author: INZER, Presiding Justice, SUGG, Justice,

text:
    Woodrow ISAACKS v. STATE of Mississippi.
    No. 49542.
    Supreme Court of Mississippi.
    Sept. 14, 1977.
    Rehearing Denied Nov. 16, 1977.

      Alexander & Johnston, William B. Alexander, Cleveland, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., and SUGG and LEE, JJ.
   INZER, Presiding Justice,

for the Court:

Appellant, Woodrow Isaacks, and his wife, Vera Isaacks, were jointly indicted in the Circuit Court of the First Judicial District of Bolivar County for the crime of unlawful possession, growing and manufacturing marijuana with the intent to deliver. After a trial, Mrs. Isaacks was acquitted, and Mr. Isaacks was found guilty of the lesser included offense of possession of more than one ounce of marijuana. He was sentenced to serve two years in the State Penitentiary and to pay a fine of $2,000. From this conviction and sentence he appeals. We reverse and remand.

This case involves the question of whether evidence seized as a result of a search made under the authority of a search warrant, which the state admits was void, is admissible in evidence over the objection of the owner of the premises searched. We hold that a search made under a void warrant is illegal and the fruits of an illegal search are not admissible in evidence.

The facts in this case reveal that on Monday, September 9,1974, the officers of Bolivar County, armed with a search warrant, went to the residence of appellant and his wife and searched their premises. Nothing was found in or near the residence, but approximately one-half mile from the residence the officers found and seized 1,030 stalks (3,620 pounds) of plants, which after a laboratory test were determined to be marijuana. After the plants were seized, appellant and his wife were arrested and were later indicted by the grand jury.

Mr. and Mrs. Isaacks filed a motion to suppress the evidence seized as a result of the search alleging that the search warrant was void for several reasons. A hearing was had on the motion to suppress, and the court found that the search warrant was “completely and utterly defective for fifteen or twenty reasons.” In spite of this finding, the court overruled the motion to suppress and allowed the state to introduce the evidence seized as a result of the search.

The testimony on the motion to quash revealed that on Friday, September 6,1974, Officers Simpson, Merritt and Woods, acting on a tip from an informant, went to the property adjacent to the property owned by appellant and his wife. The two tracts of land are separated by a stream known as Snake Creek. The stream was several yards wide and its banks were twenty-five to thirty feet deep. The officers carried with them cameras equipped with telephoto lens and field binoculars. Although this was a rather densely wooded area, the officers saw and took pictures of plants growing on Isaackses’ land which in their opinion were marijuana plants. These plants were about 35 yards from the bank of the creek. Officer Simpson went across the creek to the east bank which was on appellant’s property. He said his purpose for going across the ditch was to ascertain the quantity of marijuana. When asked if it was not for the purpose of getting closer so that he could be sure that it was marijuana, he said that he was positive in his own mind that the plants were marijuana plants, but to be positive you have to send it to the lab.

The officers continued a surveillance of the property, and on the next day Officer Simpson saw what, in his opinion, was another patch of marijuana growing on the Isaackses’ land. The following day was Sunday and Officer Simpson again observed what, in his opinion, was another patch of marijuana growing on the Isaackses’ land.

The following day, after conferring with the County Attorney, Officer Simpson made an affidavit, the magistrate issued a search warrant and the officers conducted a search and seizure under the authority of this warrant, which turned out to be a void search warrant.

Appellant contends that the trial court was in error in refusing to suppress the evidence seized under the void search warrant. The state admits that the search warrant under which the seizure was made was void, but contends that the evidence seized as a result of the search was admissible for the reason that the officers could have gone on the property after seeing the marijuana and arrested Mr. and Mrs. Isaacks without a warrant, because they were committing a felony in their presence by growing marijuana on their land. The state also contends that the officers had a right to seize the marijuana under the “plain view” doctrine. In other words, the state is saying that although we seized the marijuana while making the search under a void warrant, the evidence is admissible because we could have, but did not use some other procedure to procure the evidence. This really amounts to nothing more or less than an attempt to circumvent the exclusionary rule.

In Tucker v. State, 128 Miss. 211, 90 So. 845 (1922), this Court, although not required to do so at that time, aligned itself with the Supreme Court of the United States and held that evidence obtained as a result of an illegal search was not admissible in evidence. In so holding the Court stated:

We adopt as the better rule that laid down by the supreme court of the United States in the cases above referred to. And in doing so we follow that court, which is our greatest exponent of constitutional law, and at the same time promote uniformity of state and Federal de-cisión, which would be of sufficient weight to resolve any doubt, if there were such. Therefore we hold that the state’s witnesses in this case should not have been permitted to testify as to what they saw in the home of the defendant, which they had illegally invaded, because in so doing it was tantamount to forcing the defendant to give evidence against himself.
(128 Miss, at 223, 224, 90 So. at 848).

In 1924 the legislature, in an attempt to circumvent the exclusionary rule, enacted Chapter 244, Laws of 1924, Section 3 thereof which reads as follows:

The testimony of any lawful officer or officers and the introduction as evidence of any intoxicating liquor or any still or appliance or receptacle used in the manufacture or transportation of the attempted manufacture or attempted transportation of intoxicating liquor, in the trial of any criminal case involving a violation of the prohibition laws of the state of Mississippi, shall not be rendered inadmissible or incompetent, by reason of the fact that such officer, or officers, was not armed with a due and proper search warrant authorizing the search of the building, room in a building, place or of the automobile or other vehicle in the course of which search the facts and information testified to were ascertained and discovered and the liquor, stills, and appliances for its manufacture or transportation were seized.

In Orick v. State, 140 Miss. 184, 105 So. 465 (1925), we held the act was unconstitutional and, among other things, said:

Section 23 of the Constitution, as construed by the court, commands the court to reject evidence obtained by an officer in violation thereof. The legislature commands the courts to admit such evidence. Which shall we obey? Is the legislature capable of repealing or amending the Constitution by a simple legislative act passed as other statutes are passed, and not referred to the people as provided for in section 273 of the state Constitution? We are sworn to uphold and obey the Constitution. The Constitution is essentially superior to the legislature, and the fact is that the court’s right and duty is to declare the statute passed in violation of the Constitution to be null and void and of no effect. Our own court, at an early date in the state’s history, held acts of the legislature unconstitutional.
(140 Miss, at 189, 190, 105 So. at 466).

Since our decision in Tucker, supra, we have consistently applied the exclusionary rule to the effect that evidence seized as a result of . an illegal search is not admissible in evidence. Then, too, the Fourth and Fifth Amendments to the Constitution of the United States have been made applicable to the states and, we are bound to follow the decisions of the Supreme Court of the United States in this regard. So, it is no longer a question for this Court to decide whether it will follow the exclusionary rule. We must follow the decisions of the Supreme Court of the United States construing the Fourth Amendment.

The search in this case was made under the authority of a void warrant and was an unreasonable search which is prohibited by Section 23 of the Constitution of 1890. In Adams v. State, 202 Miss. 68, 30 So.2d 593 (1947), we held that where the officers were armed with a valid search warrant and failed to serve a copy to the owner of the premises, who was present until the search was completed, was an illegal search. The state contended that the serving of the warrant after the search was completed made the search legal. This Court said in response to this argument:

It was too late then to legalize retroactively the illegal search already finished, or to make the evidence obtained thereby admissible at the trial of appellant here. The search was, therefore, unreasonable, under the general rule that every search and seizure is unreasonable where it is not made according to law. 47 Am.Jur., at p. 533, Section 52. Thus appellant was thereby deprived of her right to security from unreasonable search guaranteed by Section 23, Constitution 1890, through the cooperation of the district attorney, contrary to the obligation of his office. This was not his purpose, but was, nevertheless, the effect of his activities on this occasion. (Emphasis added).
(202 Miss, at 76, 30 So.2d at 597).

It is likewise too late to make an illegal search in this case legal by saying that a legal search could have been made but in fact was not made.

In Joyce v. State, 227 Miss. 854, 87 So.2d 92 (1956), we held that officers investigating a livestock theft could testify as to what they had seen from a public road which ran by the house of Joyce. But having entered his property and searching without a valid warrant, they could not testify concerning facts learned as a result of their illegal entry. In the case before us, the officers could testify as to what they saw while observing from the adjacent property and likewise photographs taken on the adjacent property were admissible. But evidence obtained as a result of the illegal search, including the photographs taken during the illegal search, should have been excluded. See also, Lancaster v. State, 188 Miss. 374, 195 So. 320 (1940).

Only under certain circumstances may officers seize contraband in “plain view” without a warrant. They are (1) incident to a valid arrest, (2) where officers have a valid search warrant to search a given area for specific objects and in the course of the search come across contraband, (3) incident to “hot pursuit” of a fleeing suspect, or (4) incident to a search of a stopped automobile on probable cause or because of the mobility of the vehicle. In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), the Supreme Court of the United States in reference to the “plain view” doctrine said:

The limits on the doctrine are implicit in the statement of its rationale. The first of these is that plain view alone is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle discussed above, that no amount of probable cause can justify a warrantless search or seizure absent “exigent circumstances." Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure. Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951; Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153; Jones v. United States, 357 U.S. 493, 497-498, 78 S.Ct. 1253, 1256-1257, 2 L.Ed.2d 1514; Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828; Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663. (Emphasis added)
(403 U.S. at 468, 91 S.Ct. at 2039, 29 L.Ed.2d at 584).

It is clear from the foregoing statement that the argument of the state that the officers had a right, upon seeing what they thought to be marijuana growing on appellant’s premises, to go on the property and seize the contraband without a warrant is without merit.

