jurors is ordinarily not reported in this state except where specially rquested. The examination of members of the special venire was not reported and, therefore, does not appear in the record. When the motion for a mistrial was presented to the trial judge on the eve of the trial, at the request of appellant’s counsel the reporter read back the remark made by the District Attorney to the judge in the course of the voir dire examination which is the basis of appellant’s motion. From this it appears that, at some point in the course of his examination of the prospective jurors the District Attorney addressed the court as follows :

May I take exception to the Court’s ruling because I feel that it is important that the testimony and appearance of the Defendant will show. I don’t want some Juror who wouldbelieve the State’s case, but because of his age could find him guilty. I think I would be entitled to know if we have someone on the Jury like that. I would not like someone like that sitting on the Jury who may believe that the Defendant is guilty, but could not find him guilty because of his age.

It appears that, at the time the remark was made, an objection was interposed by appellant to this statement and the objection was sustained. It does not appear upon what ground the objection was made at that time. Nor does it appear that appellant, after his objection had been sustained, thereupon moved to quash the venire panel or for a mistrial upon the ground that reference to appellant’s “testimony” was a forbidden comment upon appellant’s failure to testify, an event which only developed later on when the case was tried.

This Court can act only on the basis of the contents of the official record, as filed after approval by counsel for both parties. It may not act upon statements in briefs or arguments of counsel which are not reflected by the record. Therefore, we are unable to say that appellant, after his objection had been sustained by the trial court, took any further action at that time, either by moving to quash the venire or for a mistrial.

The motion for a mistrial, based upon the incident, which occurred on voir dire examination of the venire, and not presented until a jury had been selected, impaneled and sworn, the parties and attorneys were present, the witnesses for both sides were in attendance and the trial was about to begin, came too late. A party may not wait until a jury has been actually impaneled and, if he does not like it, obtain a mistrial on the basis of an incident of this kind which had occurred on voir dire examination of the panel. We are unable to say, from the meager report of the alleged incident which was inserted in the record, in what context the remark of the District Attorney was made. In any event, appellant’s objection having been sustained (on whatever ground was then assigned, if any), it was necessary that he immediately move to quash the venire or for a mistrial, if he regarded the sustaining of his objection insufficient to remove any supposed harmful effect which may have resulted from the District Attorney’s remark to the court. Wilson v. State, 234 So.2d 303 (Miss.1970).

In Wilson, supra, this Court said:

Later in the voir dire examination the district attorney made the following statement:

Q. All right, now it will develop in this case, and I’ll tell you right now, there’s no question about it, that Billy Roy Pitts, Lord willing, will testify as a witness.
An objection was interposed and arguments followed, whereupon the objection was sustained. The argument propounded by the defendant is that the reference to “if he lives” and “Lord willing” had the innuendo of inflaming the jurors against the Klan in general which would prejudice the defendant, a Klansman. We note that the defense attorney did not move to quash the jury panel after the court sustained his objection. Moreover, we are of the opinion this contention has little or no merit since the remarks are taken out of context and appear to be little more than everyday expressions not arising to prejudicial proportions. The appellant obtained the ruling he requested and since he made no request for a mistrial, he waived any further complaint as to the statements. Hyde v. O'Neal, 234 Miss. 112, 105 So.2d 553 (1958); Aldridge v. State, 180 Miss. 452, 177 So. 765 (1938); and Wells v. State, 162 Miss. 617, 139 So. 859 (1932). (234 So.2d at 307-308).

If it should be supposed that some member of the venire heard the District Attorney so address the court, and later on became a member of the jury, it does not appear that the remark, under the circumstances, was so prejudicial as to have required that the venire be quashed or a mistrial entered. When a motion for a mistrial finally was presented, the trial court’s offer to instruct the jury for the purpose of removing any possible harm which might have been occasioned by the remark, was declined.

It is next contended that Saucier’s confession was improperly admitted into evidence; that the verdict of the jury was not based upon nor supported by competent and credible evidence but was against the overwhelming weight of the evidence on the issue of Saucier’s sanity, it being appellant’s contention that the State failed to establish his sanity beyond a reasonable doubt.

