text:
    Toxey Hall WARD v. VALLEY STEEL PRODUCTS COMPANY and Finis R. Merkel, Sr.
    No. 48921.
    Supreme Court of Mississippi.
    Nov. 2, 1976.
    Rehearing Denied Nov. 30, 1976.

      Bacon & Smith, William A. Bacon, Arthur F. Jernigan, Jr., Eaves & Eaves, John Arthur Eaves, Jackson, for appellant.
    Daniel, Coker, Horton, Bell & Dukes, John M. Roach, Jackson, for appellees.
    Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.
   ROBERTSON, Justice, for the Court:

Plaintiff, Toxey Hall Ward, appeals from a judgment of the Circuit Court of the First Judicial District of Hinds County, which judgment was based upon a jury verdict for the defendants, Valley Steel Products Company and Finis R. Merkel, Sr.

Ward brought three identical suits for $100,000 each for the deaths of his three minor sons, Robert, Steven and Jason. These suits were consolidated for trial.

The automobile accident in which the Ward children were killed occurred about 9:00 p. m. on November 10, 1972. Mrs. Esther Smith Ward, plaintiffs wife and the mother of the three little boys, was wrongfully driving her Pontiac stationwagon south in a northbound lane of Interstate 55, about IV2 miles south of the Terry exit from the highway. Interstate 55, a controlled access highway, at this point consisted of two northbound lanes and two southbound lanes, separated by a 30-foot grass median strip. Three tractor-trailer units were proceeding north in the east (slow-speed) northbound lane of the highway.

Ray Chapman was driving the lead unit, which was an empty grain tractor-trailer combination, the wooden sides of the trailer extending the height to about 12 feet above the highway. The second unit in line was an empty grain tractor-trailer, identical in height to the Chapman unit, driven by Homer Parsley. The third tractor-trailer unit was fully loaded with steel pipe, was owned by Valley Steel Products Company and was being driven by Finis R. Merkel, Sr.

The only eyewitnesses were Chapman, Parsley and Merkel, Mrs. Ward having also been killed in the collision. Merkel was called as an adverse witness by the plaintiff, and testified that as the highway became rough and the Chapman and Parsley trucks slowed down that he pulled into the west (fast-drive) northbound lane to pass; that Parsley in the second truck also pulled into the west northbound lane to pass; that the Parsley truck suddenly tried to pull back into the east northbound lane, and that it was at that instant that he got a glimpse of the lights as the Ward station-wagon went underneath the cab of his truck. Merkel stated that he was probably 50 to 100 feet back of the Parsley truck in the west northbound lane, that his vision, of course, was blocked by the Parsley truck, and that he only saw Mrs. Ward’s automobile as it went under his cab just in the bat of an eye.

Chapman in the lead truck testified as a witness for the defendants. He described what he did and how the accident happened in this way:

“[A]s I went over the crest of this little hill or a rise in the highway, I see some bright lights coming and I couldn’t determine at that moment whether they were in the wrong lane but it looked like they were so I flipped my lights a couple of times there to get it to dim where I could get a better location of the car and then I discovered that the car was in the wrong lane so immediately I jerked on my emergency flashers and started braking the tractor down and pulled into the shoulder of the road.
“Q All right, sir. And what is an emergency flasher?
“A Well, it’s a four way flasher that all the signal lights start flashing for a warning signal.
“Q Then what happened?
“A Well, by the time I — before I could get plumb to the shoulder of the road, this car had veered slowly out of my lane into the other lane of traffic and it caught Mr. Merkel head-on.
“Q Now, before you saw the car, what lane were you travelling in?
“A I was in the right outside lane.
“Q When you first saw this car of Mrs. Ward’s, what lane was it in?
“A It was in my lane. It was also in the outside lane headed southbound.
“Q All right, sir. Now, did she have lights on her car?
“A Yes, sir, they were on full bright.
“Q Did you do anything to try to warn her, please, sir?
“A Yes, sir, I flipped my lights at her a couple of times with the dimmer and I didn’t get any response or anything from her or either from my emergency flashers.
“Q All right, sir. Did her car remain in your lane?
“A No, sir, it changed lanes slowly over to the inside lane.
“Q Did it hit your truck?
“A No, sir.
“Q How close did it come to your truck, please, sir?
“A Well, it was still in the inside lane when it went by me as I was getting off to give her more room. As I was veering off the highway, I kept looking in the mirror and, about that time, she hit the Valley Steel Company truck head-on.
“Q Now, could you estimate what speed this automobile was making before this collision?
“A She was doing around the speed limit — around sixty or better.”

Homer Parsley, who was driving the second tractor-trailer unit, testified that he was not passing but was following Chapman’s truck in the right northbound lane; that Merkel had pulled abreast of him in the left northbound lane; that he, Parsley, did not see the car lights of the Ward car until just before the collision. He could see that the Merkel truck with the front of the stationwagon underneath the cab was veering to the right, so he (Parsley) took emergency action and went off on the right shoulder somewhat ahead of Chapman.

The impact knocked out the braking system and steering mechanism on Merkel’s truck, so Merkel’s truck with the station-wagon underneath came in between the Parsley and Chapman trucks and went off of the right shoulder of the east northbound lane.

This case was tried twice before a jury. Both trials resulted in a jury verdict for the defendants. Plaintiff moved for a new trial after the first jury verdict, and the court granted a new trial. The court was of the opinion that Nobles v. Unruh, 198 So.2d 245 (Miss.1967), was applicable; that it was doubtful whether it should have given a sudden emergency instruction for the defendants, and that it was also of the opinion that it had erroneously refused plaintiff’s instruction number 10, which instruction provided that if Merkel had moved his vehicle from the east to the west northbound lane without ascertaining that the west lane was free of the oncoming vehicle of Mrs. Ward, and Merkel was unable to return his tractor-trailer to the east lane and collided with the automobile driven south by Mrs. Ward, then Merkel was negligent and if the jury believed that “such negligence proximately caused or contributed to the death of the Plaintiff’s children”, then it was the jury’s sworn duty to return a verdict for the plaintiff.

On the second trial the court refused to approve a sudden emergency instruction for the defendants, and did grant instruction number 10 for the plaintiff. The jury again returned a verdict for the defendants.

The plaintiff’s sole assignment of error was that “The Court below erred in failing to sustain the Motion of the appellant for a peremptory instruction and directed verdict.”

The appellant states in his brief that he relies specifically on Nobles v. Unruh, supra, which he contends is on all-fours with the case at bar.

In Nobles v. Unruh, supra, Mrs. Amanda Frank Nobles was riding as a guest passenger in an automobile operated by Carl M. Unruh. The Court, in its opinion, gave these facts:

“The automobile was proceeding in an easterly direction in the southernmost lane of U. S. Highway 82, approximately two miles west of Greenwood. The highway at this point consists of four traffic lanes, two lanes for eastbound vehicles and two lanes for westbound vehicles. The east and west lanes are separated by a median or dividing island. At the time of the collision the weather was clear and sunny and the highway was dry. The highway at the point of collision is straight and flat for a long distance.
“Appellee was traveling at approximately fifty-five miles per hour. He overtook a transport truck which was also traveling in an easterly direction toward Greenwood. Both appellee’s vehicle and the transport truck were traveling in the south traffic lane reserved for eastbound vehicles. The truck had red lights flashing on its rear. Appellee proceeded in the south traffic lane until he was within approximately twelve feet of the rear of the transport. At that point he suddenly turned his vehicle into the adjacent north traffic lane in order to pass the transport, and upon doing so collided head-on with a pick-up truck which was proceeding in the wrong direction in the north traffic lane reserved for eastbound traffic. The collision resulted in the death of Mrs. Nobles, appellee’s quest passenger.” 198 So.2d at 246.

The only traffic law in question in Nobles was Mississippi Code Annotated section 8187 (1956) [now Mississippi Code Annotated section 63-3-603 (1972)], which section provides in part:

“1. A vehicle shall be driven as nearly as practical entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”

In deciding Nobles, this Court said:

“By appellee’s own admission he was in violation of section 8187 at the time of the accident. The statute imposed upon him the duty to ascertain that the north eastbound lane of traffic was clear before he began passing the vehicle preceding him. This he failed to do. This Court has said on numerous occasions that the violation of statutes of this type, when neither explained nor excused, constitutes negligence as a matter of law. .
“There is no dispute in the testimony, and appellee offered no evidence excusing or justifying his conduct. For this reason the lower court erred in overruling appellants’ request for a peremptory instruction.” 198 So.2d at 247 (Emphasis added).

In this writer’s opinion, Nobles v. Unruh was properly decided on the facts of that case, but there are many essential and important differences between that case and the case at bar.

1. In Nobles, suit was brought by the heirs of the deceased guest passenger in the automobile (which suddenly pulled out and attempted to pass the transport truck) against her host driver. In the case at bar, the suit was brought by the father of his three deceased minor children (who were riding with their mother who was wrongfully and negligently driving south in a northbound lane of Interstate 55) against the truck driver and his employer rightfully driving north in a northbound lane of a controlled access highway.

2. In Nobles, the weather was clear and sunny. In the case at bar, it was 9 o’clock at night.

3. In Nobles, the accident took place on U. S. Highway 82, an unlimited access highway, while in the case at bar the accident took place on Interstate 55, a controlled access highway.

4. In Nobles, the defendant suddenly drove his automobile into the passing lane when he was approximately 12 feet from the transport truck he was attempting to pass. In the case at bar, Merkel gradually pulled his tractor-trailer into the passing lane when he was some distance from the truck in front of him.

5. In Nobles, the defendant pulled out to pass a truck with red lights flashing on its rear. In the case at bar, Merkel gradually pulled out to pass and had been in the passing (fast-drive) lane several seconds when the truck in the right northbound lane suddenly put on its emergency flashers and began to veer to the right.

6. In Nobles, the collision occurred immediately after the defendant driver had pulled into the passing lane. In the present case, the collision occurred much later.

