author: GUIDRY, Judge.

text:
    Clifford DAIGREPONT, Plaintiff-Appellee, v. James W. WELCH, Jr., et al., Defendants-Appellants.
    No. 6433.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1978.
    Rehearing Denied May 24, 1978.
    Writ Refused July 3, 1978.
    Ledbetter, Percy & Stubbs by J. Michael Percy, Polk, Foote & Randolph, Lamar Polk, Gravel, Roy & Burnes, Robert L. Roy-er, Alexandria, for defendants-appellants.
    Steve W. Harris, Alexandria, for plaintiff-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

Defendants, James W. Welch, Jr. and United States Fidelity and Guaranty Company, appeal from a judgment which condemns them, in solido, to pay unto plaintiff the principal sum of $15,830.95, together with $50.00 for the cost of filing a labor and material lien.

The facts giving rise to this litigation are not seriously disputed.

Between the year 1969 and the early part of the year 1973, Peter Tattersall (Tatter-sall) acquired in several acquisitions some 500 acres of land which is referred to in the record as “Rosalie Plantation.” Tattersall’s purpose in acquiring this land was to develop a thoroughbred horse farm, that is to say a facility devoted to the breeding, raising, training and sale of thoroughbred race horses. Shortly following his acquisition of the initial tract of land in 1969 Tattersall contacted plaintiff, who was an earthmov-ing, sand and gravel contractor, to provide services in connection with the development of Rosalie Plantation. The agreement between plaintiff and Tattersall was a rather loose verbal arrangement whereby the former would provide dirt for the foundations of buildings, grade and maintain existing roads, build roads, clean ditches, etc., as these services and materials were required. Such services and material were furnished by plaintiff to Tattersall on an open account basis, payment being made by Tat-tersall to Daigrepont from time to time as funds were available. This rather informal arrangement began about the year 1970 and finally terminated on January 22,1975, shortly following which latter date Tatter-sall sold the entirety of Rosalie Plantation to James W. Welch, Jr. The sale to Welch was consummated on February 12, 1975. On March 7, 1975, plaintiff caused to be filed a lien in the amount of $16,180.50 against the whole of Rosalie Plantation, the lien being filed pursuant to the provisions of LSA-R.S. 9:4812 to secure the payment of labor and materials furnished for the construction of a racetrack. Subsequent to the recordation of this lien same was bonded (LSA-R.S. 9:4842). The bond was executed by Messrs. Tattersall and Welch as principals and United States Fidelity and Guaranty Company, as surety. There was no recourse against Tattersall, as he became a voluntary bankrupt in August of 1975. This suit was dismissed as to Tattersall by consent of all parties.

It is not disputed that Tattersall, at no point in time, had a master plan for the development of Rosalie Plantation. Rather, the horse farm was developed sporadically, over a period of some six years, to such extent and at such times, as funds permitted and necessity required. The development of Rosalie Plantation is best described by the testimony of Tattersall as follows:

“Q. Mr. Tattersall, what was your intention when you purchased this place?
A. My intention was to make money and make a living.
Q. Okay. How were you going to do that with this farm?
A. Any number of ways. I just sort of picked them up as I went along. My business changed greatly over a period of time. I don’t — I don’t see how I could say that when I bought the farm that I had the same intentions as I had seven years later or eight years later.
Q. Did you have plans to expand any further than this?
A. We expanded out of the back of our pocket. By that I mean, you know, overall plans, no . .”

Plaintiff testified in the same vein. Daig-repont stated:

“Q. Again, according to your testimony, there was no master plan involved _ .?
A. No master plan. No, Sir.
Q. All right, sir. So, the work you did for Mr. Tattersall was not conducted pursuant to or in accord with any plan that you started off with?

A. No.”

The record reflects that most of the improvements existing on Rosalie Plantation at the time of sale in February of 1975, were completely constructed and in use by early 1973. The lien filed by Daigrepont covers services and material furnished during the period October 26, 1973 to January 22, 1975. The only improvements made on Rosalie Plantation during this period were completion of a structure known as the “White Barn”; the building of a road to the “White Barn”; construction of a “breaking pen”; and, construction of the race track. All of these improvements were completed and the facilities in use by September of 1974. The only labor and materials furnished by plaintiff following September of 1974, were for maintenance of existing facilities. The last maintenance work performed by plaintiff in the year 1974, occurred on November 13th when he charged the sum of $62.50 for five (5) hours of work for grading an existing road. Plaintiff’s lien reflects only two items in the year 1975, those being as follows:

“1-22-75 5 yd red clay to white barn stable $17.50”
“1-20-75 5 yd river sand to braking (sic) lot $10.00”

The delivery of this material was purely for maintenance of existing facilities. This cannot be disputed. Mason Grasty, farm manager, testified that the “White Barn”, as well as the “Breaking Lot” had been in use, at least as early as September of 1974. The red clay was used to repack horse stalls in the “White Barn” in preparation for the foaling season and the river sand was to be added to the “Breaking Lot” to prepare for the breaking of the yearlings.

The trial court concluded that plaintiff’s lien was timely filed (within sixty days after the date of the last delivery of material upon said property); was valid to the extent of $15,830.95; and, affected the whole of “Rosalie Plantation”. In so concluding the trial court determined that there was one continuous “project”, i. e., “establishing of a horse-breeding farm” which commenced in the year 1969 and extended to the last delivery of materials on January 22, 1975. We conclude that this determination is erroneous and reverse.

The trial court relied on the case of Central Lumber Company v. Schroeder, 164 La. 759, 114 So. 644 (1927). In our view the trial court’s reliance on the cited case is misplaced as same is clearly inapposite from a factual standpoint. In Central, supra, a materialman-builder had agreed with a homeowner to repair and restructure a house damaged by fire. The homeowner owned contiguous lots to the lot upon which the house was located. While work was proceeding on the house, the homeowner engaged the builder to construct fencing and other improvements on the adjacent lots. The court in holding that the lien was valid as to all work and extended to all lots concluded that the construction constituted a single continuous transaction for the improvement of what was considered a single piece of property. We consider it significant that in Central, at some point in time after initial construction began a so-called “master plan” for the improvement of the whole property was decided upon; the construction on the project was continuous from the initial date of construction to completion; and, a period of only six (6) months elapsed from date of initial construction to the filing of lien.

In the instant case a so-called “master plan” for the development of Rosalie Plantation was never decided upon. Quite to the contrary the development of Rosalie Plantation was of a sporadic nature, with several months and perhaps as much as a year intervening between the completion and use of one facility and the construction of another. The record makes it quite clear that the development of Tatter-sail’s horse farm was piece-meal and that following initial construction additional facilities were built as the necessity arose and finances permitted. We consider it most significant that, if as determined by the trial judge, the development in this case was one continuous transaction the period within which liens could be filed would have extended from the year 1969 to the year 1975, or a period of some six (6) years. Such conclusion, in our view, is clearly contrary to well recognized legal principles to the effect that (1) lien statutes being in derogation of the common rights of owners and mortgagees, must be strictly construed against the lienors and liberally interpreted in favor of persons whose common rights are thereby impinged upon; Courshon v. Mauroner-Craddock, Inc., 219 So.2d 258 (La.App. 1st Cir. 1968) cert. den., 253 La. 761, 219 So.2d 778 (1969); McGill Corporation v. Dolese Concrete Company, 201 So.2d 125 (La.App. 1st Cir. 1967); Alside Supply Company v. Gervais, 303 So.2d 584 (La.App. 4th Cir. 1974) cert. den., 305 So.2d 545 (La.1975); and, (2) the privilege granted by lien statutes cannot be extended for an indefinite and lingering time to the possible unreasonable displacement of the rank of mortgages and other claims against said property. Cain v. Central Plumbing and Heating Company, 85 So.2d 376 (La.App. 1st Cir. 1956); Trouard v. Calcasieu Building Materials, 222 La. 1, 62 So.2d 81 (1952).

For the above reasons we reject the trial court’s conclusion that the services and material furnished by plaintiff to Tat-tersall were furnished in connection with one single continuous transaction for the establishment of a “horse-breeding” farm on Rosalie Plantation. We ultimately conclude that defendants have clearly sustained their defense of several agreements and contracts involving the furnishing of labor and materials for several distinct improvements. As aforestated, the last such improvements constructed on Rosalie Plantation were completed and in use by September of 1974. Plaintiff’s lien was not filed until March 7, 1975. This filing was clearly untimely and did not serve to preserve any privilege in favor of plaintiff, unless it be considered that the furnishing of 5 yards of river sand to the “breaking lot” on January 20, 1975 and 5 yards of red clay to the “White Barn” on January 22, 1975, constitute the “last delivery of material” for these improvements within the in-tendment of LSA-R.S. 9:4812. We have no difficulty in finding that the delivery of materials last referred to did not have the effect, under the circumstances of this case, of extending the time within which plaintiff could file a lien under the cited statute. The cases are legion holding that the date of the last material furnished or work done for purposes of the builder’s lien act is the date when the building or other improvement is treated or considered as complete and is occupied or otherwise placed in use, irrespective of whether the improvement is not technically complete and there are minor repairs or corrections of defects or minor additions to the work yet to be done. Hayes Lumber Company v. H. M. Jones Drilling Co., 177 La. 626, 148 So. 899 (1933); Bailey & Sons v. Western Geographical Co., 66 So.2d 424 (La.App. 2nd Cir. 1953); Cain v. Central Plumbing and Heating Company, 85 So.2d 376 (La.App. 1st Cir. 1956); General Lumber & Supply Co. v. McLellan, 200 So. 501 (La.App. 1st Cir. 1941).

Since we conclude that plaintiff did not preserve a valid lien against Rosalie Plantation it must follow that his suit against defendants on the bond furnished by the latter pursuant to LSA-R.S. 9:4842 is without merit. This holding renders unnecessary our consideration of the additional contentions raised by plaintiff-appellee’s answer to the appeal, i. e., whether attorney’s fees are due successful lien claimants under the private works statute; and, whether interest is due upon a lien claim from date of judicial demand or from the date of the filing of the lien.