There is no doubt that probable cause existed for the issuance of the search warrant in this case, but probable cause does not justify a warrantless search or a search under a void warrant. In Coolidge v. New Hampshire, supra, the Court said:

As for the proposition that the existence of probable cause renders noncompliance with the warrant procedure an irrelevance, it is enough to cite Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 70 L.Ed. 145, decided in 1925:
“Belief, however well founded, that an article sought is concealed in a dwelling house, furnished no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause.”
See also, Jones v. United States, 357 U.S. 493, 497-498, 78 S.Ct. 1253, 1256, 2 L.Ed.2d 1514; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319. (“[T]he rights * * * against unlawful search and seizure are to be protected even if the same result might have been achieved in a lawful way.’’). (Emphasis added).
(403 U.S. at 450, 451, 91 S.Ct. at 2030, 29 L.Ed.2d at 574).

It is apparent from the foregoing quote that the state’s contention that, although the search was unlawful, the evidence is admissible because it could have been obtained in a lawful way is without merit.

It is also apparent from the decisions of the Supreme Court of the United States that the “plain view” doctrine does not eliminate the requirement that seizure of contraband discovered while in “plain view” must comply with the Fourth Amendment requirements and in the absence of “exigent circumstances” be based on a valid warrant. Furthermore, the fact that the evidence the officers anticipated seizing at a particular place turns out to be in plain view when the officers arrive, cannot justify their seizure without obtaining a valid warrant. Here, of course, the officers found the plants which, in their opinion, were marijuana at the place where they anticipated they would be, but they did not have a valid warrant and the seizure was unlawful.

We find no merit in the contention of the state that the evidence seized by the officers at the unlawful search was admissible because the officers could have arrested the appellant for committing a felony in their presence. The officers did not follow this procedure and the arrest of the appellant was not made until the unlawful search was completed and was made as a result of the unlawful search. There was no seizure as a result of the lawful arrest in this case.

In numerous cases the Supreme Court of the United States has held that there is no exception to the rule that illegally seized evidence is inadmissible at trial, no matter how relevant nor how trustworthy the evidence may be as an item of proof. The purpose of the rule being to deter overreaching conduct by officers prohibited by the Fourth Amendment to the Constitution. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969).

The officers in this case did what they were required to do. They went to the proper officials to procure a search warrant. It was not their fault that the search warrant turned out to be void, but under the decisions of this Court and the decisions of the Supreme Court of the United States, the evidence seized under the authority of the void search warrant was not admissible. The trial court was in error in refusing to suppress this evidence and for this reason this case must be reversed and remanded. On another trial of this case, all evidence obtained as a result of the illegal search will be excluded.

For the reasons stated, this case must be and is reversed and remanded.

REVERSED AND REMANDED.

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

SUGG, ROBERTSON, and WALKER, JJ., dissent.

BOWLING, J., took no part.

SUGG, Justice,

dissenting:

The majority holds that the growing marijuana plants seized were not admissible in evidence because the Fourth Amendment rights of the defendant were violated. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The facts in this case are readily distinguishable from the facts in Coolidge and the cases cited in Coolidge.

In our case officers observed marijuana growing on the land of defendant on three different days while they were standing on the property of another. They were able to identify the marijuana as such and took pictures of the marijuana with a camera equipped with a telescopic lens. Under these conditions it is my opinion that the officers had a right to seize the contraband because no search was involved and the seizure was not unreasonable. The fact that they obtained an invalid search warrant did not make the seizure unlawful because no contraband was recovered except that observed by the officers while they were standing on the land of other persons. Their observation of the growing marijuana was made without intrusion upon the property of the defendant.

In Coolidge, a search warrant was issued for an automobile owned by the defendant who was a suspect in a murder case. The Court held that the warrant was invalid because it was not issued by a neutral and detached magistrate. Coolidge’s automobile was searched under the invalid warrant and vacuum sweepings taken from it were introduced in evidence in an attempt to show by microscopic analysis that it was highly probable that the murder victim had been in Coolidge’s automobile. Against this factual background the Court held that the seizure and subsequent search of Coolidge’s automobile was not incident to a valid arrest, that a warrantless search of the car was not justified on the ground of probable cause, and that the search of the automobile was not justified on the theory that the automobile was an instrumentality of the crime and subject to seizure because it was in plain view.

In support of the opinion limiting the doctrine of plain view the Court cited the following cases: Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951; Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153; Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514, 1518; Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828; Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663.

Coolidge and the cases cited by the Court are entirely different on a factual basis from the case at bar. One common theme runs through Coolidge and the other cases, namely, there was intrusion in a building or an automobile owned or occupied by the defendants in each of the cases.

In Taylor v. United States, supra, officers entered a garage and seized whiskey after catching the odor of whiskey coming from within and looking through a small opening and observing many cardboard cases which they thought contained whiskey. In Johnson v. United States officers entered a hotel room upon smelling burning opium and searched the room. In Trupiano v. United States, the officers had information that a distillery was located in a barn, could smell fermenting mash, heard a motor running, entered the barn and seized the distillery. In McDonald v. United States, officers entered a room after peeping over a transom and observing activities usually associated with a lottery. In Jones v. United States, officers entered the home of defendant and seized a distillery after observing mash running from a hose connected to defendant’s home, detected the distinctive odor of hot mash, heard sounds from within the house, of voices and of a blower burner commonly used in that area to heat distilleries. In Chapman v. United States, officers, with the consent of defendant’s landlord, during defendant’s absence, entered his rented house through an unlocked window and seized a distillery and a number of gallons of mash. In each case the plain view did not occur until a search was in progress.

With reference to the plain view doctrine the Court stated in Coolidge :

What the ‘plain view’ cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification — whether it be a warrant for another object, hot pursuit, search incident to lawful arrest; or some other legitimate reason for being present unconnected with a search directed against the accused — and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the ‘plain view’ doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. (403 U.S. at 467, 91 S.Ct. at 2038, 29 L.Ed.2d at 583).

The Court then stated, “The rationale for the plain view exception is evident if we keep in mind the two distinct constitutional protections served by the warrant requirement.” These two protections enunciated by the Court are:

First, the magistrate’s scrutiny is intended to eliminate altogether searches not based on probable cause. The premise here is that any intrusion in the way of search or seizure is an evil, so that no intrusion at all is justified without a careful prior determination of necessity. See, e. g., McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153; Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782; Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576; Chimel v. California, 395 U.S., at 761-762, 89 S.Ct. [2034], at 2039 [23 L.Ed.2d, at 692-693]. The second, distinct objective is that those searches deemed necessary should be as limited as possible. Here, the specific evil is the ‘general warrant’ abhorred by the colonists, and the problem is not that of intrusion per se, but of a general, exploratory rummaging in a person’s belongings. See, e. g., Boyd v. United States, 116 U.S., at 624-630, 6 S.Ct. [524], at 528-532 [29 L.Ed., at 748-751]; Marron v. United States, 275 U.S. 192, 195-196, 48 S.Ct. 74, 75-76, 72 L.Ed. 231 [236, 237]; Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431. The warrant accomplishes this second objective by requiring a ‘particular description’ of the things to be seized. (403 U.S. at 467, 91 S.Ct. at 2038, 2039, 29 L.Ed.2d, at 583).
The Court then stated:
The ‘plain view’ doctrine is not in conflict with the first objective because plain view does not occur until a search is in progress. In each case, this initial intrusion is justified by a warrant or by an exception such as ‘hot pursuit’ or search incident to a lawful arrest, or by an extraneous valid reason for the officer’s presence. And, given the initial intrusion, the seizure of an object in plain view is consistent with the second objective, since it does not convert the search into a general or exploratory one. As against the minor peril to Fourth Amendment protections, there is a major gain in effective law enforcement. Where, once an otherwise lawful search is in progress, the police inadvertently came upon a piece of evidence, it would often be a needless inconvenience, and sometimes dangerous — to the evidence or to the police themselves — to require them to ignore it until they have obtained a warrant particularly describing it. (Emphasis supplied). (403 U.S. at 468, 91 S.Ct. at 2039, 29 L.Ed. at 583, 584).

In our case the seizure of the growing marijuana does not violate the constitutional protections of the warrant requirement of the Fourth Amendment because, (1) the officers observed the growing marijuana without intrusion on defendant’s land while standing on the land of another person adjacent thereto, and (2) the seizure of the marijuana previously observed by the officers did not convert their acts into a general exploratory search.

Coolidge states that where an otherwise lawful search is in progress and police come upon a piece of evidence, “it would often be a needless inconvenience and sometimes dangerous — to the evidence or to the police themselves — to require them to ignore it until they have obtained a warrant particularly describing it.” It seems to me that a logical corollary to this rule is: if a police officer observes contraband while standing at a place where he has a right to be, it would be needless, sometimes dangerous, to the evidence or to the police themselves, and foolish to require a police officer to turn his back on the contraband, and leave it until he could obtain a warrant.

When a person exposes contraband to plain view, he should not be heard to complain that seizure without a warrant violates his Fourth Amendment rights. My view is strengthened by the holding of the United States Supreme Court in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924) where the Court, speaking through Mr. Justice Holmes, stated:

[T]he special protection accorded by the 4th Amendment to the people in their ‘persons, houses, papers, and effects’ is not extended to the open fields. The distinction between the latter and the house is as old as the common law. 4 Bl.Com. 223, 225, 226. (265 U.S. at 59, 44 S.Ct. at 446, 68 L.Ed. at 900).