7. In Nobles, “[b]y appellee’s own admission he was in violation of section 8187 at the time of the accident.” In the present case, the testimony of the three eyewitnesses showed no violation of the statute.

8. In Nobles, there was no dispute in the testimony that Unruh was negligent and was violating a statute. In the present case, the testimony of the only eyewitnesses (Merkel, Chapman and Parsley) was that there was no negligence on the part of Merkel, and that the accident was due solely to the negligence of Mrs. Ward.

9.In Nobles, the defendant (passing driver) offered no evidence excusing or justifying his conduct. In the present case, the testimony of Merkel, Chapman and Parsley justified Merkel’s conduct, and showed that the sole proximate cause of the accident was Mrs. Ward’s great negligence.

The appellant also contends that Merkel was within 50 to 100 feet of Parsley’s truck and was violating Mississippi Code Annotated section 63-3-619 (1972), which provides in part:

“(1) The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.
“(2) The driver of any motor truck or motor truck drawing another vehicle when traveling upon a roadway outside of a business or residence district shall not follow within three hundred feet of another motor truck or motor truck drawing another vehicle. The provisions of this subsection shall not be construed to prevent overtaking and passing nor shall the same apply upon any lane specially designated for use by motor trucks.” (Emphasis added).

We note that Section 63-3-619(2) specifically provides that the 300 foot provision “shall not be construed to prevent overtaking and passing.”

Chapman’s testimony was clear, positive and unequivocal that the Ward automobile suddenly appeared in his lane of travel (the east northbound lane), had its lights on bright, paid no attention to his flashing lights, did not dim its lights, did not slow down, and veered over into the west northbound lane at 60 to 70 miles per hour in front of Merkel. The picture exhibits support Chapman’s testimony, in that the main impact was on the left front of the Ward stationwagon, which would indicate that the stationwagon was veering to its right at an angle.

Even if Merkel had been negligent, which was denied by all three eyewitnesses, his negligent act could not be said to be the proximate cause of an accident unless the accident could have been avoided in the absence thereof. Pargas of Taylorsville, Inc. v. Craft, 249 So.2d 403 (Miss.1971). All three eyewitnesses testified as to the inevitability of the accident due solely to the negligence of Mrs. Ward.

The issues of negligence, contributory negligence, and proximate cause were factual issues for the jury to decide and the trial court correctly submitted these questions to the jury to decide under proper instructions as to the law.

The judgment of the trial court based on the jury’s verdict is, therefore, affirmed.

AFFIRMED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, SUGG, WALKER, BROOM and LEE, JJ., concur.


source: Caselaw Access Project

author: GILLESPIE, Chief Justice, for the Court: LEE, Justice

license: Public Domain

text:
    Larry A. MERRITT v. STATE of Mississippi.
    No. 49247.
    Supreme Court of Mississippi.
    Nov. 2, 1976.
    Rehearing Denied Nov. 30, 1976.
    Dale & Upton, Sebe Dale, Jr., Columbia, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.
   GILLESPIE, Chief Justice, for the Court:

Larry Alan Merritt was convicted in the Circuit Court of Marion County for the murder of his two-year old daughter, Shannon. He was sentenced to life imprisonment.

The facts are stated in the light most favorable to the State because the jury returned a verdict of guilty. Shannon Merritt, age two, daughter of the defendant and his wife Toddie Lynn Merritt, died on February 8, 1975. In November, 1974, again in December of the same year, and again about the middle of January, 1975, the defendant discussed matters concerning the death of his daughter Shannon, including comments as to who pallbearers would be in the event of her death, what his wife’s mother would do if Shannon died, and how many of a certain kind of pill it would take to kill her. On December 14, 1974, defendant took out insurance policies on the lives of his two daughters: $25,000 on the life of Shannon, and $15,000 on the life of Shelia, his one-year old daughter. Defendant borrowed the money from a bank to pay the premiums. Defendant and his wife, Toddie Lynn, were the beneficiaries. These policies became effective on December 14,1974, and were delivered and explained to the Merritts in the latter part of January, 1975.

On the night of February 7, defendant got out of his bed on two occasions, and told his wife he wanted “to sleep with the babies.” He had never slept with the babies before. The next morning about five o’clock, Toddie Lynn heard the defendant call out twice, “Oh, my God,” and saw her husband holding the body of Shannon in his lap. He was in the process of removing from Shannon’s neck a pull cord which had been disconnected from a toy frog. Defendant explained to his wife that he had gone to his car to leave but had returned to kiss the babies good-bye. He also told his wife that he found Shannon lying face down with her face in her pillow. However, the autopsy subsequently performed revealed that the blood, due to gravitational pull, had settled in the back part of Shannon’s body and in the opinion of the physician performing the autopsy, the child was lying on her back at the time of her death. Expert opinion indicated that death was due to asphyxia. However, due to the fact that the cord around Shannon’s neck did not do sufficient damage to the tissues to indicate strangulation, a pathologist was of the opinion that the asphyxia was the result of suffocation.

On the morning of Shannon’s death, the defendant made two telephone calls between 7:30 and 7:45, concerning the insurance on Shannon’s life. About 7:40 o’clock on the morning of Shannon’s death, defendant informed the agent who had written the insurance policies that Shannon had died and defendant wanted to know how he could get his insurance money. He called the agent again on the evening of February 8, and on Monday, February 10, he brought the policy to the insurance agent’s office. The defendant did not take the stand at the trial.

The question for our decision is whether defendant’s wife was a competent witness to testify before the grand jury and at the trial.

Mississippi Code Annotated section 13-1-5 (1972) states:

Husbands and wives may be introduced by each other as witnesses in all cases, civil or criminal, and shall be competent witnesses in their own behalf, as against each other, in all controversies between them. A criminal prosecution of either husband or wife for contributing to the neglect or delinquency of a child or desertion or nonsupport of children under the age of sixteen (16) years or abandonment of children shall be deemed controversies between husband and wife for the purpose of this section. But in all other instances where either of them is a party litigant the other shall not be competent as a witness and shall not be required to answer interrogatories or to make discovery of any matters involved in any such other instances without the consent of both. (Emphasis added)

That part of the statute in italics was added by Chapter 236, Laws of 1954, and became effective on June 20, 1954.

The original statute was a partial codification of the common law rule that one spouse was incompetent to testify in any case for or against the other. The reasons for the common law rule and its codified form are two-fold: (1) At common law, the husband and wife were considered as but one person and because of this unity and identity of husband and wife, when one was excluded on the ground of interest, the other was also excluded (at that time a party in interest was not a competent witness in his own behalf); (2) the courts were reluctant to sanction any rule tending to promote domestic dissension and endeavored to preserve inviolate the mutual confidence which is essential to the marriage relation, the peace of society, and the social welfare. McRae v. State, 104 Miss. 861, 61 So. 977 (1913); 81 Am.Jur.2d, Witnesses § 111 (1976). The common law rule is of great antiquity.

The legislature by several amendments has recognized that at least part of the reasons that brought the rule into being no longer exist. The common law rule that disqualified interested persons as witnesses was removed in this jurisdiction by Chapter 61, Article 190, Code of 1857 [Miss.Code Ann. § 13-1-3 (1972)]. Thus the first of the above-stated reasons for the common law rule concerning spouses does not now exist. The policy considerations stated above as the second of the two-fold reasons for the rule that a spouse was not a competent witness against the other exists now only in part. For instance, the law does not now regard husband and wife as one person in the sense it once did. Disability of cover-ture was abolished in 1880. [Miss.Code Ann. § 93-3-1 (1972)]. Husband and wife have been able to sue each other since 1880. [Miss.Code Ann. § 93-3-3 (1972)]. Dower and curtesy were abolished the same year. [Miss.Code Ann. § 93-3-5 (1972)].

The earliest statute on the subject was the Code of 1857, Chapter 61, Article 193, the entire text of which was: “In criminal cases, husband and wife shall be competent witnesses for each other.” It has been amended several times in order to broaden the category of actions in which a spouse is a competent witness.

Prior to the 1954 amendment, the Court decided McRae, where the defendant was convicted of vagrancy and the question arose as to whether the wife of the defendant was a competent witness against her husband. At that time husbands and wives were “competent witnesses in their own behalf, as against each other, in all controversies between them.” The question was whether in a prosecution for vagrancy the proceeding was a controversy between the husband and wife. The Court stated that the vagrancy statute was a police regulation for the purpose of requiring the husband and father or the head of the family to provide, within his ability, for the support of his wife or family, so that they would not become a public charge. The Court held, in effect, that in a prosecution for vagrancy a controversy between the husband and wife existed and the Court concluded by saying, “We believe that this is such a controversy as to render competent the testimony of the wife in this case.” 104 Miss, at 870, 61 So. at 979. Thereafter the statute was amended, as already stated, in 1954, and there has been two significant cases since that amendment, the first being Fairley v. State, 225 Miss. 371, 83 So.2d 278 (1955). In Fairley, the question was whether the wife was a competent witness against her husband in a prosecution wherein the husband was charged with the rape of his child. The mother did not testify but the court allowed the physician who examined the child to testify that the child’s mother reported the rape to him. The Court held that the physician could not testify because the wife, had she been introduced, would not have been a competent witness. That case is of no assistance in determining whether the 1954 amendment should or should not have been applied for the reason that the State conceded that the mother would not have been permitted to testify. An examination of this case and the original record reveals that the 1954 amendment, although it was in effect several months prior to that crime, was not brought to the attention of the Court or considered by it in rendering the decision.