For the above and foregoing reasons the judgment of the trial court is reversed and set aside and it is now ordered, adjudged and decreed that plaintiff’s suit against defendants be dismissed with prejudice. It is further ordered that upon finality of this judgment the surety bond furnished by defendants and recorded in Book 748, page 839, mortgage records of Rapides Parish, Louisiana, be cancelled. Finally, it is ordered that all costs at the trial level and on appeal be borne by plaintiff-appellee.

REVERSED AND RENDERED.

      . § 4812. Failure to record contract; record by claimant; period of privilege; rank
      When the owner, or his authorized agent, undertakes the work of construction, improvement, repair, erection, or reconstruction, for the account of the owner, for which no contract has been entered into, or when a contract has been entered into but has not been recorded, as and when required, the owner or his authorized agent may file an affidavit that the work has been completed, then any person furnishing service or material or performing any labor on the said building or other work may record in the office of the clerk of court or recorder of mortgages in the parish in which the said work is being done or has been done, an affidavit of his claim, which recordation, if done within sixty days after the date of the affidavit of completion or if no affidavit of completion is filed within sixty days after the date of the last delivery of all material upon the said property or the last furnishing of services or the last performance of labor upon the same, by the said furnisher of material or services or the said laborer, shall preserve a privilege upon the building or other structure and upon the land upon which it is situated, in favor of any such person who shall have furnished service or material or performed any labor in connection with the said work or improvement, as his interest may appear. The said claim, recorded as aforesaid, shall preserve a privilege against the property for a period of one year from the date of its recordation, and may be enforced by a civil action in any court of competent jurisdiction in the parish in which the land is situated and such cause of action shall prescribe within one year from the date of the recordation of the claim in the mortgage records of the office of the clerk of court or the office of the recorder of mortgages. The effect of the recordation of the claim shall cease and the privilege preserved by the recordation shall perempt unless a notice of filing of a suit (giving the name of the court, the title and number of the proceedings, and date of filing, a description of the property and a reference to the recorded claim), on said claim is recorded within one year from the date of the recordation of the inscription of said claim. Such notice of filing suit shall preserve the privilege until the court in which the suit is filed shall order the cancellation of the said inscription of the said claim and the notice of the filing of suit on said claim or until the claimant authorizes the clerk of court or recorder of mortgages to cancel the said inscriptions.
      The foregoing provisions shall not in any way interfere with or abrogate the right given an owner under R.S. 9:4842 to bond out any claim or claims recorded, nor shall said provisions apply to any claims recorded or lawsuits existing on July 27, 1966.
      Any person furnishing service or material or performing any labor on the said building or other work to or for a contractor or subcontractor, when a contract, oral or written has been entered into, but no contract has been timely recorded, shall have a personal cause of action against the owner for the amount of his claim for a period of one year from the aforesaid recordation of his claim, which cause of action shall prescribe one year after the date of said recordation. This shall not interfere with the personal liability of the owner for material sold to or services or labor performed for him or his authorized agent.
      The said privilege shall be superior to all other claims against the land and improvements except taxes, local assessments for public improvements, a bona fide mortgage, or a bona fide vendor’s privilege, whether arising from a sale or arising from a sale and resale to and from a regularly organized homestead or building and loan association, if the vendor’s privilege or mortgage exists and has been duly recorded before the work or labor is begun or any material is furnished. The claim for wages of a laborer for work done by him on any building, shall, when properly presented and recorded by him in accordance with the provisions of this Sub-part, preserve in his favor a privilege on the land and improvements which will prime the right of mortgagees or vendors. As amended Acts 1966, No. 405, § 1.

      . Although the lien refers to unpaid labor and materials which were used in and performed for the construction of a racetrack on Rosalie Plantation, the record indicates that the unpaid services and materials actually concerned for the most part, other projects on Rosalie Plantation. The trial court concluded that the lien was sufficiently specific and served as a valid lien for all unpaid labor and material, regardless of where expended on Rosalie Plantation. Our ultimate disposition of this matter makes it unnecessary that we consider appellant’s contention that it was improper to allow plaintiff to prosecute his claim for unpaid services and material unrelated to the race track.

      . § 4842. Bonding of claims by property owner
      A. Whenever an owner of real property shall have entered into a contract to perform private works under the laws of this state governing the letting and awarding of such contracts and in conformity with the requirements thereto, the owner of the property on which the said private work is being performed shall have the right to bond any claim or claims which may be filed or recorded against said work, whether by laborers, ma-terialmen, suppliers, sub-contractors or general contractors, by depositing with the clerk of court of the parish in which such claims are filed or recorded, a bond with surety signed by any surety company authorized to do business in the state for an amount equal to the claim, including the cost of preparing and recording the claim plus ten per cent attorney’s fees to cover the cost thereof in the event it becomes necessary for the claimant to employ an attorney to enforce collection, plus one-fourth. The bond shall be approved by the clerk of court conditioned that in the event the legality of such claim or claims is established by suit or otherwise, the bond shall remain in full force and effect to protect the interest of the claimant in the premises.
      B. The provisions of this Section shall apply to liens filed prior to or subsequent to July 31, 1968.
      Added by Acts 1960, No. 359, §§ 1, 2. Amended by Acts 1968, No. 524, § 1.


source: Caselaw Access Project

license: Public Domain

text:
    Max L. INGRAM v. Frank SEALS et al.
    No. 50225.
    Supreme Court of Mississippi.
    April 19, 1978.
    Rehearing Denied May 31, 1978.
    Roberts & Easterling, M. M. Roberts, Hattiesburg, Hurt & Dickerson, Darryl A. Hurt, Lucedale, for appellant.
    W. S. Murphy, Lucedale, Daniel, Coker, Horton, Bell & Dukes, William F. Dukes, Pete H. Carrubba, Gulfport, for appellees.
    Before ROBERTSON, P. J., and WALKER and COFER, JJ.
   AFFIRMED.


author: COFER, Justice,

text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. E. A. VAUGHEY, as general partner of Mississippi Valley Capital Company, a Mississippi limited partnership.
    No. 50017.
    Supreme Court of Mississippi.
    May 3, 1978.
    Rehearing Denied May 31, 1978.
    Thomas, Price, Alston, Jones & Davis, John H. Price, Jr., A. F. Summer, Atty. Gen. by Frank E. Shanahan, Jr., Asst. Atty. Gen., Jackson, for appellant.
    Watkins, Pyle, Ludlam, Winter & Stennis, L. Arnold Pyle, William A. Pyle, Jackson, for appellee.
    Before SMITH, WALKER and COFER, JJ.
   COFER, Justice,

for the Court:

This cause has been appealed to this Court by the Mississippi State Highway Commission (Commission) from a judgment for $57,600 awarded by a jury in the Circuit Court of the First Judicial District of Hinds County in favor of E. A. Vaughey, as general partner of Mississippi Valley Capital Company, a Mississippi limited partnership (Vaughey), as damages to appellee’s realty suffered by the closing of a portion of the west frontage road between McDowell Road and Daniel Lake Boulevard, fronting upon 1-55 South in the City of Jackson.

In the early 1960’s, Commission located and built the frontage road here involved. About 1965, it executed plans to construct an “on-ramp” from McDowell to the southbound lane of 1-55 highway, and, to do so, it determined that a segment of the west frontage road from the south boundary of McDowell southward approximately 800 feet long would have to be utilized therefor and discontinued as a frontage road. The precise date of the discontinuance of the segment as a public road is not clear, but it was in 1965. It was stipulated that the closing of it was more than six, but less than ten years before Vaughey brought this suit. In the place of the discontinued segment of the frontage road, Commission converted Kingswood Avenue into a frontage road, which is well marked as such by signs and is easily recognizable as such. Kings-wood connects with McDowell approximately 160 feet west of the former intersection of the frontage road therewith, and causes travel 1,200 feet along Kingswood as compared to 1,000 feet along the removed segment of the frontage road.

Vaughey’s property, at its northernmost point, is 800 feet south of the barricade on the frontage road routing traffic onto Kingswood. His property nowhere abuts on the closed portion of the frontage road.

Alleging that this action of the Commission damaged a valuable property right he had as owner of the said property, he brought this action. Both parties treated the recovery, if any, to which Vaughey was entitled as being the difference in the value of the land immediately before the taking and its value immediately after the taking, and experts’ proof was aimed at this determination.

Commission incorporated in its answer a plea in bar, asserting that statutes of limitation, Mississippi Code Annotated, Sections 15-1-49 and 65-1-59 (1972), bar Vaughey’s action. This plea was overruled, and the cause proceeded to trial.

On this appeal, Commission has assigned numerous errors of which only three — the court’s action on the plea in bar next above mentioned, the court’s error in overruling its requested peremptory instruction, and the court’s failure to grant judgment to Commission notwithstanding the verdict— are necessary to be considered, and they, or either of them, will dispose of the appeal.

Vaughey contends that the adverse possession statute, Section 15-1-13, governs, and that he is not barred from his suit.

In Louisiana & Mississippi Railroad Transfer Co. v. Long, 159 Miss. 654, 131 So. 84 (1930), appellants had for a long period of time used land of appellee abutting on the Yazoo Canal or Yazoo River, for mooring their boats by means of cables attached to trees on appellee’s land. The suit sought judgment for the rental value of appellant’s said use and occupancy of his land for a period of ten years before filing the suit. The court gave a six-year instruction, and on appeal it was held that the right of action was not barred until the expiration of six years from the date of its accrual. 159 Miss. at 667, 131 So. at 88.

While we do not believe Mississippi Code Annotated, Section 65-1-49 (1972), included in Commission’s plea in bar, is applicable here, it is noted that that statute fixed a maximum six-year limitation on actions by persons having an interest in lands on which easements are given for highway purposes.