I am of the opinion that the facts in this case fall within the rule announced in Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968) in which the Court stated:

It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. (390 U.S. at 235, 88 S.Ct. at 993, 19 L.Ed.2d at 1069).
For the foregoing reasons, I dissent.

ROBERTSON and WALKER, JJ., join in this dissent.


source: Caselaw Access Project

author: FLOYD LOGAN, Commissioner

license: Public Domain

text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. Frank ROBERTSON, Sr.
    No. 49643.
    Supreme Court of Mississippi.
    Oct. 26, 1977.

      Danks, Craig & Moss, Ben J. Piazza, Jr., Earl Keyes Jackson, for appellant.
    Stennett, Wilkinson & Ward, E. W. Sten-nett, Erwin C. Ward, James A. Peden, Jr., Jackson, for appellee.
    Before SMITH, P. J., BROOM and LEE, JJ., and LOGAN, C.
   FLOYD LOGAN, Commissioner

for the Court:

Mississippi State Highway Commission filed this action in a Special Court of Eminent Domain for Hinds County to condemn certain property located in the City of Jackson. The jury awarded the landowner, Frank A. Robertson, Sr., the sum of twenty-six thousand dollars ($26,000) damages, and the trial judge entered judgment for twenty-five thousand dollars ($25,000) to conform to the pleadings. The Commission appeals the award, and Robertson cross-appeals the remittitur of one thousand dollars ($1,000). We reverse and remand for a new trial.

The Highway Commission has assigned five errors in the trial below, but, since the case must be reversed and the other assigned errors probably will not recur, we only discuss two questions.

I.

Did the trial court err in admitting testimony of offers and opinions to purchase the subject property as evidence of the fair market value of the property condemned?

The landowner testified that, in his opinion, the value of the property before the taking was sixty-five thousand dollars ($65,-000), and that his opinion was based on the fact he had been offered sixty-five thousand dollars ($65,000) for the property by a prospective purchaser. His opinion was not based upon a comparison of the value of his property with surrounding properties, but solely on what he had been offered for it. No objection was made by the Commission to this testimony.

Jack Bass, a justice of the peace, who had some experience with real estate, testified that he had offered Robertson sixty-five thousand dollars ($65,000) for the property prior to the taking. The offer was oral and no formal buy-sell agreement was ever executed between Bass and Robertson. No objection was made to this testimony by the Commission.

Frank Box testified that he had an option to purchase the property prior to its taking. The trial court sustained an objection to the admission of the option contract. Box then testified without objection that he had an option to purchase the subject property for sixty thousand dollars ($60,000), that he did not have a contract to purchase or a buy-sell agreement, and that the value in the option was “not necessarily” based on comparable sales.

Offers or options to purchase property are not competent evidence to establish the fair market value of property. State Highway Commission v. Johnson, 186 Miss. 889, 191 So. 820 (1939); 27 Am.Jur.2d, Eminent Domain, § 428 at 330 (1966); 29 Am.Jur.2d, Evidence, § 399 at 451 (1967). The testimony of Robertson, Bass and Box was, therefore, not competent to establish the fair market value of the property. The Highway Commission, however, made no specific objection to this evidence at the time it was offered. The fact that evidence which is introduced in a case may be, if objected to, incompetent evidence under some one or more exclusionary rules of evidence, does not destroy its probative effect, if admitted without objection. Meridian Hatcheries v. Troutman, 230 Miss. 493, 93 So.2d 472 (1957). The weight of such evidence is for the determination of, and is that which is attributed to it by, the trier of facts. Roberts v. Interstate Life and Accident Ins. Co., 232 Miss. 134, 98 So.2d 632 (1957); 29 Am.Jur.2d, Evidence, § 494 at 552 (1967) and 30 Am.Jur.2d, Evidence, § 1103 at 268 (1967). Although the Commission now assigns the admission of such testimony as error, this Court will not consider such an objection not specifically made to the trial court at the time the evidence was offered, and the trial court did not err in admitting same without objection. Lake v. Harrington, 210 Miss. 74, 48 So.2d 845 (1950); 5 Am.Jur.2d, Appeal and Error, § 601, at 67 (1962).

II.

Did certain jury instructions comment on the weight of the testimony?

Instruction No. 6 submitted by appellee and granted by the court over appellant’s objection reads as follows:

The Court instructs the jury that a land owner in an eminent domain case is a competent witness in his own behalf and you should consider his testimony along with all of the rest of the testimony in the case. (Emphasis added).

This instruction states the general law as to the competency of the landowner as a witness in an eminent domain case. However, the question of the competency of witnesses is a question of law for the Court, while the weight and credibility to be accorded their testimony are questions of fact for the jury. Pearl River Valley Water Supply Dist. v. Wood, 252 Miss. 580, 172 So.2d 196 (1965). The instruction is, therefore, improper as an instruction on a matter of law which is not within the jury’s function to determine. It is by nature argumentative and does not submit any fact finding for the jury’s determination. Cheatham v. State, 67 Miss. 335, 7 So. 204 (1890).

More important, the instruction is a comment on the weight of the evidence and invades the province of the jury. Mississippi Code Annotated, Section 11-7-155 (1972) provides that “The Judge in any civil cause shall not sum up or comment on the testimony, or charge the jury as to the weight of evidence . . .”. This instruction singles out the testimony of the landowner as distinguished from the other testimony in the case and tells the jury that “they should consider his testimony.” As this Court said in Gurley v. State, 101 Miss. 190, 57 So. 565 (1912):

We have never perceived upon what principle the trial Courts have acted in singling out particular portions of the evidence in a cause, and telling the jury that it ought or might consider this, that, or another part of the evidence in connection with the other evidence in reaching a verdict. By admitting the evidence the Court has declared its competency, and the jury should be left to its function of determining the weight and effect to be given to it. [57 So. at 566].

See also Thompson v. State, 73 Miss. 584, 19 So. 204 (1896).

Although the cases cited above are criminal cases, the propositions stated are applicable with equal force to civil cases.

Robertson’s testimony that the property had a fair market value of sixty-five thousand dollars ($65,000) before the taking represents a three dollar and fourteen cents ($3.14) per square foot value for the property. This valuation is not supported by any testimony in the case other than the Bass offer of sixty-five thousand dollars ($65,-000) and the Box option of sixty thousand dollars ($60,000), which were incompetent although not objected to. The highest valuation testified to by landowner’s and con-demnor’s appraisers as supported by comparable sales was two dollars fifty cents ($2.50) per square foot. However, this comparable sale was distinguished from the subject property as being improved and having higher utilities. Robertson’s testimony about the offer was not objected to, and its weight and credibility were for the jury’s consideration along with the other evidence. Roberts v. Interstate Life and Accident Ins. Co., supra. The jury should have been allowed to make this determination, unfettered by the trial judge’s comments upon Robertson’s testimony. The granting of this instruction, over objection, was error.

Instruction No. 8 submitted by the landowner and granted by the court over appellant’s objection reads as follows:

The Court instructs the jury that the opinion of experts as to values in eminent domain cases are not to be passively received and blindly followed, but are to be weighed by the jury and judged in view of all the testimony in the case, including your view of the premises and the jury’s general knowledge of affairs and are to be given only such consideration as the jury may believe them entitled to receive. (Emphasis added).

As with Instruction No. 6, this instruction attempts to instruct the jury on the competency of witnesses. It is also argumentative and submits no fact determination to the jury.

The giving of a similar instruction disparaging the testimony of expert witnesses was condemned by this Court in Mississippi State Highway Commission v. Stout, 242 Miss. 208, 134 So.2d 467 (1961). In that case, this Court stated:

The instruction singled out and had the effect of disparaging the testimony of expert witnesses . . . While both parties used expert witnesses, appellant used only three, all of whom were experts. [242 Miss, at 224, 134 So.2d at 473].

See also Coleman v. Adair, 75 Miss. 660, 23 So. 369 (1898); Louisville, N.O. & Texas R.R. Co. v. Whitehead, 71 Miss. 451, 15 So. 890 (1894).

All of appellant’s witnesses in the case sub judice as to value of the subject property were expert witnesses.

What is the cumulative effect of Instructions Nos. 6 and 8? Instruction No. 6 told the jury in positive phraseology that they “should consider” the testimony of the landowner. In contrast, Instruction No. 8 denigrated the testimony of expert witnesses in negative phraseology which told the jury that their testimony should not be “passively received and blindly followed.” Thus, the trial court commented upon the testimony by telling the jury to affirmatively consider the landowner’s testimony while being cautionary about the expert witnesses’ testimony. The granting of Instruction No. 8 over objection was error.

Inasmuch as the case is to be remanded for a new trial, we call attention to another feature in the evidence offered by the landowner to which the Commission offered some objections.

The property in question is triangular in shape. The apex or point of the triangle is to the west, and the side of the triangle directly opposite or to the east of the apex, fronts on Boling Street. This eastern boundary along Boling Street is the only access to the property. The Commission proposes to condemn a 30-foot strip along the Boling Street boundary. Robertson offered proof that the taking of the 30-foot strip along Boling Street would severely diminish the property’s utility for a convenience store. No direct proof was offered to show the City of Jackson’s building setback requirements for parking. However, Robertson’s witnesses testified that somewhere between 40 and 75 feet of setback from the street was needed in order to park and turn around without getting into the street traffic. Taking the 30-foot strip would, therefore, push the convenience store building thirty (30) feet further west into the apex or point of the triangle. As a result, there would be no access to the rear of the building along the sides of the building due to the decreasing width of the property in the apex. Access to the rear of a convenience store is vital for the delivery of merchandise and garbage pickup.