The other case following the 1954 amendment was Graham v. State, 250 Miss. 816, 168 So.2d 496 (1964). In Graham, the Court stated, “We hold the wife is a competent witness against her husband when he is charged with incest with his and his wife’s minor daughter," and then stated as follows:

The purpose of the 1954 amendment was to further extend the area wherein husband and wife could testify against each other in order to effectively enforce the criminal laws enacted for the purpose of protecting the marital status. Under the 1954 amendment to section 1689, husband and wife are competent to testify against each other in prosecutions for contributing to the neglect or delinquency of a child. The crime of incest involves contributing to the delinquency of a child. We are of the opinion that under the 1954 amendment husband and wife are competent witnesses against each other in all prosecutions within the general classes of crimes therein described. It cannot be successfully argued that incest with appellant’s minor daughter was not a crime contributing to the delinquency of said child. 250 Miss, at 819, 168 So.2d at 497.

It is well settled that a wife is competent to testify against her husband for a crime of personal violence committed by him against her. This common law exception is based on the necessity for such testimony. The exception has also been based on the recognition that once violence has been committed by one spouse against the other, the sanctity of the marriage has been destroyed. Thus, the very reason for the privilege has been ravaged. Wigmore explains:

[I]f the promotion of marital peace, and the apprehension of marital dissension, are the ultimate ground of the privilege, it is an overgenerous assumption that the wife who has been beaten, poisoned or deserted is still on such terms of delicate good feeling with her spouse that her testimony must not be enforced lest the iridescent halo of peace be dispelled by the breath of disparaging testimony. And if there were, conceivably, any such peace, would it be a peace such as the law could desire to protect? Could it be any other peace than that which the tyrant secures for himself by oppression? And could the law pretend to regard the effect produced by a wife’s testimony in her own redress as being worth consideration on behalf of a husband who has already grossly violated his marital duties? If there had been any reason at all for the privilege, that reason surely fell away in such cases. 8 Wigmore, Evidence § 2239 at 243 (McNaughton Rev. 1961).

This Court recognized this common law exception long ago. See Turner v. State, 60 Miss. 351 (1882). The modern trend has been to expand this common law exception to include violent acts committed on the children. When a father murders his child, how can it possibly be said that the prohibition of the wife’s testimony will promote domestic harmony or the peace of society? Indeed, the family has been destroyed and society in general would suffer if the wife’s testimony was withheld from the court. In State v. Kollenborn, 304 S.W.2d 855 (Mo.1957), a similar issue was raised before the Missouri Supreme Court. The defendant had been convicted of a crime of personal violence against his child, and the wife was permitted to testify. Missouri’s competency statute provides only the general rule that one spouse is incompetent to testify against another. The Court stated that the statute should not be read so as to eliminate the common law exception permitting the wife to testify against her husband in cases of violence committed by the husband upon her. The Court went on to expand the common law exception in cases where the husband has been charged with crimes of personal violence against his child. The Missouri Court stated:

The offense presently charged was a crime against the person of an infant less than 5 months of age; there is at least a fair inference that no one was present except the defendant, the wife, and the child. We now hold that the wife, testifying voluntarily, is a competent witness against her husband in a prosecution for acts constituting a crime of personal violence against her child. The exact scope of the common law exception has been somewhat nebulous and confused; we need not attempt at this time to define further its precise limits and boundaries. The present offense can well be classed as one against the marital status, within the authorities using that test as a guide. We hold that every reason of public policy and true necessity which permits the wife to so testify in the event of a personal injury to herself, applies equally here. The modern tendency is to relax the old rules of incompetency of witnesses, generally. Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 369. This tendency is exemplified in many of the modern statutes. It is, in our opinion, contrary to all principles of morality and justice to close the mouth of the only witness in such a case as the present. What is not good sense should not be the law. 304 S.W.2d at 864.

We agree with the Missouri Court and hold that the wife is a competent witness in the prosecution of her husband for crimes involving personal violence against their child. Our Legislature has also recognized that no reason for the privilege exists when there is a controversy between husband and wife. A crime of personal violence against the child is a crime that destroys the conjugal relation and in essence is a controversy between husband and wife within the meaning of our statute.

Other jurisdictions, although using different paths, have reached similar results.

In State v. Taylor, 515 P.2d 695 (Mont.1973), the defendant was convicted of the murder of his child and the conviction rested largely upon the testimony of his wife. A Montana statute provides that where one spouse is a party to a criminal action, the other, absent consent, is not a competent witness. However, this statute, which is similar to ours, provides for exceptions. Cases involving “abandonment or neglect” of children are among those exceptions. In holding that the murder of a child constituted neglect within the meaning of the statute, the Court said:

[T]he purpose of . [the statute] is the protection of the sanctity of marriage and the home. We feel that the purpose of the exceptions to this statute is also protective. In the case of the exception related to the neglect of children, the purpose is protection of children from abuse which could otherwise be practiced without fear or retribution under protection of the marital privilege. If defendant’s construction of this protective exception is adopted, the protection would extend to injuries negligently inflicted but not willful assault, to a negligent homicide but not to premeditated murder. Such a construction is clearly too narrow, outraging both reason and justice. . . . For the purposes of this exception, we hold that the term “neglect” includes any abuse of children whether inflicted negligently or intentionally. In adopting this construction we are satisfied that we reach a result which is required by both reason and justice and which is within the contemplation of the legislature at the time it enacted section 94-8802, R.C.M.1947. 515 P.2d at 703.

In Chamberlain v. State, 348 P.2d 280 (Wyo.1960), the Wyoming Supreme Court held that the statutory rape by the father of his daughter was a crime against his wife within the meaning of its statute providing that a wife is a competent witness in “. . . criminal proceedings for a crime committed by one against the other. . . ” 348 P.2d at 282.

The approach to the problem has differed due to the variety in language of individual state statutes. The result has been the same based on the recognition that once a child has been subjected to personal violence from the hands of the father, no good reason remains for prohibiting the mother from testifying. The Court, in Chamberlain, quoted the following from the concurring opinion of Mr. Justice Stewart in Hawkins v. United States, 358 U.S. 74, 81, 82, 79 S.Ct. 136, 140, 3 L.Ed.2d 125 (1958):

Any rule that impedes the discovery of truth in a court of law impedes as well the doing of justice. When such a rule is the product of conceptualism long ago discarded, is universally criticized by scholars, and has been qualified or abandoned in many jurisdictions, it should receive the most careful scrutiny. Surely ‘reason and experience’ require that we do more than indulge in mere assumptions, perhaps naive assumptions, as to the importance of this ancient rule to the interests of domestic tranquillity. 348 P.2d at 285.

We have carefully considered the other assignments of error and find them without merit. Accordingly, the case is affirmed.

AFFIRMED.

ROBERTSON, SUGG and WALKER, JJ., concur.

PATTERSON and INZER, P. JJ., and LEE and SMITH, JJ., dissent.

BROOM, J., took no part.

LEE, Justice

(dissenting):

Appellant was convicted of an atrocious crime, the murder of his two-year-old child for insurance money. The wife’s testimony is crucial. With it the evidence sustains the conviction, without it the jury may have found appellant not guilty. I do not think appellant’s wife was competent to testify against him, nor do I think the end (conviction) regardless of the crime, justifies the means (conviction by incompetent testimony).

At common law, the husband and wife were not competent witnesses for or against each other, with the exception that a wife was a competent witness against her husband in a prosecution for an assault and battery committed by him on her person. The common law was partially codified by the statutes of this state and exceptions were incorporated therein prior to 1954, which provided that a husband and wife may be introduced by each other as witnesses in all cases, civil or criminal, and were competent witnesses in their own behalves as against each other in all controversies between them. In all other instances, where either of them was a party litigant, the other was not competent as a witness.

The present Section 13-1-5, Mississippi Code Annotated (1972), reads as follows:

“Husbands and wives may be introduced by each other as witnesses in all cases, civil or criminal, and shall be competent witnesses in their own behalf, as against each other, in all controversies between them. A criminal prosecution of either husband or wife for contributing to the neglect or delinquency of a child or desertion or nonsupport of children under the age of sixteen (16) years or abandonment of children shall be deemed controversies between husband and wife for the purpose of this section. But in all other instances where either of them is a party litigant the other shall not be competent as a witness and shall not be required to answer interrogatories or to make discovery of any matters involved in any such other instances without the consent of both.” (Emphasis added)

That part underlined was added by Chapter 236, Laws of 1954, and was enacted at the first session of the Legislature after adoption of Chapter 387, Laws of 1952, which chapter provided that under the Aid-to-Dependent Children Program, when a child under the age of sixteen (16) years to whom an aid-to-dependent children grant was furnished had been deserted or abandoned by the parent (father), the Department of Public Welfare was required to certify such fact to prosecuting attorneys in the respective counties. The apparent purpose of the 1954 amendment was to enable the mother of the child — the wife of the deserting or neglecting father — who, in most cases, was the only witness in same, to testify against her husband. Since the rule in the case of State v. Taylor, 515 P.2d 695 (Mont.1973), which enlarged the word “ne-gleet” to the word “murder,” was cited but not relied upon in the majority opinion, it is not necessary to discuss the 1954 exception further.

The majority opinion, in following the case of State v. Kollenborn, 304 S.W.2d 855 (Mo.1957), said:

“We agree with the Missouri Court and hold that the wife is a competent witness in the prosecution of her husband for crimes involving personal violence against their child. Our Legislature has also recognized that no reason for the privilege exists when there is a controversy between husband and wife. A crime of personal violence against the child is a crime that destroys the conjugal relation and in essence is a controversy between husband and wife within the meaning of our statute.”

The Missouri statute relating to testimony between husband and wife, § 546.260, RSMo 1949 V.A.M.S. (cited in Kollenborn) is as follows:

“No person shall be incompetent to testify as a witness in any criminal cause or prosecution by reason of being the person on trial or examination, or by reason of being the husband or wife of the accused, but any such facts may be shown for the purpose of affecting the credibility of such witness; provided, that no person on trial or examination, nor wife or husband of such person, shall be required to testify, but any such person may, at the option of the defendant, testify in his behalf, or on behalf of a codefendant, . . . .” 304 S.W.2d at 861.