This is not a situation where length of time, ten years or six years, was necessary in order for a cause of action to accrue to Vaughey. The action, if any, accrued at the very time of the closing of the segment of the road, no passage of time was necessary before suit might be brought, and the statute applicable to the action then began to run. Mississippi Code Annotated, Section 15-1-51 (1972).

This being true, if a cause of action lay, there is no sound reason why Commission should be left in suspense during an entire ten year period awaiting action against it for the closing.

We cannot agree that the adverse possession statute governs, but we conclude that Section 15-1-49 controls, and the action had become barred before it was begun. Romano v. Yazoo & M. V. R. R., 87 Miss. 721, 726, 40 So. 150 (1905).

Although we dispose of the case on the basis of the plea in bar, we notice and are of the opinion that the peremptory instruction requested by Commission should have been granted.

Full jurisdiction of this 1-55 highway and its frontage roads is vested in Commission. Mississippi Code Annotated, Section 65-1-19 (1972), as amended, and Section 65-1-1, et seq. Under this authority, it may establish, relocate, or abandon frontage roads. If it chooses to establish such a road, we do not understand that it binds itself to cause such a road to be contiguous to and parallel with 1-55, or not to alter the route of it, as appears to it advantageous to the ever increasing traveling public.

See Muse v. Mississippi State Highway Commission, 233 Miss. 694, 103 So.2d 839 (1958), wherein it is said:

It is undoubtedly true that the abutting landowner on a conventional public highway has a special right of access and user in the highway; and that right is a property right which cannot be damaged or taken from him without due compensation. The right of access is appurtenant to his land, and to destroy that right is to damage his property. Morris v. Covington County, 118 Miss. 875, 80 So. 337; Jackson v. Monroe County, 124 Miss. 264, 86 So. 769; City of Jackson v. Welch, 136 Miss. 223, 101 So. 361; Town of Clinton v. Turner, 95 Miss. 594, 52 So. 261; Smith v. Mississippi State Highway Commission, 183 Miss. 741, 184 So. 814; Puyper v. Pure Oil Co., 215 Miss. 121, 60 So.2d 569; Hamilton v. Mississippi State Highway Commission, 220 Miss. 340, 70 So.2d 856. But there is also a coexistent right belonging to the public, to use and improve the highway for the purpose of travel; and the owner of the abutting land has no absolute right, as against the public, to insist that the adjacent highway always remain available for his use in the same manner and to the same extent as when it was constructed. Land condemned for highway purposes without limitation as to surface use is at all times under the control of the highway authorities, which may make such use of the land as may be required; and the abutting landowner’s right of access and user are subject to the right of the state under the police power to regulate and control the traffic on the highway in the interest of safety, and to restrict in a reasonable manner entrances from abutting property.

(233 Miss. at 713-14, 103 So.2d at 847).

See also Harreld v. Mississippi State Highway Commission, 234 Miss. 1, 103 So.2d 852 (1958).

Vaughey is not an abutting owner on the segment taken out of use, but his property, fronting on the portion still in use, extends far toward the frontage road’s exit near Daniel Lake Boulevard which remains open. Also, the property has convenient access to McDówell by way of Kingswood Avenue. The exhibits reflect Greenwood Street as passing through the property, and this street affords direct access to Daniel Lake Boulevard on the south and McDowell Road on the north.

Mississippi State Highway Commission v. Burge, 239 So.2d 914 (Miss.1970), involved the closing of a street just east of appellee’s property, but appellees had continued access to a street on the north side of their property, by traveling over 800 additional feet to reach the highway. It was there said:

With the access road in front of their property, appellees still have reasonable access to the general system of streets and roads in the community, and thus cannot claim damages in that respect. (239 So.2d at 915).

Puyper v. Pure Oil Company, 215 Miss. 121, 60 So.2d 569 (1952), involved the closing of a portion of a street. The chancellor held: that complainants were not abutting property owners entitling them to compensation for the street closing; that they had no special interest in the use of the vacated street for access purposes to their property because their property did not abut on that portion of the street which was closed; that they had sufficient and adequate access to and from their property; and, that they sustained no special damage by the street closing not shared by the general public.

We said on appeal of the case:

The general rule is that one whose property does not abut on the closed section of a street has no right to compensation for the closing or vacation of the street, if he still has reasonable access to the general system of streets. The circumstances in some cases may be such as to give a right to damages to property owner, even though his property does not abut on the closed section. But to warrant recovery in any such case the property owner must show that the situation is such that he has sustained special damages differing in kind, and not merely in degree, from those sustained by the public generally. 18 Am.Jr., p. 856, Eminent Domain, par. 224. (Emphasis added)
In the case of Tomaszewski et al. v. Palmer Bee Company et al., 223 Mich. 565, 194 N.W. 571, 572, the Court held that mere inconvenience to owners of property abutting on a street but not on a closed section, in having to go around instead of through the adjacent block, when proceeding in that direction, does not constitute a taking of property. In that case the Court said: “It is a well-settled rule that a lot owner’s right to object to the vacation of a part of a street depends upon whether his lot abuts upon or comes in actual contact with the vacated portion, or access to his lot is entirely or materially cut off by reason of the vacation. That he may be inconvenienced or that he may have to go a more roundabout way to reach certain points does not bring to him any injury different in kind from the general public, but only in degree. If means of ingress and egress are not cut off or lessened in the block of the abutting owner, but only rendered less convenient because of being less direct to other points in the city, and made so by the vacation of the street in another block, such consequence is dam-num absque injuria. Buhl v. Union Depot Co., 98 Mich. 596, 57 N.W. 829, 23 L.R.A. 392. See also, Baudistel v. Michigan Central Railroad Company, 113 Mich. 687, 71 N.W. 1114; [John K. Cummings] Realty & Investment Co. v. Deere & Co., 208 Mo. 66, 106 S.W. 496, 14 L.R.A., N.S., 822; Kinnear Mfg. Co. v. Beatty, 65 Ohio St. 264, 62 N.E. 341, 87 Am.St.Rep. 600; McQuillin Mun. Corp., Vol. 3, par. 1410; Elliott, Roads & Streets (3rd Ed.), par. 1181.

(215 Miss. at 135, 135, 60 So.2d at 573.)

In Town of Wesson v. Swinney, 144 Miss. 867, 110 So. 669 (1927), the landowner did not abut on the closed segment of the street and we held that this damage was no different in kind from the property owners generally in the town, although he, the appellee, had a mercantile establishment on his lot, to which store the frequency of the travel on the street west of his lot brought trade, and the result of the closing of the street “was that a large part of the traveling public which had theretofore passed along the street in front of appellee’s lot on the west was diverted to the new street crossing.” 144 Miss. at 871, 110 So. at 669.

In Mississippi State Highway Commission v. Irby, 190 So.2d 445 (Miss.1966), it was held that:

The general rule is that one whose property does not abut on the closed section of a street or road has no right to compensation for the closing or vacating of the street or road, if he still has reasonable access to the general system of streets or roads. Puyper v. Pure Oil Co., 215 Miss. 121, 60 So.2d 569 (1952). There are certain exceptions to the rule just stated. If the action of the public authorities in closing a street leaves property in a cul de sac, the owner is entitled to compensation. Mississippi State Highway Commn. v. Fleming, 248 Miss. 187, 157 So.2d 792 (1963). If a public road starts at a tract of land and connects the tract with the public road system, the closing of such public road between the tract of land and the public road system entitled the landowner to damages because he is deprived of the right of access to his land by the closing of a public road. Mississippi State Highway Comm. v. Myers, 184 So.2d 409 (Miss.1966).

(190 So.2d at 447).

We find no damage accrued to Vaughey differing from that suffered by the public generally, and that the peremptory instruction should have been granted, and, not having been granted, the commission’s request for judgment notwithstanding the verdict should have been sustained.

We therefore reverse the cause with judgment here for the Commission.

REVERSED AND RENDERED.

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

BOWLING, J., took no part.


text:
    Pat DENMARK v. Mary Alice MILLER.
    No. 50257.
    Supreme Court of Mississippi.
    May 10, 1978.
    Rehearing Denied May 31, 1978.
    W. S. Murphy, Lucedale, for appellant.
    William T. Bailey, Sr., Lucedale, for ap-pellee.
    Before SMITH, P. J., SUGG and BROOM, JJ., and JOHN C. LOVE, Jr., Commissioner.
   AFFIRMED.


text:
    James Roland COVINGTON v. Bess Alene B. COVINGTON.
    No. 50661.
    Supreme Court of Mississippi.
    May 10, 1978.
    Rehearing Denied May 31, 1978.
    Laurel G. Weir, Philadelphia, for appellant.
    Singley, Minniece, Neville & Hamill, James T. Singley, Meridian, for appellee.
    Before PATTERSON, C. J., and WALKER and COFER, JJ.
   AFFIRMED.


author: SMITH, Presiding Justice,

text:
    Helen THOMAS v. STATE of Mississippi.
    No. 50482.
    Supreme Court of Mississippi.
    May 10, 1978.
    Rehearing Denied May 31, 1978.

      William E. McLellan, III, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Karen A. Gilfoy, Asst. Atty. Gen., Jackson, for appel-lee.
    Before SMITH, P. J., and SUGG and BROOM, JJ.
   SMITH, Presiding Justice,

for the Court.

Helen Thomas, a/k/a Helen Ford, was convicted in the Circuit Court of the First Judicial District of Hinds County of selling heroin, a controlled substance, and sentenced to twenty-five years imprisonment. On appeal she has assigned three alleged errors as requiring reversal. In oral argument before this Court, her counsel has conceded that the first two of such assignments are without merit and these will not be discussed.

The third assignment is predicated upon the refusal of the trial court to sustain a motion for a new trial because of allegedly prejudicial remarks made to the jury by the assistant district attorney in his final argument.

In his final argument to the jury, the assistant district attorney said, “Did any of you ever see a dope pusher? Well, take a good look at that woman sitting at that table, that’s a pusher!”