Robertson and his expert appraiser, Morris Williams, termed this loss of utility “severance damage.” Robertson testified the property would have virtually no value as a result of this loss of utility as a convenience store. Williams assigned it a “severance damage” of eight thousand dollars ($8,000). The Highway Commission repeatedly objected to testimony concerning the effect of the taking upon the utility of the property as a convenience store.

The testimony of the various witnesses showed the property was suitable for uses other than that of a convenience store, such as a fast food or hamburger chain store and billboard advertising. Special damages cannot be assessed to the taking by considering the property as having utility only for a convenience store.

The test of market value is not the property’s value for a special purpose, but its fair market value in view of all the purposes to which it is naturally adapted . What is done is merely to take into consideration the purposes for which the property is suitable as a means of ascertaining what reasonable purchasers would in all probability be willing to give for it . [27 Am.Jur.2d, Eminent Domain, § 281, at 74, 75 (1966).]

The property’s loss of utility as a convenience store due to the taking is not a special item of damage, but one of the factors to be considered in determining the fair market value of the property after the taking. Miss. State Highway Comm. v. Gipson, 240 So.2d 620 (Miss.1970); Pearl River Valley Water Supply Dist. v. Brown, 254 Miss. 685, 182 So.2d 384 (1966); Miss. State Highway Comm. v. Brooks, 239 Miss. 308, 123 So.2d 423 (1960).

For the errors mentioned, the cause is reversed and remanded for a new trial.

REVERSED AND REMANDED.

PATTERSON, C. J., INZER and SMITH, P. JJ., and ROBERTSON, SUGG, WALK- ‘ ER, BROOM, LEE and BOWLING, JJ., concur.

      . Sitting pursuant to Chapter 430, Laws of 1976. The above opinion is adopted as the opinion of the Court.


author: BOWLING, Justice,

text:
    Kathryn MARTIN v. Dr. William ARMSTRONG.
    No. 49670.
    Supreme Court of Mississippi.
    Oct. 26, 1977.
    Rehearing Denied Nov. 16, 1977.
    David B. Clark, Pearl, William E. McLel-lan, III, Abe A. Rotwein, Jackson, for appellant.
    McLaurin, Nieols & Kelly, John C. McLaurin, Brandon, Baine, Moore, Simmons & Thompson, Louis G. Baine, Jr., Clifford C. Thompson, Jackson, Gerald, Brand, Wat-ters, Cox & Hemleben, Jackson, Jack W. Brand, Jackson and Newton, for appellee.
    Before INZER, ROBERTSON and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

This appeal is from the Circuit Court of Rankin County. Appellant was plaintiff below. The cause has heretofore been before this Court in Cause No. 48,720. After appeal by appellant from an order of the lower court setting aside a default judgment for appellant, the court dismissed the appeal until a final disposition of the cause was made by the lower court. The subsequent trial resulted in a jury verdict for defendant, appellee here. Appellant again appeals, first assigning as error the action of the circuit judge in sustaining appellee’s motion to set aside the default judgment. Also appellant makes certain other assignments of error in the trial of the cause, but we do not reach those assignments of error as the first assignment disposes of the cause.

Appellant filed her declaration on August 9, 1974, alleging that the defendant, on September 11, 1973, negligently performed a cataract extraction operation on the right eye of plaintiff; that because of defendant’s actions, the plaintiff sustained the loss of her eye and certain other damages.

The defendant was served with summons of the circuit court on August 13, 1974, returnable to the August term of the Circuit Court of Rankin County that convened on August 19, 1974. No pleadings of any kind were filed by defendant. On August 20, the circuit court entered an “interlocutory default judgment” and ordered a writ of inquiry. On August 26, the lower court heard evidence from a board-certified ophthalmologist and other witnesses. The undisputed testimony was that the lens of appellant’s right eye was allowed to slip back into the vitreous area of the eye and was not recovered, and there was a vitreous loss and other damage to the eye. The testimony was undisputed that the plaintiff had sustained permanent blindness of the right eye, a cosmetic disfigurement because of other damage to the eye, and the possible removal of the entire ball of the eye. Much testimony was introduced as to permanent physical, mental and emotional difficulty sustained by the plaintiff.

On August 28, 1974, the lower court heard further evidence on the writ of inquiry, including life expectancy, expenses, both present and future, all of which amounted to a considerable sum. The evidence was clear that plaintiff had sustained a severe and disabling permanent injury.

On August 30, 1974, the last day of the August term of court, the circuit judge entered a “final judgment” in the sum of $68,000. The term ended and the court minutes of the term were signed that same day.

On September 5, 1974, appellee filed a motion to set aside the interlocutory default and final judgments. He alleged in his motion that on or about July 25, 1974, he was notified by plaintiff’s attorney of the claim. He alleged that prior to July 30, 1974, a claims representative of defendant’s liability insurance carrier discussed the claim with plaintiff’s attorney. He alleged that on August 1, 1974, plaintiff’s attorney advised the claims representative by letter of a demand of settlement of the claim. Appellee further alleged that on August 6, 1974, the insurer’s claims representative conferred with plaintiff’s attorney and that at that meeting plaintiff’s attorney delivered to the claims representative a copy of the declaration he had prepared to file. The motion admitted that plaintiff’s attorney advised that he could not wait to file the suit until further contact with the insurance carrier.

After service of summons on appellee, he immediately delivered the summons to his insurance carrier whose representative had been discussing the claim with appellant’s attorneys. The motion further alleged that the insurance company’s claims representative contacted an attorney on August 26, 1974. No pleadings of any kind were filed in the cause and neither the court nor plaintiff’s attorneys were contacted. The motion did allege that on August 29, 1974, a letter was postmarked to one of plaintiff’s attorneys regarding a request for additional time to plead. The proof is undisputed that this letter did not reach plaintiff’s attorneys until after the two hearings on the writ of inquiry and the default judgment was entered on the last day of the term.

The court held a hearing on appellee’s motion to set aside the default judgment on September 20, 1974, in the courtroom in Madison County, Mississippi. On that day the court heard evidence regarding the allegations set out in the motion to set aside the judgment. There was testimony from the insurance company’s claims representative and the attorney in line with the allegations of the motion. After receiving this evidence the Court entered the following order:

ORDER SETTING ASIDE INTERLOCUTORY DEFAULT AND FINAL JUDGMENT
This matter came on to be heard on September 20, 1974 on motion of defendant Dr. William Armstrong to set aside and vacate the interlocutory default and final judgment previously entered herein and the Court having heard the testimony in open court and being fully advised of the facts surrounding said judgment and the Court having fully considered the briefs filed herein and the authorities therein cited, and being fully apprised in the premises, is of the opinion that the said motion is well taken and should be sustained for the following reasons: [Emphasis added]
In the August 1974 term of this Court when the Interlocutory Default Judgment was rendered and the Final Judgment was rendered the plaintiff in this case was, according to information furnished the court, ill and in the hospital and was unable to appear in court. There was introduced into evidence a picture of the plaintiff prior to her eye operation and a picture introduced into evidence after her eye operation showing her eye and side of her face to be drawn considerable. The Court at the hearing held in Canton, Mississippi, on September 20, 1974, had opportunity to observe the plaintiff and observe her eye and the condition of her face and it is the Court’s opinion that the photograph showed her face to be drawn more than it appeared to be drawn when the Court viewed the plaintiff in person. The Court, for this reason, since the Court heard the Writ of Inquiry and assessed the damages, is of the opinion that it committed error in the amount of damages and a reasonable doubt exists as to whether or not to vacate said judgment and this reasonable doubt should be resolved in favor of a trial on the merits.
The Court does not say that fraud was committed.
It is for these reasons that the Court has sustained the motion to set aside the Interlocutory Default Judgment entered herein on August 20, 1974, and Final Judgment entered herein on August 30, 1974.
It is further ordered and adjudged that the defendant be and he is hereby allowed five (5) days in which to file his responsive pleadings herein.
ORDERED AND ADJUDGED on this 24th day of October, 1974.

/s/ RUFUS H. BROOME Circuit Judge

Appellant asked for and received a bill of exceptions in which it was stated by the court to one of appellee’s attorneys that “I want the order to reflect that there was no fraud.” The court further ordered the ap-pellee to pay all costs arising out of the default judgment obtained by the plaintiff. The court overruled appellant’s motion for reconsideration. As hereinbefore stated, appellant then appealed to this Court and the appeal was dismissed pending a final disposition of the cause in the lower court.

This Court has no choice in the decision of this case. The law as announced by the previous cases is clear, after the conclusion of the August, 1974, term of the circuit court of Rankin County and the minutes signed, the lower court lost jurisdiction of the cause unless it could be set aside for specific reasons heretofore set out by this Court. We discuss and reaffirm the principal cases decisive of this point.