The record reflects that, at the time of the homicide, Saucier had a poor school record and had dropped out after completing the eighth grade. He had a high temper and various conflicts with his father. His IQ was rated at 102. He had enlisted in the Army when he was seventeen years old and at the time of the homicide was AWOL. He said that he had been assigned to the “Rehab” Company, explaining that this assignment had been made because he had “a profile of bronchitis.” After going AWOL, he returned to the community where his father and mother lived, driving an automobile which he said he had borrowed from another soldier, who was also AWOL. Prior to shooting the patrolman, Saucier went about in this automobile wearing a black wig.

At some time before the date on which the homicide occurred, Saucier had learned that Patrolman Phillips, the victim of the shooting, had been inquiring about an automobile roughly answering the description of the one he was driving. He stated to an acquaintance that if Patrolman Phillips tried to stop him that he would kill him. He also made the statement that if any officer tried to stop him that he would kill the officer.

On the day Patrolman Phillips was killed he passed the automobile of appellant. He immediately turned the patrol car around, apparently to follow Saucier, and Saucier speeded up and sought to escape. However, Saucier lost control of the car and wrecked it. Phillips came up to where Saucier’s car was off the road and stopped and got out of the patrol car. As he started around the patrol car Saucier took a shotgun out of his car, loaded with Number 1 buckshot, and at very close range shot Phillips in the abdomen, all of the buckshot taking effect. From this wound Phillips shortly died.

As Phillips lay on the ground dying, Saucier got in the patrol car and fled the scene. Later on he “ditched” or hid the patrol car and started through back ways to the home of his parents. Before he reached their home he took off his wig, a red shirt that he was wearing, (because it was conspicuous or noticeable), and certain identifiable boots, and hid these articles together with the shotgun, across the street from his parents’ home. He entered his parents’ house through a window and said that it was his intention to call the sheriff and to report that his automobile had been stolen. It was unclear, however, whether he actually did this or not.

After he was apprehended by the officers he was handcuffed, given his Miranda warnings, and was being taken to jail when his father appeared and had a conversation with him while he was in the patrol car. In the course of this conversation the father told his son that if he had committed the crime to tell the officers about it.

After arriving at the jail, Saucier’s “Miranda rights” were again read to him and at this time he elected to give a statement to the officers. There was an objection to the introduction of this statement into evidence and a motion was made to suppress it.

The interrogation of Saucier by the officers and his answers, were recorded on video tape. In his statement Saucier admitted having shot Phillips with the shotgun and sought to explain the shooting by saying, in effect, that he thought Phillips was drawing his gun and that the shotgun “went off.” The record does not show that Phillips was armed at the time.

During the course of the examination of Saucier and the giving of his statement Saucier showed signs of being remorseful, cried from time to time, and expressed contrition, saying that he wished that it were he that had been killed rather than Phillips. After the statement had been transcribed, after 10:00 o’clock the following night, the exact time not being shown, Phillips signed the transcription of his statement.

An evidentiary hearing was conducted upon Saucier’s motion to suppress. It is not contended that Saucier was mistreated or abused or that any improper inducement or promise was made or offered. Saucier was arrested in the late afternoon or early evening of the night of the same day on which Phillips was killed. The questioning began at about 8:45 on the night of his arrest and was concluded in less than an hour, that same evening.

Saucier elected not to testify on the motion to suppress nor did he testify upon the trial of the case upon the merits. However, it is objected that his confession was not admissible because he had not had his rights explained to him as required in Miranda. The evidence on this point was quite strong to the effect that he had been twice informed as to these rights prior to any interrogation. It is contended that Saucier was incapable of giving a voluntary statement. However, Saucier was seventeen years old, had completed the eighth grade in school and a month after his arrest a psychological evaluation revealed that he had an IQ of 102 and was of normal intelligence. A psychiatric examination conducted about a month later also revealed that he was of normal intelligence. The trial court was justified in finding that Saucier’s rights had been explained to him before interrogation as required by Miranda, that he voluntarily and understandingly executed a waiver and consented to being questioned, although he was in a remorseful state and cried from time to time during the questioning. Stewart v. State, 273 So.2d 167 (Miss.1973).