Appellant’s counsel objected upon the ground that the statement was highly prejudicial. Before the court could rule upon the objection, the assistant district attorney said, “I object to the interruption.” At this point the court said, “Objection sustained.”

It is now contended by appellant’s counsel that he did not know whether the court had sustained his own objection to the inflammatory remarks or had sustained the objection of the assistant district attorney to the interruption. In any case, defense counsel made no effort to find out and made no inquiry of the court as to which objection the ruling had applied, made no request that the jury be instructed not to consider the allegedly inflammatory remarks, did not request a mistrial, and pursued the matter no further.

After the jury had retired and had begun its deliberations, counsel did then, for the first time, inquire of the trial judge which objection he had sustained and was informed by the court that the court had sustained defense counsel’s objection to the quoted remarks. Still no motion for a mistrial was made and nothing further was done.

The jury convicted appellant, and following appellant’s conviction, the question was sought to be raised in a motion for a new trial, and a bill of exceptions was obtained and made a part of the record, which reflects the foregoing circumstances relating to the incident. In his oral argument to this Court, in explanation of his failure to move contemporaneously for a mistrial, counsel for appellant stated frankly that his reason for omitting to request a mistrial at the time was that he deliberately took what he described as a “calculated risk.” In other words, he desired to accept the possibility that the jury might return a verdict of acquittal and he was willing to take the chance that, on the other hand, it might convict appellant.

The latter eventuality having transpired, he then sought to raise the matter by motion for a new trial. Having deliberately taken his chances, this was too late.

In Hyde v. O’Neal, 234 Miss. 112, 105 So.2d 553 (1958) this Court stated:

Counsel for Hyde objected to what they considered an improper argument to the jury by counsel for Mrs. O’Neal. The court sustained the objection. There was no motion for a mistrial. Hyde argues on this appeal that a mistrial should have been ordered even though not requested. He says this is an unusual case and the requirement of a motion for mistrial should be waived. We know of no exception to the necessity for a motion. The eases disclose that the objectionable remarks have been of varying nature, gravity and effect. The reasons for the rule are that we cannot put the trial judge in error on a question not passed upon by him, and also that a litigant cannot wait, without objection, and take chances on a jury verdict, and when the verdict is against him, then take advantage of a motion he should have made at the proper time. Nelms & Blum Company v. Fink, 159 Miss. 372, 383, 131 So. 817; Brush v. Laurendine, 168 Miss. 7, 150 So. 818; Crawford v. State, Miss., 54 So.2d 230; Bustin v. State, 184 Miss. 1, 185 So. 259; Robertshaw Trustees v. Columbus & G. Ry. Company, 185 Miss. 717, 188 So. 308; Aldridge v. State, 180 Miss. 452, 177 So. 765; Hathaway v. State, 195 Miss. 311, 15 So.2d 361, suggestion of error sustained 13 So.2d 819; Herrin v. State, 201 Miss. 595, 29 So.2d 452. (Emphasis added).
234 Miss. at 121-122, 105 So.2d at 557-558).

See also Stevenson v. State, 244 So.2d 30 (Miss.1971); Collins v. State, 202 So.2d 644 (Miss.1967) and Coburn v. State, 250 Miss. 684, 168 So.2d 123 (1964).

No question is raised as to the sufficiency of the evidence to support the verdict and no prejudicial error has been shown to have occurred. Therefore, the conviction is affirmed.

AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


text:
    Jo Ann WOODALL v. STATE of Mississippi.
    No. 50430.
    Supreme Court of Mississippi.
    May 24, 1978.
    Omar D. Craig, Oxford, for appellant.
    A. F. Summer, Atty. Gen., by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J, WALKER and COFER, JJ., and PIGOTT, Commissioner.
   JOE N. PIGOTT, Commissioner for the Court:

The appellant was tried in the Circuit Court of Lafayette County on a charge of murder, the jury returned a verdict of guilty of manslaughter, and appellant was sentenced to eighteen (18) years with six (6) years of the sentence suspended.

Although the appellant filed eighteen assignments of error, it is only necessary that one assignment be considered as this case must be reversed.

The appellant and Willie Lee Woodall were first married in 1970, were divorced, and remarried in 1974, a marriage that existed in turmoil and concluded in tragedy.

There was testimony that the deceased, Willie Lee Woodall, had a recurring thirst for intoxicating liquors which he regularly quenched, becoming odious and violent toward his wife on such occasions.

On Sunday, January 25, 1976, Willie Lee Woodall insisted that appellant get out of her house. He choked her, dragged her by her hair from the bedroom to the kitchen sink and held her head under running water, stopping only in response to pleas of her young son.

During the next week the deceased made several threats to kill the appellant. On Saturday morning, January 31, 1976, Willie Lee Woodall left the home about 8:00, and together with some friends consumed four six-packs of beer and at about 2:00 p. m. returned to the house with a bottle of wine. He entered the house, spoke to the appellant and her father, Joe L. Thomas, who were in the living room, and proceeded to the bedroom.

The appellant went to the bedroom to talk with Willie Lee Woodall. The bottle of wine was on a dresser behind Willie Lee. Appellant testified that she told Willie Lee that they needed groceries bought and bills paid. Willie Lee replied that he would not buy groceries or pay bills. Appellant then told Willie Lee that he would have to leave her house if he was not going to buy groceries or pay bills.

Willie Lee struck the appellant on her chest with his fist, shoving her against a chest of drawers, and told her he was going to kill her. Willie Lee moved backward and, fearing that Willie Lee would grab the wine bottle and kill her with it, the appellant grabbed a knife from on top of the chest of drawers. Willie Lee rushed at her, she dropped the knife and they both struggled for the knife. She got the knife and struck at Willie Lee with the knife. Willie Lee called to her father, Joe L. Thomas, “Joe Lewis, come here. Jo Ann done stuck me.” They continued to struggle onto a bed with Willie Lee gaining a hold on the knife. Joe L. Thomas went to the bedroom door and saw the appellant on the bed with Willie Lee on top of her, both had a hold on the knife. Joe L. Thomas left to go and call law officers.

The appellant and Willie Lee ceased their struggle and she ran through the house hollering for help while Willie Lee collapsed onto the floor of the bedroom.

Two men responded to the call for help and assisted the appellant in getting Willie Lee into her car. She drove Willie Lee to the hospital where he died as a result of one stab wound above the right collarbone.

If there were a contradiction in the version of the defendant as to the location of the wine bottle when she thought that Willie Lee was going to grab it and the location of the wine bottle when the sheriff arrived on the scene, such contradiction was not a material discrepancy.

The sheriff’s description of the room, the testimony of Joe L. Thomas and the wound on the body of the deceased were consistent with the version of the events given by defendant.

The version of the defendant as to the events was reasonable and was not contradicted in any material particular by any witness, physical fact, or by any fact of common knowledge.

Mississippi Code Annotated, Section 97-3-15 (1972) provides, in part:

The killing of a human being by the act, procurement, or omission of another shall be justifiable in the following cases:
(e) When committed by any person in resisting any attempt unlawfully to kill such person or to commit any felony upon him, or upon or in any dwelling-house in which such person shall be;
(f) When committed in the lawful defense of one’s own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished .

In Wilson v. State, 199 So.2d 445 (Miss.1967), the Court reaffirmed the rule announced in Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933), wherein it was stated:

Where the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge.

165 Miss. at 209, 147 So. at 482.

In the case of Cassidy v. State, 233 So.2d 122 (Miss.1970), the alleged discrepancies in the testimony were found to be insufficient to overcome the presumption of innocence and the testimony of the defendant showing self-defense.

In Childs v. State, 240 So.2d 611 (Miss.1970), no motive for the shooting was suggested save that testified to by Childs that he fired in necessary self-defense. His version of the occurrence was not so intrinsically unreasonable as to require its rejection in the absence of countervailing evidence, nor was it inconsistent with the physical facts in evidence or with matters of common knowledge.

Cummings v. State, 271 So.2d 407 (Miss.1972) applied the rule in Weathersby v. State, supra, and cited Lee v. State, 232 Miss. 717, 100 So.2d 358 (1958) in holding the killing justifiable in self-defense.

In Dew v. State, 309 So.2d 857 (Miss.1975), the Court applied the rule of Weathersby v. State, supra, in holding the homicide excusable as an accident.

In this case, the version of the defendant, the sole eyewitness, was reasonable and was not contradicted in any material particular by any witness or by physical facts or by facts of common knowledge. •

We, therefore, hold that this case must be reversed and the defendant discharged.

REVERSED AND RENDERED.

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

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


text:
    DUNHAM-BUSH, INC. v. BARRON-LEGGETT ELECTRIC, INC.
    No. 50347.
    Supreme Court of Mississippi.
    May 24, 1978.

      Rushing & Guice, William Lee Guice, III, Biloxi, for appellant.
    John G. Corlew, Pascagoula, for appellee.
    Before PATTERSON, C. J., and WALKER and COFER, JJ.
   COFER, Justice,

for the Court:

This case originated in the County Court of Jackson County where on December 12, 1973, appellant Dunham-Bush, Inc. (Dun-ham) sued appellee Barron-Leggett Electric, Inc. (Barron) on an open account to which Barron filed a counterclaim for damages. The court dismissed both the declaration and the counterclaim, whereupon Barron appealed to the Circuit Court of Jackson County, where the decision of the county court was reversed and damages were awarded to Barron on its counterclaim.

Dunham appealed therefrom, assigning: that the circuit court erred in reversing the county court which was the trial court and its decision must be presumed valid; that the circuit court erred in reversing the county court for Dunham was entitled to a dismissal of Barron’s counterclaim as a matter of law; and that the circuit court erred in reversing the county court for the verdict and judgment of the trial court were supported by the evidence and the law.

We reverse the circuit court’s decision and reinstate the judgment of the county court.

