text:
    Dolly Jacob PIKE et al. v. GODCHAUX-HENDERSON SUGAR CO., INC., et al.
    No. 10050.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.
    Daniel E. Becnel, Jr., C. William Bradley, Jr., Reserve, for plaintiffs-appellees.
    Carville & Edrington, Richard L. Edring-ton, La Place, for plaintiff-appellant.
    Claude D. Vasser, New Orleans, for defendants-appellees.
    Before GULOTTA, SCHOTT and BEER, JJ.
   GULOTTA, Judge.

In this workmen’s compensation declaratory judgment suit, in which the defendant-employer and its insurer seek to ascertain entitlement to death benefits between contending parties, judgment was rendered dividing all future death benefits between a surviving spouse, Linda Fenton Jacob (on one hand) and two minor children (on the other hand) born from decedent’s earlier marriage. At the time of decedent’s death the minors were approximately fourteen (14) and nine (9) years of age.

In Jacob v. Godchaux-Henderson Sugar Co., Inc., 350 So.2d 274 (La.App. 4th Cir. 1977), writ refused, 352 So.2d 238 (La.1977), we concluded the plaintiff-widow, (second wife, who alone sought relief), was entitled to receive workmen’s compensation death benefits. A subsequent suit filed by decedent’s minor children for death benefits was dismissed on a plea of prescription. In the interim the minors were permitted, by leave of court, to intervene in the surviving spouse’s suit for death benefits although the judgment in the widow’s suit was pending on appeal in this court. In a subsequent hearing on exceptions to the order allowing the intervention, judgment was rendered in the trial court permitting the intervention by the minors in the widow’s suit and recognizing the “right of the minors to proceeds” under the Workmen’s Compensation Act. No appeal was taken from that judgment. Thereafter, a declaratory judgment was sought to establish the rights of contending parties.

In the judgment on appeal the trial judge ordered that all future workmen’s compensation death benefits be divided “ . between Linda Jacob by one payment and to the minors Randay and Shane Jacob through their attorney of record.” In the earlier Jacob v. Godchaux-Henderson Sugar Co., Inc. suit, supra, the widow alone had been awarded thirty-two and one-half percent (32V2%) of the average weekly wages of the decedent in accordance with LSA-R.S. 23:1232(1).

In this appeal, the widow, Linda Fenton Jacob, relying on LSA-C.C.P. arts. 1031 and 1033 contends that because the judgment permitting the intervention and recognizing the minor’s rights to workmen’s compensation proceeds was rendered (January 27, 1978) after writs in her compensation suit were denied in the Supreme Court (November 23, 1977), the intervention was untimely. The widow further contends that the judgment reducing her percentage of death benefits constitutes a money judgment which went beyond the relief sought in the petition for declaratory judgment and as a result she was denied due process of law by depriving her of property without notice and without an opportunity to be heard.

We reject the widow’s claim, raised in this appeal, complaining of the untimeliness of the intervention in the trial court. The judgment permitting the intervention and recognizing the minors’ rights to workmen’s compensation death proceeds was rendered after a hearing and notice of that judgment was sent to all parties on January 30, 1978. No appeal has been taken from that judgment and it has now become final. A party cannot be allowed to seek relief in this appeal from an earlier judgment when the time has expired for perfecting that appeal and the earlier judgment has become final.

We reject further the widow’s claim that the judgment appealed from is a money judgment reducing her portion of death benefits and went beyond the relief sought in the petition for declaratory judgment without affording her notice and an opportunity for a hearing, thereby depriving her of property without due process of law.

The motion for declaratory judgment seeks “an appropriate order which will prevent any possible payment by defendant (Godchaux-Henderson Sugar Co., Inc. and its insurer) in excess of their legal liability under the Louisiana Workmen’s Compensation Act, . . . ” We do not construe a judgment which divides future workmen’s compensation death benefits, and thereby limiting and setting forth the insurer’s liability, inconsistent with relief sought in the declaratory judgment motion. The judgment rendered appears to be consistent with the relief sought. The contending parties were aware, or should have been aware by a mere reading of the motion for declaratory judgment, of the issues involved, the relief sought and the effect of granting that relief on each of the parties in interest.

Moreover, attached to the motion for declaratory judgment was a show cause order. A copy of that order and the motion was sent to the widow’s attorney of record. Furthermore, the judgment indicates that all parties in interest were represented and present at the hearing. Under the circumstances we find no merit to the widow’s claim of deprivation of property without due process of law.

Having so concluded, we affirm the judgment of the trial court.

AFFIRMED.

      . Not contested is the fact that in divorce proceedings between the decedent and the mother, Dolly Millet Jacob Pike, the custody of the minor children was granted to decedent.

      . See Pike v. Godchaux-Henderson Sugar Co., Inc., 354 So.2d 724 (La.App. 4th Cir. 1978).

      . The order permitting the intervention was signed on April 13, 1977. The appeal of the widow’s suit was lodged in this court on March 10, 1977 and the judgment in favor of the widow became final on November 23, 1977.

      . This judgment was rendered on January 27, 1978.

      . LSA-C.C.P. art. 1031 reads as follows:
      “Art. 1031. Incidental demands allowed. A demand incidental to the principal demand may be instituted against an adverse party or against a third person.
      Incidental demands are reconvention, intervention, and the demand against third parties.”
      Art. 1033, in pertinent part, reads as follows:
      “Art. 1033. Delay for filing incidental demand.
      An incidental demand may be filed without leave of court at any time up to and including the time the answer to the principal demand is filed.
      An incidental demand may be filed thereafter, with leave of court, if it will not retard the progress of the principal action, or if permitted by Articles 1066 or 1092. . ”

      . Norah v. Crawford, 218 La. 433, 49 So.2d 751 (1950); Succession of Favalora, 169 So.2d 197 (La.App. 4th Cir. 1964), writ denied, 247 La. 355, 171 So.2d 476 (1965); Roddy v. Independent Oil and Chemical Workers U., 233 So.2d 714 (La.App. 4th Cir. 1970).