In Kollenborn, the Court stated:

“It will be noted that this statute makes no attempt to incorporate or define the common law exception permitting a spouse to testify in case of an assault or violence to him or her by the other spouse. In this respect the Missouri statute is exceptional.
Having determined that the common law exception permitting the testimony of the wife in certain cases still exists in Missouri, we may now determine its present scope, in so far as this case is concerned. . . .We now hold that
the wife, testifying voluntarily, is a competent witness against her husband in a prosecution for acts constituting a crime of personal violence against her child. . . .” 304 S.W.2d at 861, 863-864.

The Mississippi statute [Mississippi Code Annotated § 13-1-5 (1972)] is different in material aspects from the Missouri statute.

(1) Husbands and wives may be introduced by each other in all cases, civil or criminal (in derogation of the common law).

(2) They shall be competent witnesses in their own behalf, as against each other, in all controversies between them (included is the common law exception that a wife is a competent witness against her husband in a prosecution for assault and battery by him on her person).

(3) In all other instances (other than on a charge of contributing to the neglect or delinquency or desertion or nonsupport of children under the age of sixteen years— 1954 exception) where either is a party litigant the other shall not be competent as a witness (this enacts the common law into statutory law).

The majority decision, in following Kol-lenborn, amends Part 3, supra, of Section 13-1-5, Mississippi Code Annotated (1972), and, insofar as it pertains to any offense against a child of the parties, overrules all eases on the point from the beginning of Mississippi jurisprudence. It is interesting to note that those changes in the common law through the years insofar as the relationship between husband and wife is concerned, as pointed out by the majority, have been accomplished by legislative enactment and not by judicial construction.

In Ulmer v. State, 157 Miss. 807, 128 So. 749 (1930), appellant was charged with and convicted of deserting and neglecting his minor child under the age of sixteen years [Chapter 86, General Laws of 1928, Extraordinary Session] prior to the adoption of Chapter 236, General Laws of 1954 [Exception in Mississippi Code Annotated § 13-1-5 (1972)]. His wife testified, and in reversing the case for that error, this Court said:

“We have repeatedly held that the wife is incompetent to testify against her husband in a criminal case, otherwise than as permitted to do so at the common law, and her testimony under the common law was limited to personal injuries such as assaults upon her, committed during the marriage relation. Under our decisions, therefore, the wife was an incompetent witness against the husband on a criminal charge. McQueen v. State, 139 Miss. 457, 104 So. 168; Doss v. State, 156 Miss. 522, 126 So. 197, and State v. McMullins, 156 Miss. 663, 126 So. 662.” 157 Miss, at 809, 128 So. at 750.

In Fairley v. State, 225 Miss. 371, 83 So.2d 278 (1955), which was a prosecution of the husband for the rape of his fourteen-year-old daughter, a statement of the wife to the doctor who examined the child was admitted in evidence over objection. This Court, in holding that reversible error was committed by the trial court, said:

“The appellant first assigns as error and argues that the court erred in admitting over objection the testimony of Dr. Smith as to what the mother had told him. We are of the opinion that this assignment is well taken. Under Section 1689 of the Mississippi Code of 1942, a wife is an incompetent witness against her husband. If she could not testify over the objection of her husband as to the report of the rape made to her by the prosecutrix, then it was error to permit the doctor to do so, as this would be proving indirectly what could not be proved directly.” 225 Miss, at 374, 83 So.2d at 279.

The Fairley case was decided without benefit of the 1954 amendment, but, since the majority opinion is not based on the amendment, Fairley correctly states the law.

In Wallace v. State, 254 Miss. 944, 183 So.2d 525 (1966), on a prosecution for murder, the Court set out Section 1689, Mississippi Code 1942 Annotated, which is identical with Section 13-1-5, emphasizing that part of said statute set out (Part 3) above, and said:

“It is apparent from this section that the defendant’s wife could not testify against him without the consent of both unless the controversy was between them, which it was not. In fact, we have held that the mere offering of a wife to testify against her husband is reversible error.” 254 Miss, at 947-948,183 So.2d at 526.

In Grier v. State, 158 Ga. 321, 123 S.E. 210, 35 A.L.R. 1122 (1924), Grier was charged with the murder of his child and, in holding it was error for the wife to testify against her husband, where the Georgia statute provided that a wife is incompetent as a witness against her husband in a criminal prosecution except for offenses committed or attempted to have been committed upon her person, the Court said:

“fWJhile the wife . . . would be a competent witness to testify to the offense of assault with intent to murder committed upon her person, if such be the truth of the case, she is not competent to testify to the offense of murder committed upon another, even though in the commission of that offense another and a different offense was committed upon her person. It must be remembered that the wife is not permitted to testify at all except as a matter of exception to the general rule; and the provision for her testifying, being an exception, cannot be liberally extended and must be strictly construed.” 158 Ga. at 329, 123 S.E. at 214.

Graham v. State, 250 Miss. 816, 168 So.2d 496 (1964), cited by the majority, involving a conviction for incest, may be distinguished from the present case, for incest contributes to the delinquency of the minor child as surely as does smoking marijuana with her, and comes within the 1954 exception to the statute. Likewise, McRae v. State, 104 Miss. 861, 61 So. 977 (1913), involved a charge of vagrancy against the defendant, which crime constituted abandonment of the wife and child, was a crime against the wife, and she was competent to testify.

Statutes in derogation of the common law must be strictly construed, and the liberal interpretation of State v. Taylor, supra, enlarging “neglect” to mean “murder” abrogates that rule. If the enlargement in the Montana case and the majority opinion in this case following State v. Koi-lenborn, supra, can extend to a child of the parents, it can be extended to a stepchild, next to a foster child, then to a child over which custody is exercised, and then ad infinitum.

I think the statute should be amended by the Legislature, and, if the Legislature sees fit, the statute could be amended to extend the exception to all crimes committed by a parent against his or his wife’s child. I do not think it should be amended by judicial construction, and I would reverse and remand the case.

PATTERSON and INZER, P. JJ., and SMITH, J., join in this dissent.

BROOM, J., took no part.


text:
    STATE of Mississippi v. Roosevelt COX.
    No. 49286.
    Supreme Court of Mississippi.
    Nov. 9, 1976.

      Carter Dobbs, Jr., Monroe County Pros. Atty., Amory, A. F. Summer, Atty. Gen., Jackson, for appellant.
    Pennington, Walker & Turner, Bennie L. Turner, West Point, for appellee.
    Before PATTERSON, P. J., and SUGG and WALKER, JJ.
   PATTERSON, Presiding Justice, for the Court:

Roosevelt Cox was indicted for the felonious battery of James Arthur Crawford, Jr., a child under the age of thirteen years. A motion to quash the indictment was sustained on the grounds of former jeopardy and the State appeals.

Cox was indicted during the October 1974 term of the Circuit Court of Monroe County for manslaughter arising out of the death of James Arthur Crawford, Jr. He was tried at a subsequent term on the charge and obtained a directed verdict of acquittal at the conclusion of the state’s case. The trial court expressed its opinion in sustaining the motion for a directed verdict as follows:

. I am convinced from listening to the testimony in this case of these facts: That the child was undoubtedly battered. The proof, from the state’s viewpoint, shows by this defendant. However, the beating of this child in or upon his back or other unrelated area of the body to the head, the proof showing the death resulted from trauma to the head and that the child fell while running, coupled with the fact that the child obviously had some physical difficulty in walking good, (sic) much less running. Plus the fact that the state’s own prosecuting witness, Ruthie Crawford, on cross examination, stated that she didn’t know that this defendant was hurting this child until he fell.
It’s inconceivable to me that this defendant could be found guilty of the crime of manslaughter, the killing of a child.
Now, I’m not foreclosing the possibility of him being guilty of .battery of this child; but the degree of proof necessary to make out the homicide is simply missing from the case.

Whereupon the motion was sustained. A motion to nolle prosequi was overruled and the defendant was bound over to await the action of the next grand jury.

Cox was subsequently indicated for felonious child battery. He filed a motion to quash the indictment in which he alleged that he had been indicted and duly acquitted of the same offense “and under the same facts and circumstances under which he is charged in the indictment under which he now stands accused.” The motion avers that the acquittal had not been reversed by any court of higher jurisdiction and that the state and federal constitutions prohibit the placing of a man’s life and liberty twice in jeopardy for the same offense.

After consideration, this motion was sustained, the trial court stating in its opinion:

From reading the transcript of the testimony in the manslaughter ease, it appears to the Court that the testimony generally on the part of the State was that this defendant was whipping the child with a small garden hose, and that the child got away from the defendant, and in an effort not to be whipped any further, either ran into something or fell down on the floor, and that this falling down and hitting its head on either the wall or the floor or something of that nature, it was killed.
The testimony on the part of the State indicates that it was attempting to prove that the defendant was whipping the child and that this whipping or beating of the child was, if not the cause of the death of the child, at least causally related to the death of the child to the extent that the defendant was guilty of manslaughter.
In this particular matter, it appears to the Court that as far as the State’s case was concerned, the beating or battering of the child was a part of its manslaughter case when the proof was presented, and dwelt upon all through the State’s case, that the beating of the child was a part of the manslaughter case. In other words, that seems to be how the State claimed that the child was slain, as it was alleged to have been in the indictment in the manslaughter case.
Ordinarily, this would not be a lesser included offense of the manslaughter. It does appear to the Court that it was the basis for the case that the State was attempting to put on to substantiate the charge of manslaughter.

The cases of Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), and Laughter v. State, 241 So.2d 641 (Miss.1970), were persuasive to the trial court in reaching its conclusion.

In Ashe, supra, the Court held that collateral estoppel is embodied in the Fifth Amendment to the United States Constitution and has application to the various states through the Fourteenth Amendment. In it the Court had under consideration a question of the identity of the appellant who was alleged to have been one of several men who robbed several others in a poker game. Ashe was acquitted at his first trial because the evidence identifying him as one of the robbers was weak. The trial judge instructed the jury that if it found the petitioner was one of the participants in the robbery, the theft of “any money” from one of the players in the game would sustain a conviction. He also instructed that if the petitioner was one of the robbers, he was guilty under the law even if he had not personally robbed one of the players. The jury found the petitioner “not guilty due to insufficient evidence.” The issue before it was the identity of Ashe as a participant in the robbery.