Fletcher Construction Company, prime contractor in the construction of a building, Doctors Plaza, in Pascagoula, subcontracted with Barron to supply and install air conditioning for the building. Slaughter and Allred were the architects for the building and made up the plans and specifications for the project.

According to the plans and specifications, Trane air conditioners or prior approved equals were to be installed. Owing to impossibility in timely delivery of the Trane equipment, Barron negotiated with Dun-ham which furnished descriptions, pictures, capabilities, and further details on equipment such as needed by Barron.

After obtaining approval of the Dunham machinery as prior approved equal to the Trane machinery, Barron placed an order with Dunham for two 80-ton air chillers and one 15-ton air chiller and air handlers for three chillers. On the purchase order Barron wrote “all equipment and material shall be in accordance with plans and specifications and are subject to engineer’s approval.” Dunham had furnished Barron many pages of information and pages with blocks for Barron’s use in choosing among numerous alternatives in the equipment. These sheets were to be examined and understood by Barron, which was to indicate thereon choices of equipment desired, and were then to be attached to and regarded as a part of Barron’s order.

No trouble was experienced as a result of installation and use of the 15-ton chiller, but vibration from the two 80-ton chillers was such that parts of the building could not be used for their intended purpose. Barron contended that had Dunham furnished vibration absorbers for these heavier units, there would have been vibration so slight as not to be objectionable, and by its counterclaim demanded, and on appeal to the circuit court was awarded, damages incurred by it in subduing the vibration.

Dunham’s position was that Barron got the machinery it ordered, that it was not entitled to the vibration absorbers under its purchase order, and that the vibration transmission was not caused by the ordered items.

In one of its data submittal pages, under the heading of “construction details” “30 thru 125 ton models,” appear these paragraphs:

MOTOR COMPRESSORS — D/B-metic, Big 4, and Multidrive compressors are in the “ARPC” units in this capacity range. These large horsepower compressors combine the reliability and the ruggedness required of large reciprocating machines. All semi-hermetic compressors motors are suction gas cooled and are equipped with temperature and current sensing overload protection.
D/B-Metic and multi-drive compressors are mounted on vibration isolators and are provided with discharge line vibrasor-bers installed parallel to the compressor crankshaft.

and

For further details on these compressors, refer to the following forms: D/B-Metic, Form 4030; Big 4, Form 4055; Multi-Drive, Form 4020.

On a sheet of the submittal data entitled “Mechanical Specifications, 'ARPC’ air cooled package chillers, 30 tons through 125 tons,” there appears a block to be checked if unit vibration isolators were desired and a blank line for the type of such isolator if desired. It was left blank. On a page “optional accessories,” it is said:

UNIT VIBRATION ISOLATION— where job conditions require them, unit vibration isolators may be supplied. Rubber-in-shear type with approximately .4" of deflection are adequate for units mounted on a solid foundation. For less rigid foundations, such as normal roof structures, steel spring isolators with approximately 1" of deflection are recommended. Where isolation requirements are critical, the isolation system should be analyzed and recommendations made by isolation specialists. Dunham-Bush can then provide the required mounting.

Joe Schwegman, in charge of Barron’s mechanical operations at the pertinent times, drew a circle in red pencil on one of the drawings to indicate where the isolator would be. Another page of the submittal data identified as “addendum to contract,” contains drawings under which arrows point to what the sheet identifies as “support points and vibration isolation locations.”

Under these circumstances, Barron placed its order without making a full examination of the submittal data, without specifically choosing between the D/B-Metic, Big 4, and Multi-Drive Compressors, and without indicating a desire to have vibration absorbers as optional equipment. Dunham considered that the Big 4 was most suited for the systems it was selling to Barron, and used it as the compressor. As set out above, Big 4 is the only one of the three available choices not mounted on vibration isolators. No material difference in the prices of the three compressors seemed to have existed or to have influenced Barron to make no choice among them or to have influenced Dunham to utilize the Big 4.

The record shows that the Dunham-sub-mittal data were sent to the owner for which the building was being constructed by way of the general contractor and the architect, and they approved the equipment. The witness Schwegman said he reviewed the submittal data and did not see that vibration isolators were not included on the chillers; he did not examine the equipment when it was received; Barron talked to no vibration isolation specialist before placing the order; it did not inquire of Dunham if the compressors had vibration isolators because he assumed they did; Barron did not follow any recommendations with respect to the optional equipment, which option page has been hereinbefore noticed, nor were any recommendations with respect to vibration isolators included in the installation of the units. From their arrival from Dunham the units remained crated until Barron was ready to install them, and those persons, including the engineer who had a duty as to them, did not inspect the units before their installation.

Schwegman testified that Dunham did not inform him as to the type of compressor being supplied and, since it was supposed to be isolated, he assumed the units would have compressors that Dunham’s submittal data said were equipped with isolators, a supposition, he said, based on the plans and specifications: “You can’t go over every word of every submittal data that you get. It would be so monsterous (sic) you could never do it. It would be impossible.”

From the record the conclusion is warranted that the vibration from these units was the result, to some degree, of failure to include isolators and that the transmission of noise and vibration into the building to the disturbing level complained of was caused by failure on the part of the responsible parties to use building materials of such nature and manner of location and installation as to eliminate or reduce to an acceptable level this transmission. Neither the vibration nor its transmission into the building resulted from any omitted duty of Dunham.

There were claims by Barron of $614.24 and $96.86, balances, for repairs, etc., to the equipment caused by breach of warranty as to its fitness, etc., on purchase. These claims were denied by Dunham and the county judge dismissed the counterclaim wholly on the record made, from which he, no doubt, concluded Barron had not proved damages for breach of warranty by the measure of evidence necessary to recovery.

The county judge was the trier of the facts, and did try them, and arrived at the conclusion that neither party was entitled to recover any amount by its suit. Unless prejudicial error appears in his findings and decisions, then affirmance would be proper. We have carefully examined the record, and are convinced that the county judge did not commit prejudicial error, but rather that his decision of the case had sound basis in the testimony before him. Mississippi Code Annotated § 11-51-79 (1972).

The judgment of the circuit court will be reversed, and the county court’s judgment denying relief to Barron will be reinstated.

REVERSED AND RENDERED.

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


text:
    John D. MOSLEY v. STATE of Mississippi.
    No. 50447.
    Supreme Court of Mississippi.
    May 24, 1978.

      Guy M. Walker, Laurel, for appellant.
    A. F. Summer, Atty. Gen., by Hubbard T. Saunders, IV, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and WALKER and COFER, JJ.
   COFER, Justice,

for the Court:

Appellant was indicted in the Circuit Court of the Second Judicial District of Jones County on a charge of wilful, unlawful, felonious and knowing possession with the intent to sell, of a quantity, more than an ounce, of marijuana, a controlled substance, and on trial was found guilty of possession of marijuana with intent to sell, and, therefor was sentenced to a term of five years with the Department of Corrections. Hence, this appeal.

Appellant here assigns two errors: (1) the trial court erred in refusing to allow testimony regarding the contents of the defendant’s pockets and inventory of his possessions revealed on search, and (2) the verdict of the jury was against the overwhelming weight of the evidence and law.

Noticing the first of these assignments, appellant, in insisting on disclosure to the jury of the contents of his pockets and clothes, was undertaking to establish that there was no money found on him which would tend to negate any sale of the controlled substance. In spite of the court’s refusal to permit this proof, defendant, in cross examining the officer, was successful in obtaining testimony that he did, at the search, have some money in his pockets.

We consider that no error was committed by the trial court, and there is no merit in the assignment. If, however, there were otherwise error in refusing the cross examination as to possessions of defendant discovered by the officers, we believe it is rendered moot by our disposition of the second assignment of error.

It is finally argued by appellant that the verdict was against the overwhelming weight of the evidence and law.

The testimony showed: that appellant crossed a Laurel street, late in the afternoon of August 28,1976, with a brown grocery bag in his right hand; that a man of his description was seen standing behind a lounge with a brown grocery bag in his hand and in the presence of a black man; that the man reached into the bag, took his hand out of the bag, held his hand over a cup being held by the black man, and moved his fingers as if dusting something off of them; that he entered the lounge carrying the brown bag; that two law enforcement officers, alerted to these events, entered the lounge, and found him seated alone at a table; that one called him aside and the other observed a brown bag partially under the chair recently occupied by appellant and where his foot was formerly; that the officer who saw the bag asked appellant if he had forgotten the bag and appellant replied that it was not his; and, that the officer took possession of it. The contents of the bag were placed in the possession of the Mississippi State Crime Laboratory for chemical analysis. James Williams, employed at the laboratory and established as qualified in the field of toxicology, testified that the contents of the bag were analyzed by him and found to be marijuana, slightly over nine ounces in weight.

Appellant testified: that he was walking across the street and “a little black guy” stopped him, by calling him by name to come over to where he was; that they started talking; that the black man identified himself as “Charley” and said, “Let’s go inside, let me take you inside and drink a beer;” that they went into the lounge; that the black man said, “Come on and sit down,” and went to get a beer. At that time the police officers entered and told appellant to come outside. As he was complying with their instructions, one of the officers asked him if it was his bag which appellant denied. On the stand, he again denied that it was his. He said further that the bag was under the table, close to him.

Janice Ogletree, appellant’s girl friend testified that appellant had no paper bag, or anything like that, in his hand either while crossing the street or prior to that time when he was with her in another lounge across the street.

The jury was warranted by the overwhelming weight of the evidence in finding that he unlawfully possessed the marijuana.

It was pointed out by Justice Walker, speaking for the Court in Schloder v. State, 310 So.2d 721 (Miss.1975), that Mississippi Code 1972 Annotated, Section 41-29-139 (Supp.1974), setting out prohibited acts in the area of controlled substances and providing penalties on conviction thereof, makes possession of a controlled substance with intent to deliver a felony and punishable accordingly on conviction and that possession of such controlled substance with intent to sell is not unlawful. He further said:

The failure of the Legislature to make it unlawful to possess a controlled substance with intent to sell the same was no doubt an oversight; however, criminal statutes in derogation of the common law must be strictly construed in favor of the accused. McInnis v. State, 97 Miss. 280, 52 So. 634 (1910). Therefore, appellant was erroneously charged with possession with intent to sell. (310 So.2d at 723).