      . Mongogna v. O’Dwyer, 204 La. 1030, 16 So.2d 829 (1943); Smith v. Department of Public Safety, 254 So.2d 515 (La.App. 4th Cir. 1971).


source: Caselaw Access Project

author:
LEMMON, Judge.
      SAMUEL, Judge,

license: Public Domain

text:
    Emily WILLIAMS v. AETNA INSURANCE COMPANY et al.
    No. 9761.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 8, 1979.

      Hackman & Lewis, Gordon Hackman, Boutte, for plaintiff-appellant.
    Schafer & Schafer, John J. Messina, New Orleans, for defendants-appellees.
    Before SAMUEL, LEMMON and SCHOTT, JJ.
   LEMMON, Judge.

This appeal presents the first opportunity for appellate consideration of a dismissal of an appeal based on late payment of estimated costs of appeal after expiration of the 20-day period for payment provided by C.C.P. art. 2126, as amended by Act No. 198 of 1977.

After plaintiff’s tort suit was dismissed on an exception, she obtained a timely order of appeal on January 19, 1978. She also furnished an appeal bond (signed by her and a surety) in the amount of $1,000.00, although security was no longer required for a devolutive appeal. See C.C.P. art. 2124, as amended in 1977.

On January 23, 1978 the clerk sent a notice by certified mail to plaintiff’s attorney of the amount of estimated costs. The notice was received on January 24, but plaintiffs counsel did not pay the estimated costs until March 17 (which was the return day originally set by the trial court).

On March 28 defendant filed a motion to dismiss the appeal, based on plaintiff’s failure to pay the estimated costs within the 20-day delay provided in C.C.P. art. 2126. After a hearing the trial court granted the motion to dismiss the appeal on May 22, 1978. Plaintiff appealed from that judgment on May 30, 1978, and the judgment dismissing the appeal is now before us for review.

I

Defendant argues that dismissal was the appropriate action under the circumstances of this case because plaintiff’s counsel “flagrantly disregarded” most of the court orders relating to appearances and filing of memoranda. However, the appropriate action when an attorney fails to obey a trial court’s notice to attend a hearing or to file a memorandum is citation of the attorney for contempt and not dismissal of the client’s appeal. Therefore, an attorney’s disregard for court orders during the proceedings leading up to the judgment appealed from is not a proper basis, standing alone, for dismissal of the appeal from that judgment.

II

C.C.P. art. 2161 provides that no appeal shall be dismissed because of an irregularity, error or defect, unless imputable to the appellant. This article has been construed to authorize dismissal of an appeal when there is an irregularity, error or defect imputable to the appellant. Thus, prior to January 1, 1978 (the effective date of the 1977 amendment to C.C.P. art. 2126) appeals were frequently dismissed when the record on appeal was not lodged by the return day because the costs of appeal had not been paid within the period provided in C.C.P. art. 2126 (which, prior to the effective date of the 1977 amendment, was three days before the return day), even if the fault was not that of the appellant, but rather that of the appellant’s attorney, since the attorney’s fault was deemed imputable to the appellant.

One basis for the 1977 legislative changes in appellate procedure, proposed by the Louisiana State Law Institute, was the recognition that the return day was designed as a deadline for the clerk to lodge the record and that a separate and distinct period should be specified for payment of costs by the appellant. Lemmon & Maraist, Simplifying Appellate Procedure, XXV La. Bar Jour. 193 (1977). C.C.P. art. 2126 was accordingly amended to provide for notice of the estimated amount of costs due (another deficiency under prior law) and to provide a period of 20 days from the mailing of the notice for payment of this amount.

Significantly, the amended article also eliminated mandatory dismissal as the only available penalty when costs were not paid timely. Since such failure was often the result of a busy attorney’s oversight or a careless attorney’s negligence, and since dismissal of the appeal often penalized an innocent client, the article was expanded to give the trial court authority, according to the circumstances, to extend the time for payment, or to impose a fine on the appellant or his attorney, or to dismiss the appeal.

It is evident that the 1977 amendment to C.C.P. art. 2126, which permits a fine as an alternative to dismissal of the appeal, was designed to provide for flexibility in penalties in recognition of the public policy of this state that appeals are favored and should be maintained whenever possible. Significantly, the amendment also provides for imposition of the penalty on the offender rather than on an innocent person. Therefore, fault of the appellant’s attorney can no longer reasonably be imputed to the appellant, since there is a separate penalty available when the fault is that of the attorney.

Of course, imposition of some penalty is necessary to insure prompt payment of costs and thus to promote prompt and efficient handling of appeals. However, since maintenance of appeals is always favored, the most extreme penalty of dismissal should be reserved for extreme situations, such as when the appeal has clearly been abandoned or the litigant refuses or fails without justification to pay costs or otherwise to proceed with the appeal, and the fault is therefore clearly that of the appellant.

In the present case there is no indication that the tardy payment was the fault of the appellant. Significantly, the costs were paid (although 32 days late) before filing of the motion to dismiss. This payment was thus a meaningful manifestation of the litigant’s intention not to abandon the appeal. Also noteworthy was the fact that the litigant herself had executed an appeal bond which (though unnecessary) also demonstrated her intention to follow through with the appeal.

This case, therefore, is one of simple tardiness, which, of course, should not be condoned, but which should be punished (now that more, appropriate sanctions are available to punish the offender who should suffer the penalty) by a penalty which does not redound to the extreme detriment of the innocent litigant.

Under the circumstances of this case, when considered in relation to the evident intention of the 1977 amendment to C.C.P. art. 2126 and to the long-standing public policy that maintenance of appeals is favored, dismissal of the appeal is too extreme a penalty and, more importantly, penalizes the wrong person. The appeal must be reinstated, but since imposition of a more appropriate penalty falls within the wide discretion of the trial court, the motion which led to the dismissal is remanded for imposition of an appropriate penalty.