Ashe was brought to trial again for the robbery of another player in the game. He filed a motion to dismiss based on his previous acquittal which was overruled and Ashe was convicted. The case on appeal ultimately reached the United States Supreme Court. It held:

. The single rationally conceivable issue in dispute before the jury was whether the petitioner had been one of the robbers. And the jury by its verdict found that he had not. The federal rule of law, therefore, would make a second prosecution for the robbery of Roberts wholly impermissible. 397 U.S. at 445, 90 S.Ct. at 1195, 25 L.Ed.2d at 476
******
The question is not whether Missouri could validly charge the petitioner with six separate offenses for the robbery of the six poker players. It is not whether he could have received a total of six punishments if he had been convicted in a single trial of robbing the six victims. It is simply whether, after a jury determined by its verdict that the petitioner was not one of the robbers, the State could constitutionally hale him before a new jury to litigate that issue again. (Emphasis added.) 397 U.S. at 446, 90 S.Ct. at 1195, 25 L.Ed.2d at 477

The Court concluded the state was es-topped to again prosecute Ashe before a different jury. It held “collateral estoppel” to mean that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. See Sanders v. State, 242 So.2d 412 (Miss.1970), wherein we adopted the definition though estoppel was not applied because of the circumstances of that case. However, in State v. Smith, 278 So.2d 411 (Miss.1973), the doctrine was applied, this Court concluding that since Smith had not in any manner participated in a murder during the course of an armed robbery, as found by a jury verdict, the state was thereafter collaterally estopped to prosecute him for the robbery.

In Laughter, supra, a double jeopardy case, we held that different offenses arising from one transaction were subject to double jeopardy provisions of the constitution. We were careful to state the one transaction principle was sound when properly limited. In holding possession a lesser included or constituent offense of the sale of marijuana and that it would be unfair to punish the appellant for both offenses, we used the following language:

. We hold that since the facts in this case clearly establish that the possession and sale was one transaction, the appellant could be properly charged with the possession and sale of marijuana, but he could be convicted of only one charge. 241 So.2d at 644

Because the state had elected to first try Laughter for possession of marijuana, we were of the opinion this conviction prohibited his prosecution for its sale arising out of the very same transaction because it would have been a transgression upon the constitutional prohibition of being twice placed in jeopardy.

These cases, persuasive to the trial judge, do not support his decision in our opinion. The single rational issue in dispute in Ashe and Smith, supra (crime participant identification), does not project itself by analogy into this case because the issue in the manslaughter trial, and necessary to a conviction, was the establishment of the offense, death as the result of a criminal agency, whereas in Ashe and Smith, supra, the offense was established, there remaining only the identification of the participants. The finding on the motion for a directed verdict that the child’s death did not result from the beating was an acquittal on that offense sufficient to bar future accusation since it was the equivalent of a jury verdict. State v. Thornhill, 251 Miss. 718, 171 So.2d 308 (1965).

Neither does the same transaction rationale of Laughter merge into the pattern of this case. While the battery of the child was essential to conviction under the manslaughter charge, and inevitably will be under the battery indictment, nevertheless, we do not think that felonious battery is a constituent or necessarily lesser included offense of a manslaughter charge. The crimes, manslaughter and felonious battery, are separate and distinct, each having essential elements not requisite to the other. An essential of manslaughter is a homicide without malice. Essentials of felonious battery are deliberate intention and tender years of the victim with mutilation, disfigurement or destruction of any part of the body of a child, but not necessarily including death — the very basis of manslaughter.

The principles of Ashe and Laughter being inapplicable in our opinion to the present case, the definition of “same offense” of Article 3, Section 22, Mississippi Constitution (1890), must be examined. In Burton v. State, 226 Miss. 31, 79 So.2d 242 (1955), though considering multiple deaths from a single accident, this Court held in discussing the same evidence rule as it relates to the same offense as follows:

There is a distinction between an offense and the unlawful act out of which it arises. And the test is not whether the accused has been tried for the same act, but whether he had been put in jeopardy for the same offense. . . . 226 Miss, at 40, 79 So.2d at 246-247

And approved the following language of an Ohio case:

“ . . . It is not enough that some single element of the offense charged may have a single element of some other offense as to, which the defendant had theretofore been in jeopardy, but the constitutional provision requires that it shall be the ‘same offense’. The usual test accepted by the text-writers on criminal law and procedure is this: If the defendant upon the first charge could have been convicted of the offense in the second, then he has been in jeopardy.” 226 Miss, at 41, 79 So.2d at 247

See also Price v. State, 104 Miss. 288, 61 So. 314 (1913); Moore v. State, 59 Miss. 25 (1881) and Rocco v. State, 37 Miss. 357 (1859).

By the second indictment Cox was not subjected to being tried twice for the same offense by the above test.. The indictment against Cox in the manslaughter case charged him with the felonious slaying of James Arthur Crawford, Jr. It could not have been the basis for a conviction of the felonious battery of a child because an essential of felonious battery is intention and mutilation, neither of which is necessary to the first charge.

We are of the opinion the motion to quash the felonious battery indictment was erroneously sustained and that prosecution under it would not violate double jeopardy standards of either the state or United States Constitution.

REVERSED AND REMANDED.

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


author: LEE, Justice, for the Court:

text:
    Jack WIDEMAN v. STATE of Mississippi.
    No. 49342.
    Supreme Court of Mississippi.
    Nov. 16, 1976.
    Bernard Gautier, Charles Parlin, Pasca-goula, for appellant.
    A. F. Summer, Atty. Gen. by Vera Madel Speakes, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.
   LEE, Justice, for the Court:

Jack Wideman was convicted of raping his twelve-year-old stepchild, Rosemary Hamilton, and was sentenced to serve a term of fifteen (15) years in the state penitentiary by the Circuit Court of Jackson County. On this appeal, he assigns the following errors committed by the trial court:

(1) The verdict of the jury is against the overwhelming weight of the evidence.

(2) The trial court erred in sustaining the State’s objection to appellant’s attempt to impeach the prosecutrix by showing that she falsely made similar accusations in the State of Alabama.

(3) The trial court erred in overruling appellant’s motion for a mistrial after the State called appellant’s wife to the witness stand and attempted to introduce testimony by her.

(4) The trial court erred in overruling appellant’s motion for a mistrial because of prejudicial remarks made by the prosecuting attorney.

About 1:45 a.m. on the night of July 31, 1975, appellant went to the home of his brother where his wife and Rosemary were staying, and told them he wanted Rosemary to go with him to the police station for the purpose of explaining an accusation made by a neighbor that the child had stolen ten dollars ($10.00) from the neighbor. An argument ensued, and the brother made the entire family leave his home. Appellant, his wife and Rosemary left in appellant’s car. After a while, the car stopped, appellant said it was out of gas, he removed an empty gas can from the car, and he and Rosemary started off on foot seeking gas. Mrs. Wideman remained in the vehicle. Rosemary testified that appellant took her to the home of his friend, Ray Solorzano, that he threatened her, that she was afraid of him and cried, that he forced her to have sexual relations with him, and that he then forced her to have sexual relations with Solorzano. In the meantime, appellant’s wife started the car and drove around until she found appellant and Rosemary about 4:00 a.m. They were walking on the street near Solorzano’s home.

Rosemary told her mother what had happened; she was taken to the police station, and then to the hospital where Dr. Allen examined her. He found mobile sperm in her vagina, indicating that she had intercourse within three hours previous to the examination. Dr. Allen also found that she had bruises on her left breast and a vaginal irritation. It was his opinion that Rosemary had engaged in sexual intercourse, but he was unable to determine whether with one or more persons.

Appellant denied that they had gone to the home of Solorzano, and denied that he had sexual relations with her. He stated that he was drunk, that he passed out on the front porch of a house, and that about two hours later Rosemary awakened him, appearing to be upset. Officer East testified that he saw appellant and Rosemary walking down the street in the vicinity of Solorzano’s house, that he saw appellant again about 4:00 a.m. and that appellant was drinking, but was not drunk.

I.

Was the verdict of the jury against the overwhelming weight of the evidence?

Appellant principally urges on this assignment that the prosecutrix did not know the meaning of “intercourse” and that there was no penetration of her private parts. Rosemary testified that appellant made her take off her clothes, then he took off his clothes and “after he got done” he threatened her; that he forced her to have intercourse with him and that she understood what the word “intercourse” meant. She testified that appellant raped her and that Solorzano raped her.

The testimony of the prosecutrix was corroborated in the following respects:

(1) Dr. Allen testified that he found mobile spermatozoa in her vaginal tract, which indicated that she had sexual intercourse within the previous three hours.

(2) The doctor found bruises on her left breast and irritation of her vagina.

(3) Appellant and Rosemary left the car and went toward the Oasis Bar and toward Solorzano’s house.

(4) Officer East saw appellant and Rosemary in the vicinity of Solorzano’s house after they had left the car.

In Lang v. State, 230 Miss. 147, 87 So.2d 265 (1956), the prosecutrix, a twenty-year-old married woman, described the act as “after he got through” and the Court said: “It is not indispensable that the penetration be proved by the testimony of the prosecu-trix; it may be established by circumstantial evidence.” 230 Miss, at 158, 87 So.2d at 268.

In Lee v. State, 242 Miss. 97, 134 So.2d 145 (1961), the Court said:

“The appellant was indicted under Section 2358, Miss. Code of 1942, Rec., for forcibly ravishing the prosecutrix; and this Court has held in numerous cases that in a prosecution for rape under that statute the victim’s evidence is sufficient to sustain a conviction without corroboration, if it is consistent with the surrounding circumstances and conditions shown by the evidence.” 242 Miss, at 106, 134 So.2d at 149.