In Strain v. Gayden, 197 Miss. 353, 20 So.2d 697 (1945), the declaration was filed on October 27, 1943, and process duly served upon the defendant on the same day, returnable to the term of court that convened on November 1, 1943. Defendant’s counsel appeared in person before the court but filed no pleadings of any kind. There was no contention of an agreement between attorneys. This Court stated:

No motion was made by counsel for appellant for time within which to plead, and the court entered no order granting the appellant time within which to plead, and no pleas were filed by appellant on the return day or any other day during the term.
Judgement by default was taken against appellant on November 19, 1943, which was next to the last day of the term, and which was during the period of the court allotted to the criminal docket. Appel-lee’s counsel in their briefs state that they delayed taking default judgment until that day in anticipation that if the appellant wished to contest the case, he would employ counsel and file some sort of pleading to the declaration sued on. However, as stated, supra, no motion, plea or demurrer was filed. No request was made for time, and there was no agreement for time, and no grant by the court of time to plead. So that on the date above mentioned appellee was granted judgment by default in accordance with the declaration. No motion was made during the November term to set aside the judgment thus rendered.
At the May term of Court 1944, the court overruled the motion to set aside the default judgment, and an appeal was taken from the judgment of the court.
Complaint is made that the taking of this default judgment under the circumstances was in effect legal fraud on the appellant since he was not given any notice that it would be taken and his counsel was not present in court. However, counsel for appellee are exonerated completely by counsel for appellant from any imputation of deceit or misconduct or overreaching appellant or his counsel. We do not think that appellant was legally entitled to any further notice as to the progress of the trial when the service of process summoned him to appear at the term of court and defend the suit, and that the charge of legal fraud is not well taken or justified. It is not shown that counsel for appellant was in any measure misled by any act or attitude of counsel for appellee, or that there was any promise or understanding, express or implied, that counsel for appellee would not invoke their right to take a default judgment upon failure of appellant, as defendant below, to plead at the time and in the manner required by the law.
The right to a trial is substantial, but we think the court by its action did not deprive appellant of his right to a trial. This right was forfeited, so to speak, by appellant upon his failure to file any kind of plea or motion for time, or receiving a grant of time from the court, or reaching an agreement with appellee for an extension of time in which to plead. The rules governing these matters are all for the convenience of the courts, and the facility and expedition of its business, and for the government of litigants in the ordinary processes of the court in its administration of business and adjudication.
It is true that the judgment here complained of was by default, but it is also true that a judgment by default, where personal jurisdiction of a defendant has been obtained, is as conclusive either as an estoppel or bar as a judgment in a contested case. A judgment by default is attended by the same legal consequences as if there had been a verdict for the plaintiff. .
Where the court has jurisdiction of the subject matter and the parties and renders judgment at a term of court, it is without power to set aside such judgment after the term of court has elapsed. .
Having reached this conclusion, it is not necessary to discuss any other issues of the case argued in the briefs. We think the court was right in refusing to set aside the judgment, and while we recognize that the rule is a hard one, nevertheless it is justified by reason, experience and law. Therefore, the case will be affirmed.

In Overstreet v. Liberty Mutual Insurance Co., 263 So.2d 528 (Miss.1972), the Court reaffirmed Strain, supra, and said:

Appellant, Roy A. Overstreet, has appealed from a judgment of the circuit court to this Court and contends that the circuit court had no authority to set aside a default judgment, rendered at a regular term of court, after the court had adjourned, where no fraud was shown to have entered into thq procurement of the judgment. This is undoubtedly the law in this state and we have so held from the early history of Mississippi. Hyde Construction Company v. Highway Materials Company, 248 Miss. 564, 159 So.2d 170, [162 So.2d 856] (1963); George v. Standard Oil Company of Kentucky, 239 Miss. 712, 124 So.2d 858 (1960); National Casualty Company et al. v. Calhoun, 219 Miss. 9, 67 So.2d 908 (1953); Strain v. Gayden, 197 Miss. 353, 20 So.2d 697 (1945).

In Alexander v. Killebrew, 321 So.2d 488 (Miss.1975), this Court, speaking through Justice Broom, reaffirmed the holding in the above cited cases. Plaintiff’s [Kille-brew] original declaration was filed on September 26, 1973. Process was personally served on the defendant Alexander on September 26, returnable to the following Monday, October 1, the first day of the court term. Default judgment in Killebrew’s favor in the sum of $2,380.86, plus court costs, was entered on October 23, 1973, and the term adjourned on October 26, 1973. The Court said:

Killebrew’s argument that the court erred in vacating the original default judgment entered against Alexander for $2,380.86 on October 23, 1973, is well founded.
Regarding finality of judgments, Mississippi Code Annotated section 11-7-171 (1972) provides: “. . . judgment shall be entered therefor and be final, if not set aside during the term. . . . ” The appearance of a defendant upon whom a circuit court summons is served must be made in that court at the return term if the process “be executed five days before the return-day thereof.” Miss.Code Ann. § 13-3-11 (1972).
Here the requirement of section 13-3-11 was met. The requisite five days’ service was accomplished according to time computation formula provided by Mississippi Code Annotated section 1-3-67 (1972), which states: “. . . the day of serving the process . . . shall be excluded and the day of appearance included. . . .’’In Strain v. Gayden, 197 Miss. 353, 360, 20 So.2d 697, 698 (1945), we held that process served on Wednesday, October 27, 1943, returnable to Monday, November 1, 1943, the first day of the court term, was “five days” process and that a judgment thereon was not “void or even erroneous.”
It follows that the default judgment originally entered on October 23, 1973, was legally entered and became a valid final judgment when the term adjourned three days later. The general rule is that (except in cases involving fraud, or an absolutely void judgment) a motion to vacate a judgment filed after a term of court adjourns is beyond the jurisdiction of the court. Robb v. Ward, 266 So.2d 133 (Miss.1972). A court loses control of its judgments when the term ends unless there are special circumstances not present in this case. McNeeley v. Blain, 255 So.2d 923 (Miss.1971); Evers v. Truly, For Use and Benefit of Town of Fayette, Mississippi, 317 So.2d 414 (Miss.1975), held that when a final judgment is entered and court is adjourned, “the court no longer had jurisdiction of the subject matter of this cause.” The court further stated in Evers: “After the court adjourned any error in the procedure in arriving at the final judgment could only be corrected by an appeal.” In Willard v. Hill, 317 So.2d 435 (Miss.1975), this Court upheld a motion (overruled by the trial court) to set aside a default judgment, but there the motion had been filed during the term in which the default judgment had been entered.
We therefore hold that it was error for the trial court to put appellee Killebrew to trial (the second time) on the note which was subject of the original default judgment — a valid and final judgment from which no appeal was taken. Accordingly, we do not reach the question as to whether or not the trial court erred (after vacating the default judgment) in refusing to allow Alexander to introduce evidence that he did not execute the promissory note.

The above principles again were plainly set out by this Court in Western Chain Company v. Brownlee, 317 So.2d 418 (Miss.1975).

Appellee advances the theory that this Court should find that appellant and her attorneys were guilty of “legal or constructive fraud.” There is absolutely no evidence that would warrant such a finding. In the first place, the opinion of the circuit judge in his order setting aside the default judgment clearly stated that his only reason was that from observing the plaintiff in the courtroom in Canton on September 20, several weeks after the three hearings on the writ of inquiry, he was of the opinion that he gave too high an award. According to the above discussed cases, he lost jurisdiction of this issue when he lost jurisdiction of the cause. Furthermore, the lower court found as a fact in its order that “the court does not say that fraud was committed.” A review of the entire case clearly shows that no fraud was committed, either actual or constructive. The representative of the insurance company admitted being delivered a copy of the declaration. He admitted receiving the summons immediately after appellee was served. He admitted discussing the claim with appellant’s attorneys and admitted discussing it with his own attorney several days prior to the end of the court term. Appellant’s attorneys secured the interlocutory default judgment on August 20. They could have, at the convenience of the court, presented the writ of inquiry at the same time. This was not done, however, until August 26, 28 and 30. The lower court clearly was correct in holding that there was no fraud committed.

We realize that decisions such as this sometimes cause hardships and sometimes appear not to be entirely equitable. However, this is clearly offset by the opinion of this Court, through Justice L. A. Smith, Sr., in Strain, supra, where the Court said that “these rules are necessary for the administration of the business of the Court and we recognize that the rule is a hard one, nevertheless it is justified by reason, experience and law.” The Court cannot operate without statutes and rules necessary to be followed by the parties and their representatives.

The cause, therefore, is reversed and rendered, with judgment here for the appellant against appellee in the sum of $68,000, with legal interest from August 30, 1974.

REVERSED, RENDERED AND JUDGMENT HERE.

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


author: SUGG, Justice,

text:
    Terrance W. UPSHAW v. STATE of Mississippi.
    No. 49760.
    Supreme Court of Mississippi.
    Oct. 26, 1977.

      Michael B. Martz, J. A. Jennings, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, SUGG and WALKER, JJ.
   SUGG, Justice,

for the Court:

Defendant was convicted in the Circuit Court of the First Judicial District of Hinds County for raping a female child under the age of twelve years and was sentenced to death.

The defendant and his wife resided in Moss Point and in March, 1975 the defendant’s wife requested that she and the defendant be permitted to live with Mr. and Mrs. M. L. Ruffin in Jackson for a short time until they could find employment. Mrs. Ruffin consented to her sister’s request and the defendant arrived at the Ruf-fin’s home on March 19, 1975. The defendant’s wife remained in Moss Point but planned to move to Jackson after defendant secured employment. On March 20, 1975 Mrs. Ruffin retired to her bedroom along with her youngest son and her eight year old daughter, Sophia, about 8:30 p.m. Mr. Ruffin arrived home from a union meeting about midnight and placed the two children in their bedroom before retiring. Mrs. Ruf-fin awakened about 5:30 a.m. the next morning and proceeded to the room occupied by defendant and her oldest son, to awaken the oldest son for school. Upon observing that the defendant was not in his bed, she proceeded to the bedroom occupied by the two youngest children and discovered the defendant in bed with the children. Her questions to the defendant about the reason he was in the children’s bed were ignored and she awakened the children and pulled them out of bed. She took her daughter to the bathroom and discovered that the child had been sexually abused, awakened her husband, informed him that the child had been raped and obtained a pistol from the closet. Mr. Ruffin told his wife to-replace the pistol and call the police. He proceeded to the children’s bedroom and dragged the defendant out of bed when the defendant stated: “I know you are going to kill me for this.” About 6:00 a.m. the police responded to the Ruffin’s call, arrested the defendant, advised him of his rights, and transported him to the police station. Upon arriving at the jail, defendant’s clothing was taken as evidence and he was dressed in a city jail uniform.