DECREE

The judgment of the trial court dismissing the appeal is set aside and the appeal reinstated. The motion to dismiss the appeal is remanded to the trial court for imposition of an appropriate penalty, and the clerk of this court is ordered to place the reinstated appeal on the calendar for disposition when this judgment becomes final and definitive. Assessment of court costs will await final disposition of the action.

JUDGMENT DISMISSING APPEAL SET ASIDE, APPEAL REINSTATED, MOTION REMANDED.

SAMUEL, Judge,

concurring.

In pertinent part, Code of Civil Procedure Article 2126, as amended by Act 198 of 1977, provides: “Within twenty days of the mailing of notice [of the estimated costs], the appellant shall pay the amount of the estimated costs to the clerk.” (emphasis added). This provision requires the payment of estimated costs within the twenty day period. Upon failure to pay within that time, and after hearing of a motion filed by the clerk or by any party, the trial judge, within his discretion, may: “(1) Extend the time within which the costs may be paid, not to exceed thirty days with or without penalty upon appellant or his attorney; or (2) Impose a fine, not to exceed one hundred dollars, upon the appellant, or his attorney, or both; or (3) Dismiss the appeal.”

Despite the fact that in the instant case the estimated costs were paid some 32 days late, I agree with the result reached by the majority. It appears to me that a motion to dismiss filed after the estimated costs have been paid comes too late. Appeals being favored, once those costs actually have been paid, prior to the filing of the motion, the question of payment becomes moot.

However, I only concur because I disagree with the basis for the majority’s conclusion, that the “fault of the appellant’s attorney can no longer reasonably be imputed to the appellant, since there is a separate penalty available when the fault is that of the attorney.”

The action of his attorney must be the action of the client. That is the very purpose of having an attorney, and it is the rule followed throughout the trial and appeal in any case. It was the rule adhered to by the jurisprudence prior to the 1977 amendment and I see nothing in the amendment which indicates any desire to change that rule.

The fact that the amendment permits the trial judge to impose a fine upon the appellant or his attorney, or both, simply gives the trial judge a wider field to be used in making the penalty he imposes fit the facts of the case before him. That the judge may penalize the attorney does not require that he not dismiss the appeal when the estimated costs have not been paid timely. Furthermore, it appears to me that the reasoning of the majority would destroy one of the purposes of the amendment, to accelerate appeals and avoid what has too frequently happened in the past, unconscionable delay in lodging the record on appeal.

I respectfully concur.

      . The trial judge, in granting the order of appeal, properly struck out that portion of the motion relating to the furnishing of security.

      . Defendant points out plaintiffs counsel failed to appear at a rule to traverse an order to proceed in forma pauperis; appeared for a pretrial conference held at his request, but failed to file a pre-trial memorandum as ordered; waived appearance at the hearing on the decli-natory exception; and failed to appear at the hearing on the application for new trial.

      . This change was intended to benefit the client, as well as the usually diligent lawyer who may slip once, while retaining penalties for chronic offenders.

      . This comment should not be construed to mean that an appellant or his attorney can purge himself of fault by late payment prior to the filing of a motion based on late filing and thus escape any penalty. A penalty may still be imposed, in the absence of justifiable circumstances, but the appropriateness of the penalty must be determined in the light of all circumstances. The fact of payment (although late) and the degree of tardiness are proper circumstances to consider in determining the appropriate penalty.

      . We emphasize that timely payment of the costs of appeal is a procedural matter, involving a detail necessary for efficient court administration, and not a substantive matter involving vesting of jurisdiction or finality of judgments or running of prescription.

      . Lemmon, J., notes that the preferable action is for this court to render judgment fixing the next most severe penalty, but concurs in the result in order to prevent further delay in disposition of the now-reinstated appeal.


author: LEE, Justice,

text:
    MARCOIN, INC. v. Rebecca HAMMOND and Louis G. Hammond, Co-Administrators of the Estate of Harold G. Hammond, Deceased.
    No. 51002.
    Supreme Court of Mississippi.
    March 28, 1979.
    Calvin L. Wells, Wells, Downey & Wicker, William B. Wicker, Jackson, for appellant.
    Waller & Waller, Bill Waller, Jr., L. Bre-land Hilburn, Jackson, for appellees.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   LEE, Justice,

for the Court:

Co-administrators of the Estate of Harold G. Hammond, Deceased, sued Marcoin, Inc. in the Chancery Court of the First Judicial District, Hinds County, upon a license contracts) for the value of certain accounts owned by Hammond and the value of a license issued to him by Marcoin, Inc. The chancellor (Honorable J. C. Stennett) entered a decree in favor of the Hammond estate for the sum of thirty-six thousand six hundred sixty-one dollars forty cents ($36,-661.40) and Marcoin, Inc. [Marcoin] has appealed. We reverse in part.

The threshold question is whether or not a clause in the contract(s) designated “Termination by Death” and which provides for sale of the Hammond accounts upon his death should be construed to mean that appellant is required to pay the deceased’s estate a certain amount for the value of the license in addition to the value of the accounts. Our construction of the contract obviates the necessity of considering and discussing other assignments of error.

Harold G. Hammond entered into two (2) license agreements with Marcoin on September 1, 1973, wherein he was to operate accounting/management services for service stations (MMS) and for small businesses (BUSCO). The licensing agreements provided that Marcoin assign and transfer all of its existing clients and accounts in Hinds, Madison, Rankin and Warren Counties to Hammond for which he was to pay Marcoin an amount set forth in a formula stipulated in the agreements. Hammond executed two (2) notes in favor of Marcoin in the sum of nineteen thousand one hundred eighty-five dollars ($19,185.00) and four thousand two hundred fifty dollars ($4,250.00). The license agreements further provided that Hammond could not sell or assign the licenses to any person except upon written permission of Marcoin, that the agreements were purely licensor-licen-see relationships, and that termination of the agreements for any reason prohibited Hammond from engaging in a competitive business in the area for a period of two (2) years following such termination.