This Court affirmed a conviction of rape in Thornton v. State, 313 So.2d 16 (Miss.1975), and stated:

“The facts being in dispute, it was the duty and responsibility of the jury to decide which witnesses to believe, and how much of each witness’s testimony to believe, and what weight should be given to each witness’s testimony.

In Evans v. State, 159 Miss. 561, 132 So. 563 (1931), this Court said:

‘We invite the attention of the bar to the fact that we do not reverse criminal cases where there is a straight issue of fact, or a conflict in the facts; juries are impaneled for the very purpose of passing upon such questions of disputed fact, and we do not intend to invade the province and prerogative of the jury.’ 159 Miss, at 566, 132 So. at 564. [Emphasis added].” 313 So.2d at 18.

We are of the opinion that the evidence constitutes a question for the jury to determine whether or not the appellant raped the child, and that Assignment No. 1 is not well taken.

II.

Did the trial court err is sustaining the State’s objection to appellant’s attempt to impeach the prosecutrix by showing that she falsely made a similar accusation in the State of Alabama?

On cross-examination of the prosecutrix, appellant attempted to question her concerning a false accusation of sexual assault she had made against a man in Alabama approximately two years before. Objections to the testimony were sustained by the court, but no offer of the testimony was made by appellant in the absence of the jury, and the record does not indicate what she would have testified to.

Appellant called Mrs. Wideman (mother of the child and wife of the appellant) to the witness stand and thoroughly questioned her about the incident in Alabama, and she testified fully about the matter. Also, in response to questions by appellant, Mrs. Wideman testified about alleged sexual assaults against Rosemary while they lived in the State of Louisiana.

Other states have held that such testimony is competent for the purpose of impeaching the prosecutrix [State v. Izzi, 348 A.2d 371 (R.I.1975); People v. Hurlbert, 166 Cal.App.2d 334, 333 P.2d 82 (1958)], but we find no reported case in Mississippi on the question. Although the point was not preserved because of the failure of appellant to make an offer of proof [Priest v. State, 275 So.2d 79 (Miss.1973)], we are of the opinion that, if the trial court committed error in refusing to admit the testimony, which is not necessary for us to decide in this case, it was harmless error because of the testimony of Mrs. Wideman about the incident.

III.

Did the trial court err in overruling appellant’s motion for a mistrial after the State called appellant’s wife to the stand and attempted to introduce her testimony?

The State called Mrs. Marcine Wideman, wife of the appellant, to the stand, asked her name, and asked if she was the mother of Rosemary Hamilton, the prosecutrix. Objection was made by appellant and sustained by the court in the following language:

“BY THE COURT: Alright, [sic] the objection will be sustained. The law is that husbands cannot give testimony against wives, and wives on husbands, so the objection will be sustained.”

The district attorney then made the following statement:

“BY MR. COLINGO: Very well. Thank you, ma’am, I’m sorry you can’t testify.”

Appellant contends that prejudicial error was committed in (1) calling the defendant’s wife as a witness, and (2) making comments to the effect that she could not testify.

In Outlaw v. State, 208 Miss. 13, 43 So.2d 661 (1949), the district attorney made the following statements to the appellant before questioning him:

“The district attorney well knew that the wife was not a competent witness for he prefaced his questions to appellant with the statement, ‘You know that in a case like this your wife can’t come in as a witness’, to which appellant’s counsel objected, but the district attorney immediately asked appellant ‘Would you have any objection to your wife being brought in here to testify’, to which objection was again made, and the trial court compelled appellant to answer the question. This was further than the court went in any of the cases hereinafter mentioned.” 208 Miss, at 18, 43 So.2d at 663-664.

This Court held that such conduct and statements constituted reversible error.

In Bell v. State, 244 Miss. 867, 147 So.2d 624 (1962), the Court held that the prosecutor’s conduct in Outlaw was “in a taunting and reproachful manner, which can be construed as a criticism of the defendant for failure to put his wife on the stand or to let her testify.” [244 Miss, at 870, 147 So.2d at 625] and stated the following:

“In the early case of Finklea v. State, 94 Miss. 777, 48 So. 1, the prosecuting attorney called the defendant’s wife to the stand as a witness for the State, and, in the presence of the jury, caused the defendant to object to her as being incompetent to testify. The objection was promptly sustained by the trial court. On appeal this Court held that the prosecutor’s act was improper, but it declined to reverse the case for that error. In Carter v. State, 99 Miss. 435, 54 So. 734, the State’s counsel asked the defendant, on cross-examination, if his wife would testify and whether he would object if the State should call her as a witness. The defendant’s objection was promptly sustained. This Court, while saying that these questions were highly improper, declined to denominate this occurrence as reversible error. Again, in Bryant v. State, 179 Miss. 739, 176 So. 590, which was a bigamy prosecution, the introduction of the first wife, who was sworn but withdrawn before she testified against the defendant, was held to be harmless error.” 244 Miss, at 869,147 So.2d at 625.

In Merritt v. State, Miss., 339 So.2d 1366, handed down on November 2, 1976, this Court held that the wife is a competent witness in the prosecution of her husband for crimes involving personal violence against their child. It is not necessary to decide here whether chat principle extends to a stepchild of the husband for the reason that after the State rested, Mrs. Wideman was called to the stand as a witness for the appellant, and she testified at length on direct and cross-examination. The record does not reflect that appellant felt compelled to call his wife on account of the conduct of the prosecuting attorney. Thus, if error was committed, it became harmless when the wife testified on behalf of appellant.

IV.

Did the trial court err in overruling appellant’s motion for a mistrial after alleged prejudicial statements were made in the prosecuting attorney’s argument?

During his argument the prosecuting attorney said:

“. . .1 don’t think, that as long as I have prosecuted, I have seen a situation that has made me more sick to my stomach than what I have seen here today. Now I am going to tell you why. I’ve got four little daughters, two of which are the same age as this little lady over here, and I think about them, and I love them, and I want to protect them.”

Appellant objected, the court sustained the objection and directed the jury to disregard the remarks. The prosecuting attorney then said:

“Now the only thing that I regret, as a prosecutor, is that the law doesn’t provide a noose in which to put this man’s neck in.
* * * * * *
You let him out and he’s going to do it again . . .

Objections were made again by appellant to those statements, and they were sustained by the court.

In Holifield v. State, 275 So.2d 851 (Miss.1973), the prosecuting attorney stated in his closing argument that the law enforcement officers were “ ‘trying to protect you, next time it might be your house that is burglarized.’ ” 275 So.2d at 856. The Court held that the remark, while improper and should not have been made, was not reversible error and that under the circumstances, the action of the trial court in sustaining defense counsel’s objection to the remark was sufficient to prevent reversible error.

In Herrin v. State, 201 Miss. 595, 29 So.2d 452 (1947), the district attorney stated in his closing argument that the jury could acquit the defendant of the charge and let him go free, and if the jury did so, he may kill another person, and the next time it might not be a colored person. Objection was sustained, but the motion for mistrial was overruled. The Court held that while the remarks of the district attorney constituted an appeal to race prejudice, and should not have been made, the action of the trial court in promptly sustaining the objection was sufficient to prevent overruling the motion for a mistrial from constituting reversible error under the facts and circumstances of the ease.

The Court said in Catholic Diocese of Natchez-Jackson v. Jaquith, 224 So.2d 216 (Miss.1969):

“The appellant next contends that the attorney for the appellees indulged in the ‘golden rule’ argument. Since the court sustained the objection thereto by the appellant, we are of the opinion that no prejudicial error resulted therefrom and that the appellant’s rights were adequately protected.” 224 So.2d at 224.

The statements of the prosecuting attorney were improper and should not have been made. However, while we again admonish prosecuting attorneys of the dangers of reversal in going outside the record in their arguments, we do not think that the remarks in this case, under all the facts and circumstances, constitute reversible error.

For the reasons stated, the case is affirmed.

AFFIRMED.

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


author: BROOM, Justice, for the Court: ROBERTSON, Justice

text:
    Billy Dale HILL v. STATE of Mississippi.
    No. 48985.
    Supreme Court of Mississippi.
    Nov. 16, 1976.
    As Modified On Denial of Rehearing Dec. 7, 1976.

      Lawrence Chandler, Calhoun City, Ottis B. Crocker, Jr., Bruce, James L. Robertson, Greenville, for appellant.
    A. F. Summer, Atty. Gen. by Ben H. Walley, Asst. Atty. Gen., Jackson, for ap-pellee.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   BROOM, Justice, for the Court:

Capital murder under Mississippi Code Annotated section 97-3-19(2)(e) (Supp.1976) was the offense for which Hill was convicted in the Circuit Court of Calhoun County. He appeals from the conviction and death sentence imposed upon him. The indictment charged that on September 5,1974, he murdered Mrs. Minnie Hamilton while engaged in the commission of the crime of rape. Chief issues relate to: (1) how the trial court is to decide if a defendant is competent to stand trial, (2) how to determine criminal responsibility at the trial on the merits when the defendant pleads insanity, and (3) jury instructions. Upon the record before us, the case must be reversed.

The trial court having determined that Hill was an indigent, on September 25, 1974, appointed Ottis B. Crocker, Jr., of Bruce, Mississippi, and Lawrence Chandler of Calhoun City, Mississippi, to defend Hill. Through his court-appointed attorneys, the defendant filed numerous pre-trial motions, including a motion that he be transferred to the Mississippi State Hospital at Whitfield for psychiatric examination. After a hearing, the motion was overruled and a full trial was had on October 10 and 11, 1974. The jury returned a verdict of “Guilty as charged,” and the court sentenced the defendant to death in the gas chamber.

Before the trial of the defendant, because the state did not resist the motion “that the Court order him transferred to the State Mental Hospital at Whitfield, Mississippi where he may be examined by psychiatrists on the question of his sanity,” the circuit court on September 27,1974, found that the motion was well taken and should be sustained.