It is here observed that in the amendments to this act in Chapter 482, Laws of 1977, effective July 1,1977, Mississippi Code 1972 Annotated, Section 41-29-139 (Supp. 1977), Prohibited acts A; penalties continues in part to read “(a) Except as authorized by this article, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.” (Emphasis added).

In Joyce v. State, 327 So.2d 255 (Miss.1976), the appeal was from conviction of the crime of possession of marijuana with intent to sell.

Both decisions held that the possession of marijuana of more than an ounce in weight was a lesser offense made a crime by Section 41-29-139(d)(2)(B) (Supp.1974), and was included in the indictment although the intent to sell did not constitute a crime. The words in the indictment “with intent to sell” are surplusage.

As held in the Schloder and Joyce cases the indictment here properly charged the lesser included offense of possession of more than an ounce of marijuana, and, on the conviction, appellant should have been sentenced as provided in Section 41-29-139(d)(2)(A) (Supp.1974).

We affirm the conviction of the lesser offense, as we did in the Joyce case above, and remand the case for resentencing under Section 41-29-139(d)(2)(B), which provides inclusive sentences which may be given for possession of more than one ounce of marijuana.

Affirmed as to the lesser included offense and remanded for proper resentencing.

AFFIRMED AND REMANDED.

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


author: LEE, Justice,

text:
    Frederick DOTSON v. STATE of Mississippi.
    No. 50477.
    Supreme Court of Mississippi.
    May 24, 1978.
    Johnnie E. Walls, Jr., Robert E. Buck, Greenville, for appellant.
    A. F. Summer, Atty. Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, LEE and BOWLING, JJ.
   LEE, Justice,

for the Court:

Frederick Dotson was convicted of simple assault upon a law enforcement officer in the Circuit Court of Washington County and was sentenced to five (5) years in the custody of the Mississippi Department of Corrections, with two (2) years suspended on good behavior. He appeals to this Court and assigns the following errors in the trial:

(1) The court erred in refusing to grant appellant’s proposed Instructions D-l, D-2, and D-3.

(2) The court erred in granting the State’s Instruction S-3.

(3) The court erred in granting the State’s Instruction S-4.

On November 2, 1976, Officers Troy Livingston and David Brown of the Greenville Police Department, while in the line of duty, were looking for appellant with a warrant for the search of his automobile. Livingston was in charge of the narcotics division of the police department. At the time, he was dressed in blue jeans, a slip-over shirt, a green Army field jacket and a toboggan. He was wearing nothing which would identify him as a police officer. The automobile he and Brown were using was not identified by police insignia, blue lights or other equipment common to a police vehicle.

The officers saw appellant’s unoccupied car parked on a city street in Greenville. They waited until Dotson came to the car, got in, drove down the street, and stopped at a red light. The officers pulled up behind appellant’s vehicle at the light, Livingston got out of the car on the passenger side, and, according to him, walked up to Dotson’s open window and shouted, “Dotson, freeze — police.” He was carrying a flashlight in his left hand. Livingston further testified that Dotson pointed a pistol in his direction and then drove off at a fast rate of speed. Livingston drew his revolver and fired a shot into appellant’s automobile as it left the scene. The officers followed in pursuit and were joined by other police cars with blue lights. Dotson stopped, was ordered out of the car, and was placed under arrest without resistance. A .38 revolver and a .25 automatic pistol were recovered from appellant’s automobile. The revolver was found in the glove compartment and the pistol was under the seat on the driver’s side.

Appellant testified that he looked in the rear view mirror and saw Livingston approaching dressed as above described, that he did not know Livingston or that he was a police officer, that he thought someone was trying to do him bodily harm, and that the person was probably a “hit” man. He denied that he pointed a pistol at Livingston but said that he immediately pulled off at a fast speed in order to get away from him.

The crucial question, which has not been previously decided in this state, is whether or not under the circumstances and facts hereinabove related, the court should have submitted to the jury the question of whether or not appellant knew Livingston to be a police officer acting in the line of duty. Stated otherwise, does Mississippi Code Annotated Section 97-3-7(l)(c) (Supp. 1974) require knowledge (scienter) on the part of a person charged under said section that the individual assaulted was a police officer? Section 97-3-7(1) provides:

“(1) A person is guilty of simple assault if he (a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (b) negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or (c) attempts by physical menace to put another in fear of imminent serious bodily harm ; and, upon conviction, he shall be punished by a fine of not more than five hundred dollars ($500.00) or by imprisonment in the county jail for not more than six (6) months, or both. Provided, however, a person convicted of simple assault upon a law enforcement officer or fireman while such law enforcement officer or fireman is acting within the scope of his duty and office shall be punished by a fine of not more than one thousand dollars ($1,000.00) or by imprisonment for not more than five (5) years, or both.” (Emphasis added).

The language of Subsection (c) under which the indictment was drawn, does not set forth that the accused know the person assaulted to be a law enforcement officer.

Instruction D-3 [See Appendix], requested by the appellant and refused by the court, stated that the jury must find beyond reasonable doubt that appellant knew and perceived at the time Troy Livingston was a police officer who was acting within the scope of his duty and office as such. The precise issue was not submitted to the jury by any other instruction.

The Federal courts have construed 18 U.S.C. § 111 (which makes it a violation for assaulting a federal officer) to mean that while knowledge (scienter) is not necessary, yet, if the officer stands in the position of an aggressor or of a private individual committing a tort, and his identity is not known to the accused, then the accused has the right to use such force as may be necessary to protect himself from such assault or tort and that, in such a situation, the government must prove the defendant knew the person assaulted by him to be a police officer.

In United States v. Hillsman, 522 F.2d 454 (7th Cir. 1975), cert. den., 423 U.S. 1035, 96 S.Ct. 570, 46 L.Ed. 410 (1975), the Seventh Circuit Court of Appeals said:

“In short, then, where a defendant charged with violating § 111 claims that he was unaware that the victim was a federal officer, the question becomes: would the defendant have been justified, because of the agent’s actions, in using force against the agent had the latter, in fact, been a ‘civilian.’ If the defendant made an honest mistake of fact with respect to the agent’s status and the defendant’s use of force would have been justified against a private citizen, then he cannot be held criminally liable under § 111. For to hold him liable would create a situation ‘where legitimate conduct becomes unlawful solely because of the identity of the individual or agency affected.’ 420 U.S. at 685, 95 S.Ct. at 1264. If, on the other hand, the defendant would not have been justified in using force against a private citizen or if the defendant used more force than the law permitted, see United States v. Perkins, supra [428 F.2d 652 (1st Cir. 1973), cert. den. 417 U.S. 913, 94 S.Ct. 2612, 41 L.Ed.2d 217 (1974)] his mistake as to the agent’s status would be no defense to an action under § 111.” 522 F.2d at 460.

The Fifth Circuit Court of Appeals stated in United States v. Young, 464. F.2d 160 (5th Cir. 1972), that even though prior decisions held knowledge of official capacity of the person assaulted to be unnecessary for conviction under 18 U.S.C. § 111, no case held the accused is absolutely liable for assault upon an officer when the accused acted from the mistaken belief that he was threatened with an intentional tort by a private citizen. The Court said:

“Our prior decisions hold that knowledge of the official capacity of the person assaulted is unnecessary for conviction under 18 U.S.C. § 111. Burke v. United States, 1968, 400 F.2d 866; Pipes v. United States, 1968, 399 F.2d 471; Bennett v. United States, 1960, 285 F.2d 567. But none of those eases holds that a defendant may be held absolutely liable for ‘assaulting’ a government officer when the defendant acts from the mistaken belief that he himself is threatened with an intentional tort by a private citizen. ‘[A] case based upon Section 111, as construed by this court, is not submitted to the jury without a charge that the “assault” must be an intentional act wilfully done without legal excuse.’ Burke, supra, 400 F.2d at 867.
When there is no doubt of the defendant’s unlawful intention, knowledge of the official capacity of the victim is invariably unnecessary; the assailant takes his victim as he finds him. But if the defendant asserts a lack of intention or wilfulness based upon ignorance of the identity of the victim and ignorance of the victim’s official privilege to interfere with the defendant’s person or freedom of movement, the jury must be allowed to consider the defendant’s evidence tending to show that he was ignorant of the official capacity of the victim. For only then can the jury give fair consideration to whether the ‘assault’ was ‘an intentional act wilfully done without legal excuse.’ Burke, supra.” 464 F.2d at 163.

In Kinney v. State, 336 So.2d 493 (Miss.1976), accused was charged with aggravated assault upon a law enforcement officer and it was contended that the verdict was against the overwhelming weight of the evidence. The question of knowledge was not considered, but the court noted that the indictment followed Mississippi Code Annotated Section 97-3-7(2) (Supp.1975), that the identity of the police officers should have been clear because they were in a marked police car with blue lights on top and shining, and that the officers were dressed in police uniforms and the car had proper police insignia.

It is understandable that, when appellant saw Officer Livingston approaching dressed in blue jeans, slipover shirt, green Army jacket and toboggan, without anything to identify himself, he reasonably could have assumed that the individual was some person unconnected with the police department, who may have been attempting to do him some bodily harm. This was at a time when appellant was seated in his automobile awaiting change of a red light and apparently not violating any law.

We hold that, under the facts of this case, the issue of whether appellant knew, or reasonably should have known, that Livingston was a police officer should have been submitted to the jury. _ Refusal to grant Instruction No. D-3 constituted reversible error.

Instructions D-l and D-2 were properly refused, but in view of the holding herein, it is not necessary to discuss same. Instructions S-3 and S-4 were properly granted had Instruction D-3 been granted the appellant.

For the error stated, this case must be and is reversed and remanded for a new trial.