On June 13, 1976, Hammond died. Appellant considered the license agreements terminated, operated the business for two and one-half (2%) months and then sold same to one Wiley Perry at a consideration of twenty-eight thousand three hundred forty dollars ($28,340.00) for the existing contracts and thirteen thousand three hundred twenty-five dollars ($13,325.00) for the licenses. The licensed area was extended to cover ten (10) counties in Mississippi.

The license agreements expressly provided for the termination of said licenses upon the death of a sole licensee and Marcoin tendered to the Hammond estate nineteen thousand four hundred eighty-nine dollars ($19,489.00) as the amount due it, according to the formula contained in the “Termination by Death” clause. At trial, the parties stipulated that the accounts had a value of twenty-four thousand seven hundred eighty dollars ($24,780.00). The chancellor found that the appellant was indebted to said estate in the sum of $24,780.00, plus $13,325.00 (value of the licenses). He deducted from the total of those figures the balance due on the two notes of September 1, 1973, and entered judgment for appellees in the sum of $36,-661.40. Since a tender of $19,489.00 had been made by Marcoin to appellees, the chancellor held that interest was payable only on the amount of the judgment in excess of the tender figure.

The question is clearly presented here as to whether the principle of freedom of contract governs, or whether appellees are entitled to relief in equity because the “Termination by Death” clause is the result of grossly unequal bargaining power on the part of Marcoin. Appellant relies upon the principle of freedom of contract, argues that the “Termination by Death” provisions of the license agreements between the parties are clear, definite, unambiguous, and are controlling. In Hoerner v. First National Bank of Jackson, 254 So.2d 754 (Miss. 1972), this Court stated:

“The cardinal rule of construction of contracts is, of course, to ascertain and give effect to the mutual intentions of the parties and to reject a construction which leads to unfair or unjust results unless the terms pointing thereto are unambiguous and express.” 254 So.2d at 759.

In World Fire & Marine Ins. Co. v. King, 187 Miss. 699, 191 So. 665 (1940), it was stated:

“It is fundamental to the right of contract that parties may make the contract evidencing their transaction, in writing, and that the terms of the contract, unless prohibited by law, must be enforced by the courts as written. Parties to a contract each have rights therein, and the rights are to be determined by the terms of the contract, and if the terms of the contract are not contrary to law or public policy, the courts must enforce them as written.” 187 Miss. at 719,191 So. at 672.

The contract principle set forth in the above cases has been approved by this Court many times. In the present case, the “Termination by Death” clause specifically set forth the rights of the parties in the event of Hammond’s death. Hammond had the right to include other licensees in the contract(s) with him, which inclusion would have maintained the contract(s) in force after his death. He chose not to do so. Upon Hammond’s death, appellant, or the new licensee, was required, within sixty (60) days, to pay the legal representative of the estate for the accounts based on a simple formula. That formula did not set a value on, or provide payment for, the licenses granted to Hammond. The terms of the clause are clear, express and unambiguous.

Appellees contend that the clause in question is the result of grossly unequal bargaining power on the part of Marcoin, and should be declared void as against public policy, or should be modified to include payment for the licenses. They rely upon Shell Oil Co. v. Marinello, 63 N.J. 402, 307 A.2d 598 (1973). Shell Oil Company had the right to terminate, almost at will, a dealership agreement with Marinello. The New Jersey court found that Shell had terminated the dealership without good cause, stating that “Where there is grossly disproportionate bargaining power, the principle of freedom to contract is nonexistent and unilateral terms result.” 63 N.J. at 408, 307 A.2d at 601. Public policy was involved, since distribution of motor vehicle fuel affected the public in light of the nation’s economy depending on such fuels.

Marinello is distinguished from the case at bar. The clause in question is not available to Marcoin, either at will or on good cause. It is limited to a specific fact situation and provides for a certain result in the event of death occurring during the term of the agreements. The clause further provides that the license agreement will not terminate, if the second party is a partnership or corporation.

We are of the opinion that freedom of contract controls the facts of the present case, that this is not a proper one for intervention of equity, nor is the principle of recoupment applicable.

The parties stipulated, and the chancellor found, that the value of the Hammond accounts on the date of his death, June 13, 1976, was $24,780.00. He also found that Hammond owed appellant the sum of three thousand three hundred eighty-three dollars twenty-four cents ($3,383.24), which amount deducted from the value of the accounts leaves a net sum of twenty-one thousand three hundred ninety-six dollars seventy-six cents ($21,396.76) due appellees. The chancellor further held that appellees were not entitled to interest on the sum of $19,489.00, which was tendered to appellees by appellant and was refused by them. However, appellees were under no duty to accept less than the amount due them ($21,396.76) and they were entitled to lawful interest on said amount from August 13, 1976. Holmes v. Bates, 218 Miss. 233, 67 So.2d 273 (1953).

The judgment of the trial court is reversed and judgment is entered here for appellees in the sum of $21,396.76 with lawful interest from and after August 13,1976.

AFFIRMED IN PART AND REVERSED IN PART.

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

      . “B. TERMINATION BY DEATH:

      In the event this Agreement is terminated by reason of the death of Second Party, if Second Party is an individual, First Party or new Licensee shall purchase Second Party’s accounts and Second Party’s legal representative shall sell said assets. First Party guarantees that the purchase price shall be paid to the legal representative of the deceased within sixty (60) days based on the total of the last six (6) months verified and audited franchise reports submitted to First Party, less advanced billings existing on date of death. This Paragraph 16B to purchase Second Party’s accounts shall not apply where Second Party consists of more than one individual, or is a partnership or corporation.”