We will first address defendant’s argument that the death penalty for the rape of a female child under the age of twelve years constitutes cruel and unusual punishment in violation of the United States Constitution. After oral argument, we deferred consideration of the case until the United States Supreme Court decided Coker v. Georgia, - U.S. -, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). After the decision in Coker additional briefs were requested on the applicability of Coker to this case. In Coker the Court took great pains to limit its decision to the applicability of the death penalty for the rape of an adult woman. The Court stated: “That question, with respect to rape of an adult woman, is now before us.” At least six other times the majority opinion referred to the rape of an “adult woman.” As we view Coker the Court carefully refrained from deciding whether the death penalty for the rape of a female child under the age of twelve years is grossly disproportionate to the crime.

In considering this question we must accept the United States Supreme Court’s concept that the Eighth Amendment bars the death penalty for minor crimes. Certainly rape of a female child under the age of twelve years is not a minor crime and we are of the opinion that the Eighth Amendment does not prohibit death as a punishment for the crime. In reaching this conclusion we follow the principle that it is the function of the legislative department, and not the judicial department, to define crimes and prescribe the punishment therefor. The question of whether the death penalty is an appropriate punishment for the rape of a female child under twelve years of age should rest in the legislatures of the fifty states of the Union. Chief Justice Burger, in his dissent in Coker, stated:

Our task is not to give effect to our individual views on capital punishment; rather, we must determine what the Constitution permits a State to do under its reserved powers. (-U.S. at-, 97 S.Ct. at 2872, 53 L.Ed.2d at 997).

Chief Justice Burger further stated in his dissent:

The question of whether the death penalty is an appropriate punishment for rape is surely an open one. It is arguable that many prospective rapists would be deterred by the possibility that they could suffer death for their offense; it is also arguable that the death penalty would have only minimal deterrent effect. It may well be that rape victims would, become more willing to report the crime and aid in the apprehension of the criminals if they knew that community disapproval of rapists was sufficiently strong to inflict the extreme penalty; or perhaps they would be reluctant to cooperate in the prosecution of rapists if they knew that a conviction might result in the imposition of the death penalty. Quite possibly, the occasional, well-publicized execution of egregious rapists may cause citizens to feel greater security in their daily lives; or, on the contrary, it may be that members of a civilized community will suffer the pangs of a heavy conscience because such punishment will be perceived as excessive. We cannot know which among this range of possibilities is correct, but today’s holding forecloses the very exploration we have said federalism was intended to foster. It is difficult to believe that Georgia would long remain alone in punishing rape by death if the next decade demonstrated a drastic reduction in its incidence of rape, an increased cooperation by rape victims in the apprehension and prosecution of rapists, and a greater confidence in the rule of law on the part of the populace. (-U. S. at -, 97 S.Ct. at 2878-79, 53 L.Ed.2d at 1004-1005).

In addition to the observations of the Chief Justice, we suggest that it is arguable whether the life of a victim might be saved if the rapist knew he would not be put to death unless he killed his victim; however, we do not feel that we have the right to substitute our judgment for the judgment of the legislature on the question of punishment for a major crime such as the one involved in this case. We therefore hold that the death penalty is a permissible punishment for the rape of a female child under the age of twelve years.

In Jackson v. State, 337 So.2d 1242 (Miss.1976), following the death penalty cases decided by the United States Supreme Court, we reversed a sentence of death and remanded the case for a new trial. In Jackson we exercised the inherent power of the Court and prescribed rules of procedure for cases involving the death penalty. We adopted detailed rules providing for a bifurcated trial, permitting jury instructions as to lesser included offenses in proper cases, provided for automatic appellate court review and prescribed appropriate aggravating and mitigating circumstances to be considered by the jury, all in accord with the death penalty cases listed in footnote one. Following our decision in Jackson the state legislature enacted Miss.Gen.Laws Ch. 458 (1977), which made extensive changes in the procedure for the trial and review in death penalty cases. Because the defendant was not afforded a bifurcated trial in accord with Jackson and Miss.Gen.Laws Ch. 458 (1977), this case is reversed for retrial in accordance with the procedure outlined therein. Dobbert v. Florida, - U.S. -, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977).

Having reached this conclusion, other assignments of error must be considered because this case is remanded for retrial.

Defendant contends that the indictment is fatally defective because it does not charge an essential element of the crime in that it does not charge that the defendant “willfully” raped the female child. The indictment charges the following:

That Terrance W. Upshaw, a person over 18 years of age, in said District, County and State on the 21st day of March, A. D., 1975, did unlawfully, unlawfully, felo-niously and forcibly have carnal knowledge of Sophia Catchine Ruffin, a female child under the age of twelve (12) years, in violation of Section 97-3-65(1) of the Mississippi Code of 1972, Annotated .j .

Section 97-3-65(1) Mississippi Code Annotated (Supp.1974) defines the crime of rape of a female child under the age of twelve years in the following language:

Every person eighteen (18) years of age or older who shall be convicted of rape by carnally and unlawfully knowing a female child under the age of twelve (12) years, upon conviction, shall be sentenced to death; .

The crime with which defendant was charged consists of unlawfully having carnal knowledge of a female child under the age of twelve years. The indictment contains the charge of the necessary elements of the crime as defined by statute. If the word “willfully” had been inserted in the indictment it would have been surplusage.

The defendant also argues that the state failed to prove that he willfully committed the offense. This argument is without merit because willfullness is not an essential element of the crime of rape of a female child under the age of twelve years.

Defendant also contends that his motion for directed verdict should have been sustained because of a variance in the name of the victim stated in the indictment and the actual name of the victim shown by the proof. The indictment charges that defendant had carnal knowledge of Sophia Catchine Ruffin, but Sophia’s mother testified that the child’s name was actually Sophia Catecine Ruffin.

The rule in this state concerning a variance in a victim’s name in an indictment and the victim’s actual name is found in Hughes v. State, 207 Miss. 594, 42 So.2d 805 (1949) as follows:

It is next contended that appellant was entitled to a peremptory instruction because the indictment alleged that the offense was committed against Floyd Griffin while the proof showed that the victim’s name is Floyd Griffie. The rule is that ‘an indictment must state the name of the victim of an offense where that is an element of the offense, and a failure to state it, or a material variance between statement and proof is fatal, but an immaterial variance is not.’ 27 Am. Jur., Indictments and Informations, Sec. 183, p. 728. In our opinion the variance in this case was so slight that it is immaterial and the appellant could not have been misled thereby. People v. Gormach, 302 Ill. 332, 134 N.E. 756, 29 A.L.R. 1120; Foreman v. State, 186 Miss. 529, 191 So. 657; McDaniels v. State, 203 Miss. 239, 33 So.2d 785; Bowers v. State, 145 Miss. 832, 111 So. 301. (207 Miss. at 603, 42 So.2d at 807).

In addition to the rule expressed in Hughes, another rule is that not every variance between an indictment and the proof requires an amendment to the indictment or a reversal because of the variance. In Roney v. State, 153 Miss. 290, 297, 120 So. 445 (1929), the rule was stated as follows:

It is not every variance between the allegation in the indictment and the proof that will necessitate an amendment of the indictment or a reversal on account of the variance, but it is only when the variance is material and affects the substantive rights of the defendant. (153 Miss, at 297, 120 So. at 446).

In the instant case the evidence and indictment clearly establishes that defendant was fully aware of the identity of his victim and the crime with which he was charged. A conviction or acquittal on the indictment would preclude another prosecution for the same act and protect the defendant against double jeopardy.

The final assignment of error is stated in defendant’s assignments of error in the form of a question, as follows:

Did the trial Court err in overruling the Appellant’s objections to the introduction into evidence of the Appellant’s clothing and statements made by the Appellant to the police concerning his age in violation of the Appellant’s 5th and 6th U. S. Constitution rights?

Under this assignment of error defendant argues that: (1) his arrest was illegal because the officer arrested him without a warrant and did not inform him of the object and cause of the arrest as required by section 99-3-7 Mississippi Code Annotated (1972); (2) his clothing could not be seized and used as evidence because his arrest was illegal; (3) his constitutional rights under the Fourth, Fifth and Sixth Amendments of the United States Constitution were violated; (4) the biographical evidence elicited from defendant as to his age violated his constitutional rights.

The crime was discovered by the parents at approximately 5:30 a.m. The police were immediately notified and arrived at the home of the parents at approximately 6:00 a.m. After talking to the parents and ascertaining the details of the crime, the defendant, who was still in the home, was arrested and advised of his rights under Miranda. The record does not reflect that the officers informed defendant of the object and cause of his arrest, but the officer who testified about the arrest was not specifically questioned about whether he informed the defendant of the reason for his arrest. In Clay v. State, 184 So.2d 403 (Miss.1966) we reversed and remanded because a defendant testified that he was not advised of the object and cause of his arrest and held that evidence obtained as a result of his illegal arrest could not be introduced at defendant’s trial. In Clay we stated:

This so-called arrest took place on September 26, 1964, seven weeks and five days after the commission of the crime. It is not clear from the record in this ease whether or not a warrant was issued for the arrest of the defendant. The arresting officer did not testify so there is no testimony in the record that the accused was informed by the arresting officer of the object and cause of the arrest.
The defendant testified that he was not so advised, so the defendant by his testimony made out a prima facie case of illegal detention and arrest.
The burden of proof then shifted to the State to prove that there was probable cause for the issuance of a warrant or reasonable cause for the making of the charge. Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). The arresting officer or officers did not testify so there is no testimony whatsoever in the record to refute the prima facie case of illegal detention and arrest made out by defendant. (184 So.2d at 406).