Finally, the defense of insanity having been raised, Saucier challenges the sufficiency of the evidence to establish that he had been sane and had known right from wrong at the time he killed Patrolman Phillips. Two psychiatrists appeared and testified in Saucier’s behalf. In the course of their testimony these experts gave opinions that Saucier was psychotic. They said that, in their professional opinion, Saucier had been, at the time of the homicide, unable to appreciate the nature and consequences of his act or to know that in killing Phillips he was doing wrong. One, however, on cross-examination, did state that if Saucier had been confronted immediately after killing the officer and had been asked, he would have said that what he had done was wrong. The State offered one psychiatrist who testified that appellant had not been insane and had known the difference between right and wrong and had known that in slaying the officer he was doing wrong. The trial court properly submitted the defense of insanity to the jury on instructions granted at the request of appellant as well as the State. No objection or criticism as to the form or content of any instruction was or is made.

This Court has held that where the defense of insanity is interposed in a criminal case the jury, in deciding the issue, is not restricted to a consideration of the testimony of experts only but may and should take into consideration all facts and circumstances in evidence touching upon or relevant to the issue, including evidence as to the conduct and actions of the accused before, at the time of, and after the commission of the act. In the case of Smith v. State, 245 So.2d 583 (Miss. 1971), the Court said:

The thrust of appellant’s argument on this point is that the jury was bound to accept the expert opinions of the two psychiatrists who testified for him upon the issue of insanity. The opinions of these experts were, of course, competent and relevant to the issue. However, un-contradicted evidence before the jury acquainted the jurors with the conduct of the appellant before, at the time of, and subsequent to the homicide. ... It was the prerogative of the jury, and it was its duty, to consider all of this evidence. The jury was not deprived of the right to use common sense or of applying the lessons of human experience in resolving the question of whether the appellant had or had not appreciated the nature and consequences of his act and had or had not known that it was wrong. The expert opinions of the psychiatrists were not conclusive upon that issue. (245 So.2d at 585).

In this case it is undisputed that Saucier had stated that he would kill Phillips or any officer who attempted to stop him. He prepared to carry out this threat by placing a shotgun in his automobile loaded with Number 1 buckshot. He was AWOL from the Army and had a reason for wishing to avoid officers of the law. When he observed Patrolman Phillips turn around and begin following him, he put on speed and attempted to escape by flight. This resulted in the wrecking of his automobile. When Phillips arrived at the scene Saucier took the shotgun, with which he had prepared himself, out of his car and shot Phillips at close range, although it does not appear from the record that Phillips was armed at the time. This was exactly what Saucier had stated that he would do. He left Phillips on the ground dying, took the patrol car and fled in it from the scene. Afterward, he ditched the patrol car or hid it, removed his conspicuous, bright colored shirt, his boots (which were unusual and identifiable) and his wig, and hid them. In his statement, he said that he had planned to call the sheriffs office and to report that his car had been stolen. In his confession he attempted to justify his act by saying that he thought Phillips was about to draw his gun and that his shotgun had just gone off. In deciding the issue of insanity in this case the evidence was sufficient to present an issue of fact for determination by the jury and was sufficient to justify the jury’s conclusion that Saucier was sane as reflected by the verdict of guilty.

There is no contention that Saucier did not shoot and kill Phillips. That he did so was conceded in the oral argument of the case. We find nothing in the record to support a contention that anything occurred in the course of Saucier’s trial of so prejudicial a nature as to require a reversal of his conviction. The evidence is clear and convincing that the killing of Phillips by Saucier was premeditated and planned, that Saucier’s actions following the shooting strongly indicate a perfect knowledge and understanding on his part that he had done a grievous wrong, and, in fact, had committed a serious crime. The case must, therefore, be affirmed.

AFFIRMED.

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


text:
    Bennie Lee CHAPMAN v. STATE of Mississippi.
    No. 48906.
    Supreme Court of Mississippi.
    March 9, 1976.
    William S. Mullins, III, Laurel, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

Before PATTERSON, P. J., and ROBERTSON and SUGG, JJ.

Affirmed and remanded.

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

(Written opinion is not for publication.)