      . The doctrine to equitably allow a distributor reasonable time to recover his expenditures when a manufacturer, after having required the distributor to make large investments, terminates the agreement without good cause. Ag-Chem Equipment Co., Inc. v. Hahn, Inc., 480 F.2d 482 (8th Cir. 1973).


text:
    James R. WEST, Charles Hicks, and George Walley v. GREENE COUNTY BOARD OF SUPERVISORS.
    No. 51322.
    Supreme Court of Mississippi.
    March 28, 1979.
    Ladner & Emil, Gerald R. Emil, Gulfport, for appellant.
    Curtis Breland, Edwin C. Hardin, Leakes-ville, for appellee.
    Before ROBERTSON, WALKER and LEE, JJ.
   LEE, Justice,

for the Court:

James R. West, Charles Hicks and George Walley, taxpayers and residents of Greene County, protested (without success) the issuance of tax anticipation notes by the Greene County Board of Supervisors, the matter was appealed by them to the Circuit Court of said county, and subsequently transferred to the chancery court. The chancellor entered a decree in favor of the Greene County Board of Supervisors and the taxpayers have appealed here, assigning four (4) errors committed by the lower court.

At the April, 1977 meeting of said Board of Supervisors, an order was entered initiating the procedure for issuance of one hundred seventy-five thousand dollars ($175,-000) notes in anticipation of tax collections for the purpose of paying operating expenses. Publication of intention to issue the notes was made and, at the May, 1977 meeting, petitions protesting issuance of same were filed with the Board. The petitions were referred to the Circuit Clerk of Greene County with the request that he canvass the registration books and determine the number of qualified electors in the county and the number of qualified names affixed to the petitions. The Circuit Clerk certified to the Board of Supervisors that there were six thousand five hundred sixty-four (6,564) qualified electors in the county and that thirteen hundred ninety-eight (1,398) valid signatures appeared on the petitions. Those names constituted 21.30% of the qualified electors in said county. Mississippi Code Annotated Section 19-9-27 (1972) provides that twenty percent (20%) of the qualified electors of a county protesting issuance of such notes requires an election on the proposition.

After receiving the certification from the circuit clerk, the matter was taken under advisement by the Board. It recessed until May 18 and again to May 20. On the latter date, the Board examined the petitions and adjudicated that three hundred twenty-eight (328) names on the petitions were duplicates. Those names were deleted from the petitions, reducing the signatures to one thousand seventy (1,070) valid names then appearing thereon, which constituted 16.3% of the qualified electors in the county. The Board then entered an order directing issuance of the notes without calling for an election on the proposition. The appellants prepared a bill of exceptions and requested the president of the Board to sign same, which he declined to do. The unsigned bill of exceptions was filed and is a part of the record, along with the petitions, the minutes of the Board of Supervisors and the pleadings.

I.

Did the chancellor err in refusing to re-cuse himself in the trial of the cause?

The taxpayers appealed from the Board of Supervisor’s order to the circuit court. Honorable Merle Palmer, the circuit judge, recused himself stating as reason that his court reporter was paid pro rata from the counties in the district, and she had an interest in the outcome of the case, which affected him. He designated Circuit Judge Lester Williamson to sit as special judge. Subsequently, Judge Williamson transferred the cause to the chancery court presided over by Chancellor Rex Gordon. Mississippi Code Annotated Section 9-1-11 (1972) sets forth the instances in which a judge should not preside on a case:

“The judge of a court shall not preside on the trial of any cause where the parties, or either of them, shall be connected with him by affinity or consanguinity, or where he may be interested in the same, or wherein he may have been of counsel, except by the consent of the judge and of the parties.”

Judge Gordon did not come within the provisions of the above statute. He was not related to any of the parties, he was not interested in the cause, and the first assignment is without merit.

II.

Did the lower court err in declining to require appellee’s attorney to withdraw from representing appellee because he was a material witness?

Attorney Curtis Breland represented appellee in the matter. He did not testify before the Board nor does the record indicate he participated in the proceedings there. He was not subpoenaed as a witness, he was not called as a witness, and should not have testified in the appellate procedure. The lower court did not err in refusing to require him to withdraw as ap-pellee’s counsel.

III.

Did the lower court err in not finding fraud per se because the Board issued a notice on May 19, 1977, announcing the petitions had blocked issuance of the notes and in then meeting May 20, 1977, and deleting 328 names from the petitions, thereby denying the public the right to attend the judicial proceeding?

The appellants contend that they were kept from appearing at the May 20 meeting of the Board because they were not informed that there was such a meeting. One lady connected with the appellants inquired of the Chancery Clerk whether or not the Board would meet that day, and the clerk responded that he did not know. Another person asked Attorney Breland whether or not the Board would meet, and he answered that it would not. No member of the Board was asked whether or not a meeting would be held that day. The order of the Board clearly and without reservation adjudicates that 328 names were improperly on the petitions and that less than 20% of the electorate signed the petitions.

Appellants cite and rely upon Miles v. Board of Supervisors of Scott County, 33 So.2d 810 (Miss.1948). Miles is distinguished from the present case in that the Board of Supervisors of Scott County went into executive session while considering the petitions and excluded the petitioners from the session and deliberations. Further, members of the Board declined to inform the petitioners how they arrived at the number of qualified electors in the county and the number of qualified electors signing the petitions. The Court held that the Board of Supervisors was without authority to exclude from their meeting any of the interested parties or their attorneys, since such meeting constituted a judicial proceeding at which the record was made for review by the circuit court on appeal. The Court further said:

“Moreover, the action of the board in declining to disclose to the protestants and their attorney how many of those shown on the general election poll books were purged because of death, removal, and nonpayment of poll taxes, so as to enable the protestants to meet the proof taken in their absence when the board ‘went to the books and the folks that are supposed to know’ was purely arbitrary, and was, it is to be hoped, wholly unprecedented.” 33 So.2d at 813.

There are no facts in the record, or any competent evidence, which reflect that the meeting of the appellee Board on May 20, 1977, was held improperly or that there was any fraud or chicanery involved in the consideration of the petitions and entry of the order issuing the notes. Neither was there a denial of the right of the public and appellants to attend the judicial proceeding and there was no denial of due process.

IV.