Later, in Baylor v. State, 246 So.2d 516 (Miss.1971), we addressed the same question and stated:

The arrest of appellant without a warrant is challenged.
Mississippi Code 1942 Annotated section 2470 (Supp.1968) provides for an arrest without a warrant where the arresting officers have reasonable or probable cause to believe that (1) a felony has been committed and (2) the person who is arrested has committed it. This section has been construed and upheld by this Court in several cases. McCollum v. State, 197 So.2d 252 (Miss.1967); Bradshaw v. State, 192 So.2d 387 (Miss.1966); Shay v. State, 229 Miss. 186, 90 So.2d 209 (1956); Bird v. State, 154 Miss. 493, 122 So. 539 (1929); Kennedy v. State, 139 Miss. 579, 104 So. 449 (1925); Dunning v. State, 251 Miss. 766,171 So.2d 315 (1965), cert. denied 386 U.S. 993, 87 S.Ct. 1310, 18 L.Ed.2d 339.
Nor is the arrest under such circumstances invalid because of a failure of the arresting officer to advise the person arrested of its cause at the time of the arrest. Such an omission, however, does shift the burden of proving probable cause to the prosecution. Barnett v. United States, 384 F.2d 848 (5th Cir. 1967); Fuqua v. State, 246 Miss. 191, 145 So.2d 152 (1962); Clay v. State, 184 So.2d 403 (Miss.1966). (246 So.2d at 518).

In the case before us the state met the burden of proving probable cause for the arrest of the defendant. The officers responded to a call within thirty minutes, interviewed the parents, and arrested defendant, who was then present in the parents’ home, after ascertaining there was probable cause to believe that a felony had been committed and the defendant had committed it. The failure to inform him of the object and cause of his arrest merely shifted the burden of proving probable cause to the state, which burden the state met.

Defendant’s argument that his Fourth Amendment rights were violated fails because his clothing was taken as a result of a legal arrest. This procedure was in accord with our holding in Wright v. State, 236 So.2d 408 (Miss.1970) where we stated:

In the instant case the officers took the personal possessions of the defendant after he was arrested. This search is always necessary for many reasons. Among those are: to discover weapons and means of escape; to prevent means of injury to the prisoner and others; to discover necessary medical requirements; to discover evidence in connection with the charge for which accused was arrest ed; to discover wounds and need for immediate first aid, and to preserve the property of the defendant. (236 So.2d at 411, 412). (Emphasis supplied).

Defendant’s argument that his Fifth and Sixth Amendment rights were violated is fully answered by our decision in Baylor v. State, 246 So.2d 516 (Miss.1971) where we stated:

It is contended that the seizure and examination of appellant’s clothing violated his rights under the Fifth Amendment against self-incrimination or his Sixth Amendment right to counsel. In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) the United States Supreme Court held that the withdrawal of the accused’s blood and the admission of the analysis report did not violate self-incrimination rights under the Fifth Amendment. The Fifth Amendment privilege against self-incrimination protects an accused from being compelled to testify against himself, that is, to provide evidence of a testimonial or communicative nature, but does not extend to the securing of real or physical evidence. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Schmerber v. California, supra.
The United States Supreme Court, in Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), held that the clothing involved in that case was not ‘testimonial’ or ‘communicative’ evidence and that the accused’s Fifth Amendment right against self-incrimination was not violated by its introduction upon the trial of the accused.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) is directed toward the protection of an accused’s rights under the Fifth Amendment. It does not deal with the question of searches and seizures. State v. Lyons, 76 Wash.2d 343, 458 P.2d 30 (1969); State v. Forney, 182 Neb. 802, 157 N.W.2d 405 [403] (1968).
The Sixth Amendment right to counsel is not violated by a failure to provide counsel at noncritical stages of an investigation such as are involved in scientific analysis of an accused’s fingerprints, blood sample, clothing, hair, etc. This view is supported by United States v. Wade, supra.
It is established in Mississippi that an arresting officer may search a prisoner’s person and the surrounding area pursuant to a lawful arrest. May v. State, 199 So.2d 635 (Miss.1967) and Shay v. State, 229 Miss. 186, 90 So.2d 209 (1956). One of the fundamental purposes of such a search is to preserve vital evidence. (246 So.2d at 518, 519).

Following defendant’s arrest he was advised of his constitutional rights, transported to the police station and placed in a cell where he was requested to remove his clothing and put on a prisoner’s uniform. Defendant complied with this request and subsequent tests revealed the presence of semen on some articles of defendant’s clothing. Therefore, the seizure and examination of defendant’s clothing did not violate his Fifth and Sixth Amendment rights, furthermore, defendant was advised of his constitutional rights before his clothes were taken. It was not necessary for the officers to specifically inform him that any evidence found from an examination of his clothes could be used against him.

Defendant further argues that the biographical data, which included his age, should not have been introduced. This argument is based on the provisions of section 97-3-65(1) Mississippi Code Annotated (Supp.1974) which provides that any person under eighteen years of age may not suffer the death penalty. This argument is without merit for two reasons: (1) defendant was advised of his constitutional rights before the data was secured from him, and (2) Miranda warnings do not apply to biographical data elicited from an accused for the purpose of booking the accused.

Appellant relies on Proctor v. United States, 131 U.S.App.D.C. 241, 404 F.2d 819 (1968), but better reasoned cases hold that the questions asked during routine bookings of suspects are usually held to be non-interrogative within the meaning of Miranda. See Toohey v. United States, 404 F.2d 907 (9th Cir. 1968); State v. Rassmussen, 92 Idaho 731, 449 P.2d 837 (1969); People v. Hernandez, 69 Cal.Rptr. 448 (Cal.App.1968); Clarke v. State, 3 Md.App. 447, 240 A.2d 291 (1968); People v. Rivera, 26 N.Y.2d 304, 310 N.Y.S.2d 287, 258 N.E.2d 699 (1970).

It appears to us that the type interrogation with which the Court was concerned in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) was an interrogation that had as its purpose the determination of the accused’s connection with the commission of the crime being investigated and the revelation of the facts which reflect on his innocence or guilt. Routine questions asked in booking a suspect relating to his name, age, and place of residence are not proscribed by Miranda. Moreover, in this case defendant was given his Miranda warnings before the booking took place. When proof of age of a defendant is a necessary element in the prosecution of a case the better practice would be to introduce defendant’s birth certificate together with proof that defendant is the person named in the birth certificate.

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

REVERSED AND REMANDED.

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

      . Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).

      . Enacted by Miss.Gen.Laws, . Ch. 576 § 8 (1974).


author: ROBERTSON, Justice,

text:
    NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE v. Robert E. MOODY.
    No. 49611.
    Supreme Court of Mississippi.
    Oct. 26, 1977.
    Rehearing Denied Nov. 16, 1977.

      Jack H. Young, Jr., Young & Young, Jackson, Charles E. Carter, New York City, for appellant.
    William W. Ferguson, Raymond, for ap-pellee.
    Before INZER, P. J., and ROBERTSON and SUGG, JJ.
   ROBERTSON, Justice,

for the court:

Robert E. Moody, a 13-year-veteran of the Mississippi Highway Patrol, brought suit in the Circuit Court of the Second Judicial District of Hinds County, against the National Association for the Advancement of Colored People (NAACP), Dr. Emmett C. Burns, field director for Mississippi of the NAACP, J. L. Brown, President of the Utica, Mississippi, branch of the NAACP, and James Carl Stokes, for libel and slander.

After a full trial, the jury returned a verdict against the NAACP alone for $50,-000 actual damages and $200,000 punitive damages. On a motion for remittitur, the trial judge reduced the actual damages from $50,000 to $10,000, but refused to reduce the punitive damages of $200,000, being of the opinion that the amount of punitive or exemplary damages was peculiarly a question for the jury to decide.

The NAACP filed a motion for a new trial, in which it contended, among other things, “that there was no proof of malice, and that punitive damages should not be allowed.” In its motion for judgment notwithstanding the verdict, the appellant contended:

“That the defendant, National Association for the Advancement of Colored People as a corporation, is responsible for the acts of its agents but can only act through its agents or representatives. That by its verdict in favor of the other defendants, agents of the National Association for the Advancement of Colored People, the Jury found that the agents had committed no acts which entitled the plaintiff to judgment against them. Inasmuch as the agents had committed no acts which entitled the plaintiff to recover damages and since the defendant could only act through its agents, it follows that the defendant should not be held liable for acts which the agents did not commit.”

The trial court overruled the motions for a new trial and for judgment n. o. v.

Some of the errors assigned by the NAACP are that:

1. The NAACP cannot be held liable under Mississippi’s Actionable Words Statute § 95-1-1, Miss.Code Ann. (1972);
2. Highway Patrolman Moody, being a public figure, did not prove actual malice on the part of the NAACP;
3. Plaintiffs instruction 4 is in conflict with Defendants’ instruction 3, in that D-3 instructs the jury that, as a matter of law, Moody is a public figure and must prove actual malice, while P 4 is an abstract instruction not requiring the proving of actual malice.