REVERSED AND REMANDED.

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

Appendix to follow.

APPENDIX

“Instruction No. D-3

The Court instructs you that in order for you to find Frederick Dotson guilty of simple assault upon Troy Livingston, a police officer, you must first find beyond a reasonable doubt that Frederick Dotson did on November 2, 1976 at the time testified about purposely and knowingly attempt to assault Troy Livingston by pointing a pistol at him, and secondly you must find beyond a reasonable doubt that Frederick Dotson knew and perceived at the time testified about that Troy Livingston was a police officer who was acting within the scope of his duty and office as a police officer. And if you fail to find either one or both of these elements beyond a reasonable doubt then you are sworn to find Frederick Dotson Not Guilty.” -


text:
    Prentiss SIMMONS, Jr. v. STATE of Mississippi.
    No. 50506.
    Supreme Court of Mississippi.
    May 24, 1978.
    Varner & Parker, J. Mack Varner, Vicksburg, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, LEE and BOWLING, JJ.
   ROBERTSON, Presiding Justice, for the Court:

Prentiss Simmons, Jr. was indicted, tried and convicted in the Circuit Court of Warren County for armed robbery. He was sentenced to thirty-five years in the Mississippi State Penitentiary.

Simmons assigns as error:

I. The Court erred in allowing the State’s rebuttal witness, Phil Solomon, to testify concerning alleged admissions made to him by the Appellant.
II. The Court erred in not instructing the Jury that the testimony of Phil Solomon, relative to alleged admissions made to him by the Appellant, were to be considered only in passing upon the Appellant’s credibility and not as evidence of guilt.

About 1:30 p. m., December 3, 1976, two men, each armed with a pistol, entered Trudy’s Dress Shop in Vicksburg, Mississippi, and robbed its proprietors, Joe and Gertrude Dahlhauser, of approximately $260 in cash. The Dahlhausers and two other employees of the dress shop, Viola Tippet and Willie Mae Brock, positively identified Prentiss Simmons, Jr. as being one of the robbers.

Mrs. Dahlhauser testified that Simmons grabbed her from behind and put a pistol to the side of her head. When Mr. Dahlhauser approached from the rear of the store he was intercepted by Simmons and ordered to lie on the floor. Simmons took Mr. Dahl-hauser’s wallet from his pocket and removed approximately $200 from it, including a $100 bill and a $50 bill.

James Magee, who operated a laundromat next door, saw two men run out of the shop and turn into an alley. Magee went in pursuit and saw them go into the back of a house on nearby Green Street. Magee returned to the dress shop and informed the police where the two robbers had gone. Magee then got into his truck and went to Green Street and there observed Simmons getting into a taxicab. He informed a uniformed police officer, and that information was put out over police radio.

After receiving that information over the radio, Chief of Police Avery J. Holliday of the Vicksburg Police Department stopped the cab at the comer of Monroe and South Streets, and after finding a .22 caliber automatic pistol under the edge of the rear seat where Simmons was sitting, Holliday placed Simmons under arrest and advised him of his Miranda rights. Upon searching him, Holliday removed $126 cash, including a $50 bill.

After the State had rested, Defendant Simmons took the witness stand in his own defense. On cross-examination, Simmons testified unequivocally that he had made no statement to Lt. Phil Solomon of the Vicksburg Police Department.

Both defendant Simmons and Lt. Solomon then testified at an evidentiary hearing outside the presence of the jury. Simmons testified that the arresting officer advised him of his rights, including the right to an attorney, but that Lt. Solomon did not. Simmons stated that although he asked for an attorney before talking to Lt. Solomon an attorney was not furnished him. Still outside the presence of the jury, Simmons further stated that Lt. Solomon told him:

“ ‘I’ll help you if you tell me that you did it, and didn’t McKinley Bell help you do this?’ And I told him I didn’t have anything else to say because I didn’t do anything, and I don’t know what you are talking about. . . . ”

On cross-examination, still outside the presence of the jury, Simmons again denied making any statement to Lt. Solomon, in these words:

“I did not make the statement, period.”

The Court overruled defendant’s objection to the proffered testimony of Lt. Solomon.

Lt. Solomon then testified in rebuttal that Simmons freely and voluntarily admitted to him that he and McKinley Bell robbed Trudy’s Dress Shop, that they went to McKinley Bell’s house and divided the money, and that he, Simmons, then left in a taxicab. On cross-examination, Lt. Solomon again stated that he made no promises nor did he offer any help to Simmons if he confessed, and that Simmons’ statement was freely and voluntarily made.

The defense rested without putting Simmons on the witness stand to reiterate his testimony at the evidentiary hearing.

The proper predicate having been laid in the cross-examination of Simmons, no error was committed when Lt. Solomon was called as a rebuttal witness to impeach the credibility of Simmons.

At the evidentiary hearing, only a general objection was made to the proffered testimony of Lt. Solomon.

In Lay v. State, 310 So.2d 908 (Miss.1975), this Court said:

“It is well settled that objections to evidence must be specific as to the grounds thereof, otherwise, the objection is waived. We held in Boring v. State, 253 So.2d 251 (Miss.1971) that:
■ Objections to evidence must bring to the attention of the trial judge the specific ground on which it is contended such evidence is inadmissible so that the trial judge may determine whether or not such evidence is available to objector’s adversary.
The rule requiring specific objections is necessary because to permit litigants to hold back objections until on appeal would mean' that costly new trials would be had where valid objections could have been sustained during the trial. Roberds v. State, 187 So. 755 (Miss.1939); Kimbrall v. State, 178 Miss. 701, 174 So. 47 (1937); Dobbs v. State, 167 Miss. 609, 142 So. 500 (1932); Williams v. State, 171 Miss. 324, 157 So. 717 (1934). This rule has been recognized by the Federal Court in this jurisdiction. Gann v. Smith, D.C., 318 F.Supp. 409 (1970). 253 So.2d at 253). 310 So.2d at 912.

See also, Norman v. State, 302 So.2d 254 (Miss.1974); Stringer v. State, 279 So.2d 156 (Miss.1973).

There is no merit in the first assignment of error.

The defendant next contends that the court should have instructed the jury that Lt. Solomon’s testimony in rebuttal was to be considered only in passing upon his credibility and not as evidence of his guilt. The defendant did not ask for such an instruction, but argues that the court on its own should have so instructed the jury.

This Court answered this contention in Murphy v. State, 336 So.2d 213 (Miss.1976):

“Defendant further contends that it was the affirmative duty of the trial judge to explain to the jury that the testimony of the deputy sheriff was offered for impeachment purposes only. In Booker v. State, 326 So.2d 791 (Miss.1976) we held that a defendant is entitled to an instruction that contradictory statements may not be used as proof of guilt but may be considered only in passing on his credibility as a witness. Defendant did not request such an instruction and did not object to the testimony when it was tendered. In the absence of a request for the instruction, no error was committed by the trial court.” 336 So.2d at 216-17. (Emphasis added).

There is no merit in the second assignment of error.

The conviction and sentence are, therefore, affirmed.

AFFIRMED.

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


text:
    Douglas C. SMITH v. STATE of Mississippi.
    No. 50504.
    Supreme Court of Mississippi.
    May 31, 1978.
    Robert M. Acevedo, Biloxi, for appellant.
    A. F. Summer, Atty. Gen., by Henry T. Wingate, Special Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and WALKER and COFER, JJ.
   AFFIRMED.


text:
    CITY FINANCE COMPANY of Mississippi v. Samuel ECHOLS.
    No. 50362.
    Supreme Court of Mississippi.
    May 31, 1978.
    Johnson & Adams, David E. Adams, Sen-atobia, for appellant.
    Smith & Phillips, D. Briggs Smith, Jr., Batesville, for appellee.
    Before PATTERSON, C. J., and LEE and BOWLING, JJ.
   AFFIRMED.


text:
    Mrs. J. Doyle SARTAIN v. Mrs. Mary SANDERS.
    No. 50324.
    Supreme Court of Mississippi.
    May 31, 1978.
    Jon M. Barnwell, Greenwood, for appellant.
    Ottis B. Crocker, Jr., Bruce, for appellee.
    Before ROBERTSON, P. J., and LEE and BOWLING, JJ.
   AFFIRMED AND REMANDED WITH DIRECTIONS.

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

COFER, J., took no part.


text:
    Willie B. MOSBY et al. v. H. G. FERGUSON, Clerk of the Chancery Court of DeSoto County, Administrator of the Estate of Harry J. Garner, Deceased.
    No. 50118.
    Supreme Court of Mississippi.
    May 31, 1978.
    Ben Thomas Cole, II, Holly Springs, Francis B. Stevens, Washington, D. C., Nancy Blair Pace, Barry H. Powell, Jackson, for appellant.
    No brief filed for appellee.
    Before ROBERTSON, P. J., LEE and BOWLING, JJ.
   REVERSED AND REMANDED.

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

COFER, J., took no part.


text:
    CLINTON MUNICIPAL SEPARATE SCHOOL DISTRICT et al. v. FLINT BROTHERS CONSTRUCTION COMPANY and Travelers Indemnity Company of Hartford, Connecticut.
    No. 50230.
    Supreme Court of Mississippi.
    May 31, 1978.

      Pox & Gowan, John H. Fox, III, Jackson, for appellant.
    Butler, Snow, O’Mara, Stevens & Canna-da, George H. Butler, Robert C. Cannada, Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and COFER, JJ.
   AFFIRMED.

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


text:
    George Frank HOLLOWELL and Martha Phillips Hollowell v. Mrs. Mary T. VANDEVENDER, Registrar and Board of Election Commissioners of Issaquena County, Mississippi.
    No. 50345.
    Supreme Court of Mississippi.
    May 31, 1978.
    Carlton & Hollowell, George F. Hollowell, Jr., Greenville, for appellants.
    Clements & Clements, E. C. Clements, Rolling Fork, for appellee.
    Before SMITH, SUGG and BROOM, JJ.
   SMITH, Presiding Justice,

for the Court:

George F. Hollowell and his wife, Martha Phillips Hollowell, appeal from a judgment of the Circuit Court of Issaquena County which affirmed an order of the Board of Election Commissioners of that county denying the Hollowells the right to register as voters in Issaquena County.