Did the lower court err in assessing costs against appellants because appellee wrongfully subpoenaed 328 witnesses knowing they could not be heard on the trial (an appellate matter)?

The parties concede that this cause originated before the Board of Supervisors and that the circuit court (chancellor here) heard the matter as an appellate court on the record made before the Board. The 328 persons subpoenaed on the appellate hearing were not competent witness and to assess those costs against the appellants would be unfair and oppressive. Consequently, this assignment is well taken, and those costs are assessed against the appel-lee.

The cause is affirmed and the costs for 328 witnesses subpoenaed by appellee are assessed against it.

AFFIRMED.

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


author: BROOM, Justice,

text:
    Lonnie M. CANE v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION and Piney Woods School.
    No. 51065.
    Supreme Court of Mississippi.
    March 28, 1979.
    Charles H. Ramberg, Christopher A. Tabb, Brandon, for appellant.
    Leo T. Aragon, Jackson, for appellee.
    Before PATTERSON, BROOM and BOWLING, JJ.
   BROOM, Justice,

for the Court:

Unemployment compensation (interstate) was applied for by Lonnie M. Cane (appellant) and denied by the Claims Examiner, whose decision was affirmed by the Board of Review. Cane appealed the decision to the Circuit Court of Rankin County, which court affirmed the denial of his claim. We reverse.

The dispositive issue is: Was Cane’s appeal timely made pursuant to Mississippi Code Annotated § 71-5-517 (Supp.1978), which in its pertinent part provides:

The claimant or any party to the initial determination or amended initial determination may file an appeal from such initial determination or amended initial determination within fourteen (14) days after notification thereof, or after the date such notification was mailed to his last known address.

The facts are largely undisputed. Cane applied for unemployment compensation based upon his employment at Piney Woods School in Rankin County, Mississippi. His first application dated June 2, 1977, was filed in Tennessee, giving his address as 4411 Tennessee Avenue, No. 8, Nashville, Tennessee, where he had moved from Mississippi. He continued to make claims at intervals throughout June and July 1977. When he filed his claim form dated August 8,1977, for the week ending August 6,1977, he had checked the “Yes” box in response to the question: “Have you moved since you last filed a claim?”, and had placed his new address in the blanks provided for the mailing address. The Mississippi Employment Security Commission received this form on August 11, 1977, and Cane’s applications thereafter were from the new address. The Mississippi office mailed to Cane a “Notice of Non-Monetary Decision” but it was mailed to Cane’s old address, 4411 Tennessee Avenue, Nashville, Tennessee, and Cane received that notice on or about August 26, 1977. Cane appealed the decision, filing his appeal with the Commission on September 8, 1977. The Chief Appeals Referee of the Mississippi Employment Security Commission dismissed Cane’s appeal, giving the following reasons:

The notice to claimant of disqualification was mailed to his last known address on August 22, 1977. His appeal was not filed until September 8,1977. The appeal
obviously, was not filed within the 14 days time limit for filing an appeal as provided in the law.
The determination of the claims examiner, therefore, has become final and the referee is without jurisdiction in the matter. The appeal is consequently, dismissed.

We think that the administrative agencies and the circuit court below erroneously construed § 71-5-517, supra, which provides that the claimant may appeal “within fourteen (14) days after notification thereof, or after the date such notification was mailed to his last known address.”

Established by this record is the fact that the notification that his claim had been rejected was not mailed to Cane’s last known (his new) address but, instead, it was mailed to his previous Tennessee Avenue address. As previously stated herein, Cane notified the Employment Security Commission on August 6 that his address had been changed from Tennessee Avenue to Hill-view Heights. No longer was the Tennessee Avenue address his “last known” address; it became “Hillview Heights.” The change of address information was received by the Mississippi Employment Security Commission on August 11, 1977, but, in spite of this, the Commission sent the notice (dated August 22, 1977) that his claim had been rejected to Cane at his old (not his “last known”) “Tennessee Avenue” address. After he had actually received the unfavorable notice (on August 26, 1977), which was forwarded Cane from his old “Tennessee Avenue” address to his new “Hillview Heights” address, Cane filed his appeal with the Commission on September 8, 1977, thirteen days (less than fourteen days) “after notification thereof,” as required by the statute.

It is true that he did not appeal within fourteen days “after the date such notification was mailed to his last known address ” (the notification was mailed August 22, 1978). He could not do so because, unfortunately, the Mississippi Employment Security Commission never mailed Cane the notification of their unfavorable action on his claim to his last known address. Even though the Commission had been notified of his new or changed address, it mailed the notification to his old Tennessee Avenue address, his previous address, which was no longer his “last known address.” His “last known address” had become 816 Hillview Heights. Obviously, mailing the notification to the wrong address was an inadvertent mistake on the part of the Commission, but it would be unfair to penalize Cane because of a mistake not of his own making. Inasmuch as the notification was not “mailed to his last known address,” the fourteen day time frame within which he had the right to appeal did not begin to run from the mailing of the notification, but rather, under § 71-5-517, supra, it began to run “after notification thereof.” Clearly “notification thereof” as the language is used in § 71-5-517 means the date claimant received notification which occurred on August 26, 1977. Having received notification on August 26, 1977, Cane appealed on September 8, 1977, within fourteen days from notification.

Upon this record, we think that Cane is entitled to have his claim heard on the merits and adjudicated in the light of proof which he may develop at the hearing. According to the proof, he may or may not be entitled to any award but he is entitled to a hearing as provided by the statutes.

REVERSED AND REMANDED.

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


author: SMITH, Presiding Justice, PATTERSON, Chief Justice, SUGG, Justice,

text:
    Louis JONES v. STATE of Mississippi.
    No. 50727.
    Supreme Court of Mississippi.
    March 28, 1979.
    John L. Hatcher, Cleveland, for appellant.
    A. F. Summer, Atty. Gen., by Carolyn B. Mills, Special Asst. Atty. Gen., Jackson, for appellee.
   SMITH, Presiding Justice,

for the Court:

In this case Louis Jones and Clarence Hawkins were indicted jointly for grand larceny in connection with the theft of a tractor. Hawkins entered a plea of guilty, but sentencing was deferred pending the trial of Jones. Jones pled not guilty and was tried in the Circuit Court of Sunflower County, convicted largely upon the testimony of Hawkins, and sentenced to a term of three (3) years imprisonment.