However, the court, instead of ordering the defendant to be transferred to the Mississippi State Mental Hospital at Whitfield for psychiatric examination, as requested in the motion, merely ordered Hill to be examined by Dr. Charles H. Hubbert, a psychiatrist employed by Region II Mental Health Clinic in Oxford, Mississippi. On September 28, 1974, Dr. Hubbert orally examined the defendant for one hour and fifteen minutes. As to tests administered, Dr. Hub-bert testified:

I did not do extensive psychological testing which I don’t do as a rule anyway. However, I did do one little drawing test which the psychologists use in their testing and that accompanies my report.

Dr. Hubbert did not know the defendant nor had he ever examined or observed him except on this one occasion. He did not talk to any members of the defendant’s family, nor did he get any previous history of the defendant’s behavior, except what he elicited from the defendant himself in this one hour and fifteen minute interview.

On October 2, 1974, the court heard testimony of Ottis B. Crocker, Jr., court-appointed attorney, as to his complete inability to communicate with the defendant and his opinion that the defendant was not capable of helping his attorneys prepare a rational defense to the charge against him.

Tommy Hill, Jr., brother of the defendant, and Dorothy Conner, aunt of the defendant, testified as to the defendant’s aberrant behavior and conduct.

Sheriff Richard E. Mooneyham, Mrs. Edna Byars, jailor at Pittsboro where defendant was confined, and Mrs. June Moo-neyham, wife of the sheriff of Calhoun County, who took down the confession of the defendant, all testified that, in their opinion, the defendant knew the difference between right and wrong.

Dr. Hubbert’s written report, which consisted of four single-spaced typed pages, was filed and considered at this hearing. Dr. Hubbert, in his report, stated that in his opinion the defendant knew the difference between right and wrong. Dr. Hubbert closed his written report with this conclusion and recommendation:

“Discussion:' Based on my interview with the defendant, I find no psychiatric illness. This conclusion does not imply that the defendant has not had difficulties with his behavior. Concerning the defendant’s criminal responsibility, I have concluded that he was able to know what he was doing at the time of the crime, and he was able to distinguish between right and wrong with reference to that act. To elaborate further, he was able to know what he was doing at that time and appreciated his behavior then. The defendant is capable of conferring with his attorneys, and he is competent to stand trial.
“The preceding paragraph of statements, of course, constitute my professional opinion of the defendant based on my psychiatric interview and observations. However, I recommend that other opinion be rendered concerning the defendant’s criminal responsibility and that psychological testing and possibly an electroencephalogram be done as a part of this other opinion. Ideally, this could be accomplished through one of the state hospitals.” (Emphasis added).

In spite of Dr. Hubbert’s recommendation that the defendant undergo further psychiatric examination preferably at a state hospital, the trial court overruled the renewed motion to transfer the defendant to Mississippi State Hospital at Whitfield.

Assignments of error 7 and 8 were:

“The Court erred in refusing to permit Defendant to be examined by competent psychiatrists and psychologist in the Mississippi State Hospital in Whitfield, Mississippi to determine whether he was competent to stand trial.”
“The trial court erred in refusing to permit examination of the Defendant at the Mississippi State Hospital at Whitfield, to determine whether he was criminally responsible for his actions on September 4-5, 1974.”

The overruling of the motion to transfer the defendant to Mississippi State Hospital at Whitfield for psychiatric and psychological examination constituted reversible error. Upon the record as it now appears, before the defendant is again tried, he should either be (1) sent to Mississippi State Hospital at Whitfield for a careful and thorough examination, or (2) otherwise afforded appropriate and adequate determination of his sanity, and mental competency to conduct a rational defense pursuant to Mississippi Code Annotated § 99-13-11 (1972). Stevenson v. State, 325 So.2d 113, 117 (Miss.1975); Robinson v. State, 223 Miss. 70, 77 So.2d 265 (1955); McGinnis v. State, 241 Miss. 883, 133 So.2d 399 (1961). While considerable discretion is to be vested in trial judges applying § 99-13-11, in the present case the examination by the psychiatrist was inadequate as demonstrated by the fact that the examining psychiatrist himself testified that further examination of the defendant was needed.

This 18-year-old defendant was charged with the commission of a horrible and heinous crime, the crime of murdering an 87-year-old woman by stabbing her five times while committing the crime of rape. Her home had been broken into and her completely nude body was found early the next day in a pool of blood. The defendant could suffer death for this crime; yet the only psychological and psychiatric examination that was made of this defendant was an hour and fifteen minute interview by a psychiatrist who did not know the defendant and had never examined or observed him before.

As has been done many times in prior criminal cases where the issue of the defendant’s sanity is raised, we are urged to abandon the M’Naghten Rule as to the determination of criminal responsibility. In place of the M’Naghten Rule, we are asked to accept and adopt the rule set forth in 4.01 of the American Law Institute’s Model Penal Code (1962). That section would relieve a defendant of responsibility for criminal conduct:

. if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.

Such a rule in effect would provide for the acquittal of those who commit criminal acts and assert that they did such act or acts because of so-called uncontrollable urges or irresistible impulses. Though the M’Naghten Rule may not be a perfect means to test criminal responsibility, as this Court (including this writer) has said before, it is the safest of the rules proposed. M’Naghten better protects society’s needs than the American Law Institute’s proposed rule, supra, which the court has examined in earlier cases and found to be unsatisfactory. In making our decision we have carefully read and considered the views expressed in United States v. Freeman, 357 F.2d 606 (2d Cir. 1966), and do not consider it persuasive. Language in that opinion which says of M’Naghten that “the expert is thereby compelled to test guilt or innocence by a concept which bears little relationship to reality” is simply not an expression of logic. Though M’Naghten may have had “Victorian origins” as said in Freeman, supra, we reject the thesis that it is not “grounded in reason” though admittedly the subjective aspects of sanity or insanity present difficult problems.

In Assignment of Error No. 26, the defendant contends that the trial court erred when it refused to grant these instructions:

INSTRUCTION FOR DEFENDANT NO. 11
The court instructs the jury for the defendant that if you acquit the defendant on the ground of insanity and you should find that the defendant has not since been restored to reason and that he is dangerous to the community, then the following will be the form of your verdict:
“We, the jury, find the defendant not guilty on the grounds of insanity, and certify that he is dangerous and has not been restored to reason.”
INSTRUCTION FOR DEFENDANT NO. 12
The court instructs the jury for the defendant that if you find the defendant not guilty you may return one of the following verdicts:
“We, the jury, find the defendant not guilty,” or,
“We, the jury, find the defendant not guilty by reason of insanity, and we find that the defendant has since been restored to his reason,” or,
“We, the jury, find the defendant not guilty, by reason of insanity, and we find that he has not been restored to his reason.” Or,
“We, the jury, find the defendant not guilty, by reason of insanity, and we find that he has not been restored to his reason and is dangerous.”

Mississippi Code Annotated section 99-13-7 (1972) is the statutory authority for the giving of these instructions. That section provides:

When any person shall be indicted for an offense and acquitted on the ground of insanity the jury rendering the verdict shall state therein such ground and whether the accused have since been restored to his reason, and whether he be dangerous to the community. And if the jury certify that such person is still insane and dangerous the judge shall order him to be conveyed to and confined in one of the state asylums for the insane.

Upon a retrial of this case, instructions embodying these statutory directions should be granted.

Defendant also contends that Mississippi’s capital murder statutes [Mississippi Code Annotated sections 97-3-19, 97-3-21 and 99-17-20 (Supp.1976)] are unconstitutional. Defendant’s contentions were specifically answered and decided adversely to the contentions of defendant in Jackson v. State, 337 So.2d 1242, Miss., in an opinion handed down October 5, 1976. We adhere to our opinion in Jackson.

We have carefully considered the other assignments of error and find them to be without merit or not likely to recur on a retrial of this case.

The judgment of the trial court is reversed and this cause remanded for a new trial.

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

REVERSED AND REMANDED.

GILLESPIE, C. J., and SMITH, SUGG, WALKER and LEE, JJ., concur.

PATTERSON and INZER, P. JJ., and ROBERTSON, J., specially concur.

ROBERTSON, Justice

(specially concurring):

I concur in this opinion in every respect, except in our continued adherence to the archaic, outmoded and illogically limited M’Naghten rule. I feel that this is the case and this is the time for this Court to abandon the M’Naghten rule (that a defendant is criminally responsible if he knew the difference between right and wrong at the time he committed the offense) and adopt the more modern and enlightened rule set forth in Section 4.01 of the American Law Institute’s Model Penal Code (1962). The United States Court of Appeals for the Second Circuit, in adopting this rule, said:

“Nine long years of research, exploration and consideration culminated in the definitive version of Section 4.01, which was finally adopted by the Institute in 1962.
“Section 4.01 provides that ‘A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.’ [footnote omitted]. For reasons which will be more fully set forth, we believe this test to be the soundest yet formulated and we accordingly adopt it as the standard of criminal responsibility in the Courts of this Circuit.” United States v. Freeman, 357 F.2d 606, 622 (2d Cir. 1966).

I was impressed with this reasoning of the Court of Appeals in United States v. Freeman, supra:

“Because M’Naghten focuses only on the cognitive aspect of the personality, i. e., the ability to know right from wrong, we are told by eminent medical scholars that it does not permit the jury to identify those who can distinguish between good and evil but who cannot control their behavior. The result is that instead of being treated at appropriate mental institutions [footnote omitted] for a sufficiently long period to bring about a cure or sufficient improvement so that the accused may return with relative safety to himself and the community, he is ordinarily sentenced to a prison term as if criminally responsible and then released as a potential recidivist with society at his mercy. To the extent that these individuals continue to be released from prison because of the narrow scope of M’Naghten, that test poses a serious danger to society’s welfare, [footnote omitted].
“Similarly, M’Naghten’s single track emphasis on the cognitive aspect of the personality recognizes no degrees of incapacity. Either the defendant knows right from wrong or he does not and that is the only choice the jury is given. But such a test is grossly unrealistic; our mental institutions, as any qualified psychiatrist will attest, are filled with people who to some extent can differentiate between right and wrong, but lack the capacity to control their acts to a substantial degree. As the commentary to the American Law Institute’s Model Penal Code observes, ‘The law must recognize that when there is no black and white it must content itself with different shades of gray.’ [footnote omitted].
“A further fatal defect of the M’Naghten Rules stems from the unrealistically tight shackles which they place upon expert psychiatric testimony. When the law limits a testifying psychiatrist to stating his opinion whether the accused is capable of knowing right from wrong, the expert is thereby compelled to test guilt or innocence by a concept which bears little relationship to reality. He is required thus to consider one aspect of the mind as a ‘logic-tight compartment in which the delusion holds sway leaving the balance of the mind intact. * * * ’” [footnote omitted]. 357 F.2d at 618-619.