At the conclusion of an evidentiary hearing conducted before the Election Commission on November 3, 1975, that body found upon the evidence adduced that the Hollo-wells were not residents of Issaquena County and were not entitled to be registered as voters in that county.

Among other things reflected by the evidence and found by the Commission was that in each of the years, 1973, 1974, 1975 and 1976, the Hollowells applied for, and had obtained pursuant to their applications, tax exemptions upon their homestead at Greenville, in Washington County. This was not denied but was, in fact, admitted.

We have examined the record of the evidence adduced before the Election Commission, and have concluded that the Commission’s findings of fact were supported by substantial evidence and were neither arbitrary nor capricious. Moreover, the order of the Commission denying registration to the Hollowells as Issaquena County voters was within its power to make and was not illegal or unconstitutional.

Although both signatures of the Hollo-wells were affixed to each of the Washington County applications for homestead exemption on their Greenville home (none was filed in Issaquena County) by Mrs. Hollowell, Mr. Hollowell testified that he had known of the making of these applications and, of course, had received the benefit of the exemptions. The Greenville home was described in the Hollowells’ application as “my home” and represented as “this same residence as the tax situs for all motor vehicles owned . . . ” and, under the heading “Above Description of Property in Homestead” represented:

(1) “This is the bona fide and only home of my family group, wherein we actually reside, and did on January 1,”, followed by the current year. Each application shows on its face that the applicant appeared in person before the assessor or the deputy and swore that all the statements contained in it were true and correct. (Emphasis added).

Having applied for and knowingly received the tax exemption on their Green-ville, Washington County home, upon the basis of their sworn representations that it was the applicants bona fide home and only home, applicants are precluded from asserting in these proceedings that these representations were not true and that their home or domicile was not, as represented, in Washington County but was in Issaquena County.

As the learned circuit court judge observed in his opinion upholding the action of the Election Commission, this case leaves uninfringed the Hollowells’ right to vote in Washington County, the county of their residence and domicile at the time of the proceedings before the Election Commission.

AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


text:
    Allen WALKER v. STATE of Mississippi.
    No. 50495.
    Supreme Court of Mississippi.
    May 31, 1978.
    Parker, Averill, Funderburk & Butts, Paul S. Funderburk, Tupelo, for appellant.

      A. F. Summer, Atty. Gen., by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, SUGG and BROOM, JJ.
   SMITH, Presiding Justice,

for the Court:

Allen Walker was convicted of grand larceny in the Circuit Court of Pontotoc County and sentenced to three years imprisonment. On appeal he assigns five alleged errors as requiring reversal.

On July 24, 1976, Walker drove from Tu-pelo to Pontotoc for the purpose of having a new battery put in his watch. In the car with him were two friends and a third person who had been “picked up” and with whom they had not been previously acquainted. The name of this person is not known and he is referred to in the record as “Bub” or “Hub.” At Shannon’s Jewelry Store in Pontotoc, Walker went into the store, leaving his friends and Bub in the car. He walked back to the watch repair counter and asked the watch repairman, who was also one of the owners of the store, to test the battery in his watch. Shortly thereafter Bub entered the store.

Subsequently, the other owner of the store returned from lunch and asked Bub if he needed any assistance. He replied in the negative. During all of this time appellant had been at the watch repair counter watching the repairman attempt to fix his watch.

Meanwhile, a young woman had come into the store to pick up a ring she had left to be repaired and the owner (who had just returned from lunch) went to the back of the store to get it, leaving the young woman and Bub standing together at the counter. The repairman having determined that the watch would have to be repaired and that this would take some time, asked Walker to leave it and that he could pick it up later in the afternoon. Walker gave the repairman his name, Allen Walker, and left. At some time a woman employee of the store had left for lunch. Bub had also left the store.

Leaving the store Walker noticed that his car was running hot and that steam was rising from under the hood. Walker was reared in Pontotoc and his mother and father and other relatives still lived there and were known in the community. Walker drove his steaming automobile to the home of his brother-in-law, James Peques, who lived in Algoma, Mississippi, which is approximately five miles outside of Pontotoc.

After being in the back of the store for several minutes, the owner returned to the front with the young woman’s ring. As she was leaving the owner noticed that a tray of men’s diamond rings was missing from a front counter. In order to reach the rings, it would have been necessary for a person standing at the counter to reach across the counter top, unlatch a door at the back, and reach into the counter. The owner asked the young woman if she had observed anything or if she knew Walker or the other man, referring to Bub. She answered these questions in the negative and said that she knew nothing about the missing rings.

When Walker arrived at his brother-in-law’s house he parked his car in the yard and began removing the defective radiator so that it could be sent to town to be repaired. As Walker worked on his car there were several of his acquaintances who were sitting around talking and drinking beer. Three of these people said that Bub had a small box of rings which he had tried to sell.

James Peques, Walker’s brother-in-law, was preparing to go in to town to wash clothes at a Laundromat and Walker asked him if he would take the radiator to be repaired. Peques told him that he would do so and also that he would go by the jewelry store and pick up Walker’s watch. At some time while Peques was absent on these missions, Bub left with one James Williamson and has been neither seen nor heard of since.

Peques duly went to the jewelry store for the watch but the owner would not let him have it. When Peques returned to his home bringing the radiator, which had been repaired, Walker put it back on his car and left to drive to Tupelo, with his two friends. On the way he was stopped and returned to Pontotoc, where he was arrested and charged with grand larceny.

Although five alleged errors have been assigned, it is necessary to discuss only one: (1) Did the lower court err in refusing appellant’s request for a peremptory instruction?

At the trial, Walker took the stand and testified as a witness in his own defense. His testimony agreed with the above statement of what had occurred. He denied that he had taken the rings and, in fact, it is difficult to see how it would have been possible for him to have done so, since he was at all times at the repair counter, talking to the watch repairman. It is suggested that Bub took the rings and that the evidence was sufficient to support a finding that Walker was implicated with him in the theft. If it can be said to have been established that it was, indeed, Bub who took the rings, there is no evidence that Walker was aware of it or had any part in the theft. As a matter of fact, after discovering that the rings were missing, Walker was the only person who had been in the store who was known to the owners, because he had voluntarily given his correct name when he left his watch for repair.

Moreover, it is difficult to see how the theft could have been accomplished by Bub in view of the contortions necessary to reach the rings, when the whole place was in plain view of the watch repairman, as well as the woman customer, while he was in the store. The owners let the young woman leave, without a search and without obtaining her name, saying that she had on tight clothes and they thought that she had no place where she could have concealed the rings. It was learned later that she was a local person named Thelma Heard, but she is not shown to have had any connection with Walker.

Clearly, the State’s case was entirely circumstantial.

In Hogan v. State, 127 Miss. 407, 90 So. 99 (1921) this Court stated:

‘While circumstantial evidence is in its nature capable of producing the highest degree of moral certainty, yet experience and authority both admonish us that it is a species of evidence in the application of which the utmost caution and vigilance should be used. . . . It is always insufficient where, assuming all to be proved which the evidence tends to prove, some other hypothesis may still be true, for it is the actual exclusion of every other hypothesis which invests mere circumstances with the force of truth. Whenever, therefore, the evidence leaves it indifferent which of several hypotheses is true, or merely establishes some finite probability in favor of one hypothesis rather than another, such evidence cannot amount to proof, however great the probability may be.’

(127 Miss. at 411, 90 So. at 100).

The Court concluded by saying:

To say the most of it, conceding the facts testified to in the record all to be true, and drawing all logical deductions therefrom, it only shows a mere probability that the defendant was the guilty agent. It certainly does not comply with the rule of excluding every other reasonable hypothesis, nor does it remove all reasonable doubt as required by law.

(127 Miss. at 412, 90 So. at 101).

This Court said in Sorrells v. State, 130 Miss. 300, 94 So. 209 (1922):

“. . . The facts may raise a suspicion; ‘but the wisdom of the law is such that it refuses to allow any person to be punished for a crime, however strong and well-founded may be the suspicion.’ There must be proof.”

(130 Miss. at 304, 94 So. at 209).

In the case of Williamson v. State, 229 Miss. 305, 90 So.2d 657 (1956), Williamson was convicted of grand larceny on the theory that he had stolen $140.00 from one Underwood after first having “doped” his bottle of coca cola. The case rested entirely on circumstantial evidence. Williamson appealed on the ground that the trial court erred in failing to grant his request for a peremptory instruction of not guilty. This Court reversed and discharged Williamson, saying:

. When a case is based on purely circumstantial evidence the proof must be sufficient not only to convince the jury beyond a reasonable doubt of the guilt of the accused, but they must be so convinced to the exclusion of every other reasonable hypothesis consistent with his innocence. Obviously there are a number of other reasonable hypotheses as to what may have become of the billfold in question in the instant case. .

(229 Miss. at 314-315, 90 So.2d at 661).

There is no evidence that Walker personally took the rings and he was, throughout his stay in the store, under the observation of the watch repairman. Morever, he had left his correct name with this individual. The next question is, therefore, whether the evidence was sufficient to exclude every reasonable hypothesis except that Bub took the rings, rather than the young woman or some other person, and, if it was sufficient as to Bub’s guilt, was it also sufficient to exclude every reasonable hypothesis except that Walker was involved with him in the theft. We have concluded that the evidence was not sufficient, judged by the above standards, to implicate Walker in the theft of the rings and that the requested peremptory instruction of “not guilty” should have been granted.

THE JUDGMENT OF CONVICTION. IS REVERSED AND THE APPELLANT IS DISCHARGED.

PATTERSON, C. J., ROBERTSON, P. J„ and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.