These facts relating to the larceny are undisputed: Hawkins, who lived in Indiano-la, rented a U-Haul van-type truck. He drove this truck to Cleveland where the tractor, which was the subject of the larceny, was loaded into the van. Hawkins then drove the truck, containing the tractor, to Arkansas. After spending the night at a motel, the next day Hawkins sold the tractor for $7,000.00 In connection with the sale, Hawkins executed an affidavit of ownership and a bill of sale to the purchaser. Hawkins received the purchaser’s check for $7,000.00 in payment for the tractor. Af-terwards, Hawkins returned to Mississippi and cashed the check.

According to Hawkins, Jones’ role in the larceny was as follows: Hawkins had met Jones in January, 1977, and Jones had given him a card with his name and telephone numbers on it. The crime was committed on February 20, 1977. Hawkins testified that he had rented the van-type truck in Indianola because Jones had telephoned him and asked him to do so. He said that he brought the truck to Cleveland and left it on a parking lot near a hospital pursuant to directions given him by Jones in the telephone conversation. According to Hawkins, he had given Jones the keys and, when he again picked up the truck the tractor was in it, presumably placed there by Jones. Jones’ further participation, Hawkins said, had consisted in giving him, Hawkins, the blank printed form of bill of sale which Hawkins used in selling the tractor. Hawkins said he gave Jones $4,500.00 of the $7,000.00 check received by Hawkins and which Hawkins had cashed, keeping only $2,500.00.

Jones emphatically denies having participated in any way in Hawkins’ felonious activities. Moreover, the testimony of two witnesses, at least one of whom must be said to have had no interest in the case, placed Jones, at the critical time, at a motel in Cleveland so that he could not have been at the place at which Hawkins’ testimony would have required him to be. The identification of Jones by this witness was positive and circumstantial.

There is no substantial or significant corroboration of Hawkins’ testimony incriminating Jones. A witness, one Williams, placed on the stand by the State, testified that he lived “out in the country” from Cleveland on a dead end road, and on the night in question, had learned that a van-type truck was in the ditch in front of his house. Williams said that he had not known the driver of the truck, but that a man in a green station wagon had stopped and that he, Williams, had pulled the truck out of the ditch and the man who had arrived in the green station wagon had paid him $10.00. On direct examination he was asked to identify Jones as the driver of the green station wagon and he said that the man in the station wagon had been Jones. Williams testified that the incident had occurred shortly after 10:00 at night, that a “yard light” furnished the only illumination and that it was “pretty dark.” He admitted that he had never seen Jones before and only saw him for a few moments on the night in question. He said that the van had not contained a tractor when he saw it, but that he remembered it did not have a “local” tag.

On cross-examination, however, Williams frankly admitted that the officers had taken him on a search specifically to find Jones, taking him to Jones’ place of business, to determine if he could identify him as the man in the green station wagon. With this suggestive identification procedure as a background, Williams, on direct examination, undertook to say that Jones had been the man. However, on cross-examination, he admitted, in all candor, that he was not sure of the identification of Jones and described his “identification” of Jones as follows:

“Q. ... I believe you stated that you were reasonably sure, or something to that effect, although not absolutely positive.
A. Yes.
Q. That’s what you told me?
A. Yes.
Q. That out of all the people you have been shown, that this one came the closest?
A. Yes.”

Apart from the above, there was no evidence capable of supplying reasonable corroboration of Hawkins’ statements involving Jones in the crime.

The only other items supposedly corroborative of Hawkins consisted of a telephone call from a barbeque place in Indianola to a pizza hut in Cleveland, and another telephone call from Jitney, Jr. in Indianola to Coleman’s Barbeque in Cleveland, and testimony regarding some ramps allegedly used by Hawkins. These items were not tied in with Jones with sufficient clarity or certainty as to render them competent and their prejudicial effect far outweighs any probative value they might have had.

The case against Jones, a man of no previous criminal record, rests then upon the testimony of Hawkins, a convicted felon awaiting sentence following his plea of guilty, which is flatly contradicted by Jones and two other witnesses. At every point from beginning to end, where there is corroboration, it was Hawkins himself who acted. His statement that everything he did was in compliance with a request from Jones, a man he had known only two or three weeks, strains credulity. It is noted that the points at which Hawkins said Jones was involved had the virtue, from Hawkins’ standpoint, of being such as could not easily be disproved. Every fact capable of being proved, other than by Hawkins’ own testimony, showed Hawkins acting alone.

Among other grounds assigned for reversal, it is contended on behalf of Jones that the trial court erred in denying his request for a new trial which was based upon the ground that the verdict was against the weight of the evidence.

Throughout the history of criminal jurisprudence in Mississippi, the sufficiency of evidence to support a conviction has been reviewed by this Court where there has been (1) a request for peremptory instruction, and (2) a motion has been made for a new trial upon the ground that the guilty verdict was against the weight of the totality of the evidence. A succinct statement of the extent and nature of the review in such cases appears in Roberson v. State, 257 So.2d 505 (Miss.1977):

We have repeatedly pointed out that the trial judge in passing upon a motion for a directed verdict, or a peremptory instruction, must assume that all the evidence for the State is true, and must assume that all the reasonable inferences that may be drawn from the evidence by the jury of reasonable men, is true, and if, from all the testimony, there is enough in the record to support a verdict, the motion for a peremptory instruction should be overruled. Redwine v. State, 149 Miss. 741, 115 So. 889 (1928).
This rule does not, however, preclude the judge from considering all the testimony for the State and defendant on a motion for a new trial upon the ground that the verdict of the jury is against the weight of the evidence. McLendon v. State, 187 Miss. 247, 191 So. 821 (1939). 257 So.2d at 507.