There were only two eyewitnesses to the arrest: Robert E. Moody, the Highway Patrolman, and James Carl Stokes, the man arrested.

Moody testified that on the night of December 14, 1974, while he was traveling west on highway 18 on regular patrol, that Stokes passed him going east, and that the patrol car’s radar monitor locked in at 84 miles per hour as being Stokes’ speed. Moody turned his patrol car around and gave chase. As Stokes turned off of highway 18 onto the Chapel Hill Road, Moody turned on his blue flashing lights and his siren and chased Stokes for about 8 miles before he could get him to stop. Moody testified that at times he was traveling between 100 and 120 miles per hour.

Moody stopped so that his patrol car’s lights would shine on Stokes’ door. Moody told Stokes to get out of his car and when it appeared that Stokes was reaching down on the floorboard, Moody pulled his pistol. Stokes got out of his car with nothing in his hand, so Moody holstered his pistol. Moody continued:

“I told him to get out and put his hands on the car. I asked him, I said: ‘What’s your hurry?’ He said: ‘My wife is pregnant’. I said: ‘Well, you are under arrest and you are going to jail’. I reached and got his hands and told him to put them behind him. He said: T am not going anywhere’. Well, I grabbed his hands and brought them in behind him there and he struggled to break away and he broke away from me. I grabbed him and throwed him back up against the car again and here I had both hands full trying to get his hands behind him and trying to subdue him and him fighting and we was wrestling around there and I was unable to reach in and get my handcuffs out. As I would begin to throw him up against the car there, he would come back and elbow me and trying to hit me and he broke away from me. Finally, I throwed him back against the car and I had my left hand on his arm and the other hand I was trying to put behind him and he went to swinging back around again and he broke away from the car and, when he did, I reached in my holster, pulled my gun out and hit him on the back of the head. He was swinging around all the time and, when he did, he fell flat on his face on the pavement.”

Moody stated that he then put his knee in Stokes’ back and handcuffed Stokes’ hands behind him.

After the wrecker arrived to tow in Stokes’ car, Moody brought him to jail. A short time later the jailer informed Moody that Stokes was complaining of his head. Moody examined his head, and, noticing a cut in the back of his head, carried him to the hospital where x-rays were made and the cut sewed up. Moody then carried'him back to jail.

Stokes testified that he had attended a baby shower for his wife, had overstayed his time, and that, being the leader of a band, he was hurrying to make his band engagement at a club on Chapel Hill Road.

Stokes stated that his speedometer wasn’t working, and that he was probably speeding. Stokes continued:

“By this time, the car popped around the curve and I saw the blue light blinking and, so, I said to myself — I am speeding — he must be after me. I didn’t stop right then but I slowed down to about thirty and went on down the road and, after I saw him turn towards the way that I was going, I pulled my car over to the side of the road and waited there. He pulled up beside me with the front of his car beside my quarter panel. He got out of his car and he said: ‘Get out of that car, boy’ with his gun in his hand and his flashlight. I got out of the car and he said: ‘Turn around and put your hands against the car’. He caught me by my shoulder and throwed me against the car and he said: ‘Didn’t you see me trying to stop you down that road?’ and I said: ‘No, sir, when I saw you, I stopped’, and he said ‘Shut up’. That’s where he hit me and knocked me down and started kicking me. He said: ‘Get up’. I got up and he threw me up against the back of my car, put the handcuffs on me, carried me around to his car, opened the door, shoved me in and hit me again here

The next day Moody filed three charges against Stokes in the Justice of the Peace Court of F. 0. Patterson, one for reckless driving, another for resisting arrest, and the third for eluding a police officer.

On December 20,1974, Stokes, by general affidavit, filed this charge against Moody in the same Justice of the Peace Court:

“Did then and there, wilfully and unlawfully strike J. C. Stokes about his head with his pistol without any cause whatsoever — ‘Police Brutality’.”

On December 20, 1974, Dr. Emmett Burns, Mississippi Field Director of the NAACP, held a news conference in the office of the NAACP at 1072 Lynch Street, Jackson, Mississippi. All three television stations, WLBT (Channel 3), WJTV (Channel 12), and WAPT (Channel 16), were represented at this news conference. Stokes, Reverend Brown and Dr. Burns spoke out against police brutality. No tape of this news conference was produced or offered into vidence, and it is impossible for this Court to determine from the record who said what at this news conference. The plaintiff introduced several witnesses who testified generally that they had heard and seen this news conference on television, but no specific language was mentioned nor attributed to any particular speaker.

On December 20, 1974, Dr. Burns, Field Director of the NAACP, and Reverend Brown, President of the Utica Branch of NAACP, on NAACP stationery, wrote Commissioner Dillard of the Mississippi Highway Patrol:

“Mr. Stokes was stopped by Patrolman R. E. Moody for speeding. He was told, ‘Get out of the car boy.’ He then was told to put his hands on the car. The officer then hit Mr. Stokes with his pistol and knocked him down, then kicked him in the face. When he got up he said, T ought to kill you boy!’ He then hit Mr. Stokes again with his gun as he sat in the patrol car.
“Though Mr. Stokes admits speeding, the local and state NAACP feel that it is no excuse for brutality. In that regard, we call upon the suspension of officer Moody, until this matter has been fully investigated. We hope you will not ignore this letter.”

A news article in the December 21, 1974, edition of the Jackson Daily News was introduced into evidence. The article read:

“The remarks came after NAACP state director the Rev. Dr. Emmett Burns said an affidavit of brutality and a request for injunctive relief would be filed in connection with alleged brutality against James Carl Stokes, 25, of Utica, by highway patrolman R. E. Moody. The affidavit was scheduled to be filed Friday.
“The Rev. J. L. Brown, president of the NAACP’s Utica branch, said he and Burns had written the governor and Highway Patrol Commissioner W. O. “Chet” Dillard asking that Moody be suspended and a full investigation made of the alleged beating of Stokes Saturday night.
“A spokesman for the governor’s office said it had not received the letter from the NAACP and would reserve comment until the full text of the letter could be studied.”

On January 10,1975, Justice of the Peace Patterson found Stokes guilty of the charges of resisting arrest and reckless driving but dismissed the charge of eluding an officer. Later that day (January 10, 1975), on the motion of Stokes to withdraw and dismiss the charge, Judge Patterson entered an order sustaining the motion and dismissing the charge of police brutality against Moody.

Thereafter, according to the declaration, the only action taken by any of the defendants was the mailing of a letter, dated January 28, 1975, and written on NAACP stationery, by Dr. Burns, field director of the NAACP, to Mr. Thomas H. Keith, Editor of the Hinds County Gazette, at Raymond, Mississippi. Dr. Burns wrote:

“Your January 24,1975, article indicating that Mr. James Carl Stokes withdrew charges against Patrolman R. E. Moody, after making claims of brutality is misleading. The fact of the matter was that Judge Patterson tried Mr. Stokes first and found him guilty, as your article indicates — however, the NAACP believed and still believes that he was not guilty. “Attorney Fred Banks decided it would be a waste of time and effort to turn around and ask the same Judge Patterson in a trial on the same day, at the same time, at the same place, to convict Patrolman Moody.
“We will continue to press charges against brutal law officers. Eventually, we will run across a Judge who will see things our way, even if we have to elect him ourselves.”

This letter, in our opinion, was not libelous of Patrolman Moody.

The NAACP, up until the withdrawal of the charges against Officer Moody on January 10, 1975, had a right to believe Stokes’ version of what happened to him on the night of December 14, 1974, when he was arrested by Patrolman Moody. Moody’s friends had a right to believe his version of the incident. The only publication after January 10,1975, was the letter of January 28, 1975, written by Dr. Burns to Editor Keith, which we have determined was not libelous.

In the absence of a tape of the television interview, there is no evidence of any slanderous statement made by the agents of NAACP against Moody. We are also unable to find in the Jackson Daily News article and the letter to Commissioner Dillard any libelous statement.

The trial court was correct in granting this instruction (Defendants’ Instruction 3):

“The Court instructs you that as a matter of law plaintiff, Robert E. Moody, is a ‘public figure’ with substantial responsibility in the conduct of governmental affairs and he, therefore, has the burden of proving ‘actual malice’ on the part of the defendants, National Association for the Advancement of Colored People, J. L. Brown, Emmitt C. Burns and James Carl Stokes, to recover in this action against them. Actual malice in this context is, either actual knowledge that the statement made was false or a reckless disregard of whether it was true or false.”

In view of the fact that Moody was a public figure and the burden of proof was on him to prove actual malice, the trial court was in error in granting a conflicting instruction (Plaintiff’s Instruction 4), which read:

“The Court instructs the jury that all spoken or written words or charges which, from their usual construction and common acceptance, are considered as insults, and are calculated to lead to a breach of the peace, when communicated to other persons, are slander if spoken or libel if written.”

P — 4 is an abstract instruction and not applicable to this case. It was in direct conflict with and in contradiction of Defendants’ Instruction 3 which was a proper instruction in this case.

Plaintiff Moody did not meet the burden of proving “actual malice” correctly defined in Defendants’ Instruction 3. See New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, 95 A.L.R.2d 1412 (1964).

Inasmuch as Moody was a public figure and actual malice was not proved against the NAACP, the judgment must be reversed and this case dismissed.

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

REVERSED AND RENDERED.

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

BOWLING, J., took no part.