The court continues:

“The tremendous growth of psychiatric knowledge since the Victorian origins of M’Naghten and even the near-universal disdain in which it is held by present-day psychiatrists are not by themselves sufficient reasons for abandoning the test. At bottom, the determination whether a man is or is not held responsible for his conduct is not a medical but a legal, social or moral judgment. Ideally, psychiatrists — much like experts in other fields— should provide grist for the legal mill, should furnish the raw data upon which the legal judgment is based. It is the psychiatrist who informs as to the mental state of the accused — his characteristics, his potentialities, his capabilities. But once this information is disclosed, it is society as a whole, represented by judge or jury, which decides whether a man with the characteristics described should or should not be held accountable for his acts. In so deciding, it cannot be presumed that juries will check their common sense at the courtroom door. As Professor Wechsler has rightly commented, ‘It’s not to be expected that juries will lightly accept the proposition that one who seemingly knew in a true sense did not know. One would expect jury skepticism and the system is the healthier for that jury skepticism.’ [footnote omitted].
“The true vice of M’Naghten is not therefore, that psychiatrists will feel constricted in artificially structuring their testimony but rather that the ultimate deciders — the judge or the jury — will be deprived of information vital to their final judgment. For whatever the social climate of Victorian England, today’s complex and sophisticated society will not be satisfied with simplistic decisions, based solely upon a man’s ability to ‘know’ right from wrong. It is in this respect that the vast strides made in public awareness and acceptance of psychiatry and psychiatric methods may even be more significant than the scientific developments which gave rise to them. Few areas of modern American culture — from the personnel offices of our giant corporations to the pages of our mass-circulation magazines — have been untouched by the psychiatric revolution. In this setting, a test which depends vitally on notions already discredited when M’Naghten was adopted can no longer be blandly accepted as representing the ‘moral sense of the community.’ To continue to apply such medically discarded concepts would be to follow a negative approach which is the result of a holdover of long outmoded attitudes rather than a policy decision grounded in reason or science.” 357 F.2d at 619-20. (Emphasis added).

The Court continued:

“The genius of the common law has been its responsiveness to changing times, its ability to reflect developing moral and social values. Drawing upon the past, the law must serve — and traditionally has served — the needs of the present. In the past century, psychiatry has evolved from tentative, hesitant gropings in the dark of human ignorance to a recognized and important branch of modern medicine. The outrage of a frightened Queen has for too long caused us to forego the expert guidance that modern psychiatry is able to provide.” 357 F.2d at 624-25.

The “mental defect” concept set forth in Section 4.01 supra, has been a part of the statutory law of Mississippi for many years (since 1920), in everything but name only.

Mississippi Code Annotated section 99-13-9 (1972) provides:

“When any person shall be indicted for an offense, and acquitted on the ground of feeble-mindedness, the jury rendering the verdict shall state therein such ground, and whether the accused constitutes a danger to life or property, and to the peace and safety of the community; and if the jury certify that such feeble-minded person is dangerous to the peace and safety of the community, or to himself, the court shall forthwith give notice of the ease to the chancellor, or the clerk of the chancery court, whose duty it shall be to proceed with such person according to the law provided in the case of feeble-minded persons, the feeble-minded person himself being remanded to custody to await the action of the chancery court.” (Emphasis added).

The term “feeble-mindedness” used in Sec. 99-13-9 and other statutes under Chapter 13, styled Insanity Proceedings, means, in modern parlance, “mental retardation”. So Sec. 99-13-9 could be read as authorizing acquittal on the ground of mental retardation. Now re-read the standard set forth in section 4.01:

“A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.” (Emphasis added).

I think that the jury should be informed of any mental disease or mental defect that a psychiatrist or psychologist has found in the defendant, even though the testimony might fall short of proving the defendant insane, or that he didn’t know the difference between right and wrong.

The courts of New Hampshire, Kentucky, Wisconsin, Massachusetts, and Idaho have abandoned the M’Naghten rule. Arizona, Minnesota and Hawaii have severely criticized it.

The M’Naghten rule was abolished by statute in Illinois, Maryland, Montana, Missouri, New York, and Vermont.

The Federal judiciary has been unanimous in its rejection of the M’Naghten rule.

The time has come for Mississippi to join her sister states in abandoning this archaic, outmoded and unreasonably limited formula for testing criminal responsibility.

PATTERSON and INZER, P. JJ., concur in this opinion.


text:
    Leon B. DeGEORGE et ux. v. Clarence J. HELD, Sr.
    No. 48753.
    Supreme Court of Mississippi.
    Dec. 14, 1976.
    Rushing & Guice, Jacob D. Guice, Biloxi, for appellants.
    Joseph P. Compretta, Nicholas M. Haas, Bay St. Louis, for appellee.
    Before INZER, P. J., SUGG and LEE, JJ., and WALKER, Commissioner.
   J. W. WALKER, Commissioner for the Court:

Clarence J. Held, Sr. filed a bill of complaint to confirm tax title in the Chancery Court of Hancock County, Mississippi, against Leon B. DeGeorge and wife, Juanita Williams DeGeorge. The land involved was sold on September 21, 1970, by the Tax Collector of Hancock County for 1969 taxes while assessed to Leon B. DeGeorge and wife and on June 17, 1974, the Chancery Clerk of Hancock County executed his conveyance to Clarence J. Held, Sr.

The bill of complaint alleged a valid tax sale and that “. . . during the time allowed by law for the redemption of said land from said sale, no one redeemed or attempted to redeem said property from said sale . .

Leon B. DeGeorge and wife filed their answer to the bill of complaint and denied that there was a valid tax sale of said property and charged, . that a lawful tender for the payment of the said taxes was made prior to the date of expiration thereof, and defendants timely tendered funds to redeem said tax sale.” The said answer was thereafter amended and again charged: . . that a lawful tender for the payment of said taxes was made prior to the date of expiration thereof.”, and that the “defendants timely tendered funds to redeem said tax sale, and as evidence of their tender of such funds to redeem the property, attached a copy of a check dated August 1, 1972, certified to on the 21st day of August, 1972, marked Exhibit “A”, which was mailed long before the expiration date to the chancery clerk and the defendants (appellants) tendered the amount of taxes, plus interest, and any other taxes on or lawful charges the court found to be due the complainant pursuant to said purported tax purchase. Along with said amended answer the DeG-eorges filed their cross-bill.

A motion to strike the amended answer and cross-bill was filed by the complainant alleging that there was no deraignment of title in the cross-bill and that the amended answer and cross-bill contained no legal defense for the reason that there was in fact no redemption and that the allegations and exhibits did not show that said attempted redemption was prior to the expiration period and that the amended answer and cross-bill did not allege anything specific that would void the sale and that the face of all pertinent pleadings, documents, etc., showed the description to be adequate at law and the complainant further alleged that there had not been a legal tender by the defendants to redeem said property.

The motion to strike the amended answer and cross-bill was sustained by the chancellor and a motion for judgment on the pleadings, being the bill of complaint and amendments thereto, was made by the attorney for the complainant and said motion was sustained and a decree was entered confirming the title to said land in the complainant. There was no trial on the merits.

The defendants, Leon B. DeGeorge and wife, appealed to this Court and assigned as error along with other assignments that the lower court erred in striking the amended answer and cross-bill and granting the ap-pellees a judgment on the pleadings and in failing to give the appellants a hearing on the merits.

This Court, in considering whether or not the chancellor erred in sustaining the motion to strike the amended answer, takes the material allegations of the amended answer to be true, and we must determine from the face of the amended answer and the exhibits attached thereto, if the facts stated in plain language were legally sufficient for the lower court to proceed with a hearing upon its merits.

The Court, after considering the allegations of the bill of complaint and the amended answer, is of the opinion that the material facts clearly stated and the legal presumption arising from said facts and such facts that are reasonably or necessarily implied from the facts stated in the amended answer and denials of the appellants were legally sufficient to withstand the motion to strike, since it was not necessary for the appellants in their amended answer to set forth in minute detail the evidence by which the ultimate facts were to be proven, and the motion to strike the amended answer of Leon B. DeGeorge and wife should have been overruled by the chancellor and a hearing held on its merits.

Striking an answer on motion is not favored in our practice and will be allowed only when there is no other available method and when the justice of the motion is so clear as to be fairly indisputable. In Griffith, Mississippi Chancery Practice (2nd Ed. 1950), § 367, this rule is clearly enunciated: cases it was held that such a motion would be sustained if the pleading was not at all proper to be considered on the hearing of the case, but the stringent remedy of striking finally is not favored in our practice, and will be allowed only where there is no other available method and when the justice of it is so clear as to be fairly indisputable.

§ 367. When an answer may be stricken as sham or frivolous. — It is said that if for any manifest reason an answer is so completely defective, or is so wholly out of order that it constitutes no answer, or is so manifestly sham and frivolous as to be no more than a delusion it will be stricken on motion, and in one of our

This case is reversed and remanded to the Chancery Court of Hancock County for a trial on the merits.

REVERSED AND REMANDED.

GILLESPIE, C. J„ PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.

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