In reviewing the totality of the evidence in the case now before the Court, it has been pointed out that under the rule in Mississippi, long established and consistently adhered to, the testimony of Hawkins, the convicted accomplice and felon, must be viewed with great caution and suspicion. Where it is uncorroborated, it must also be reasonable, not improbable, self-contradictory or substantially impeached. Thomas v. State, 340 So.2d 1 (Miss.1976); Black v. State, 336 So.2d 1302 (Miss.1976); Hutchins v. State, 220 So.2d 276 (Miss.1969); Cole v. State, 217 Miss. 779, 65 So.2d 262 (1953); Young v. State, 255 So.2d 318 (Miss.1971); Pegram v. State, 228 Miss. 860, 89 So.2d 846 (1956); Perdue v. State, 199 Miss. 624, 25 So.2d 185 (1946); Lyle v. State, 193 Miss. 102, 8 So.2d 459 (1942); Nichols v. State, 174 Miss. 271, 164 So. 20 (1935).

In Burks v. United States , 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1, decided June 14, 1978, the United States Supreme Court reexamined the rule which had hitherto existed that where a motion was made for a new trial on the basis of insufficiency of the evidence to support a conviction, the appellate court, upon sustaining the motion, might remand the case for another trial. Burks had been tried in a district court on a charge of having robbed a federally insured bank by using a dangerous weapon. Burks interposed as his defense a claim that he had been insane at the time, placing upon the prosecution the burden of proving his sanity. To meet this burden, the prosecution offered two experts, one of whom testified that Burks was not mentally ill and the other gave an ambiguous answer to the question of whether Burks had been capable of conforming his conduct under the law. All the other testimony offered to prove that Burks had been sane consisted of lay testimony that he had appeared to be capable of functioning normally at the time of the offense. Following his conviction, Burks moved for a new trial upon the ground that the evidence was insufficient to support the verdict. The motion was denied by the district court. The Court of Appeals, however, agreed that the evidence had been insufficient to support the verdict and reversed Burks’ conviction. The Court of Appeals, rather than terminating the case against Burks, remanded it to the district court for determination of whether Burks’ acquittal should be directed or a new trial ordered. This action by the Court of Appeals was based on a decision by the Fifth Circuit in United States v. Bass, 490 F.2d 846, 852-853 (5th Cir. 1974).

In Burks the Supreme Court specified and set forth the narrow issue in the following paragraph:

The United States has not cross-petitioned for certiorari on the question of whether the Court of Appeals was correct in holding that the Government had failed to meet its burden of proof with respect to the claim of insanity. Accordingly, that issue is not open for review here. Given this posture, we are squarely presented with the question of whether a defendant may be tried a second time when a reviewing court has determined that in a prior trial the evidence was insufficient to sustain the verdict of the jury. [Emphasis added].
437 U.S. at 5, 98 S.Ct. at 2144, 57 L.Ed.2d at 5.

With the issue thus limited and defined, the Supreme Court concluded:

The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. This is central to the objective of the prohibition against successive trials. The Clause does not allow “the State ... to make repeated attempts to convict an individual for an alleged offense,” since “the constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.” Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957); see Serfass v. United States, 420 U.S. 377, 387-388, 95 S.Ct. 1055, 1061-1062, 43 L.Ed.2d 265 (1975); United States v. Jorn, 400 U.S. 470,479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971).
Nonetheless, as the discussion in Part II, supra, indicates, our past holdings do not appear consistent with what we believe the Double Jeopardy Clause commands. A close re-examination of those precedents, however, persuades us that they have not properly construed the Clause, and accordingly should no longer be followed.
437 U.S. at 11, 98 S.Ct. at 2147, 57 L.Ed.2d at 9.
‡ * * * * ‡
In our view it makes no difference that a defendant has sought a new trial as one of his remedies, or even as the sole remedy. It cannot be meaningfully said that a person “waives” his right to a judgment of acquittal by moving for a new trial. See Green v. United States, 355 U.S., at 191-198, 78 S.Ct., at 225-229. Moreover, as Forman, supra [Forman v. United States] 361 U.S. [416], at 425, 80 S.Ct. [481], at 486 [4 L.Ed.2d 412] has indicated, an appellate court is authorized by § 2106 to “go beyond the relief sought” in order to provide that relief which would be “just under the circumstances.” Since we hold today that the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient, the only “just” remedy available for that court is the direction of a judgment of acquittal. To the extent that our prior decisions suggest that by moving for a new trial, a defendant waives his right to a judgment of acquittal on the basis of evidentiary insufficiency, those cases are overruled.
437 U.S. at 17, 98 S.Ct. at 2150, 57 L.Ed.2d at 13.

It has been suggested that the decision in Burks has curtailed or eliminated entirely the power of an appellate court to remand a criminal case for a new trial based upon the proposition that the totality of the evidence was insufficient to support the conviction. Although the issue actually decided in Burks was extremely narrow and the scope of the decision must be considered as being limited to the issue actually before the court, the language contained in the opinion has raised some doubt as to the power of this Court to follow its former practice, where there has been a motion for a new trial upon the ground that the verdict was against the weight of the evidence, to review the evidence as a whole, and to determine, as a matter of law, that the motion has been well taken and should be sustained, and to remand the case to the lower court for a new trial.

This case, however, in its material aspects, resembles Pegram v. State, 228 Miss. 860, 89 So.2d 846 (1956). In Pegram, Pegram had been convicted largely upon the uncorroborated testimony of an accomplice. The court reviewed the testimony in some detail and reached the conclusion that, based upon the totality of the circumstances and the probative value of all the evidence in the case, including the testimony of the accomplice when viewed with suspicion and caution, the verdict of guilty had been against the weight of the evidence and that Pegram, rather than being awarded a new trial, should be discharged, although two of the justices, while concurring in the reversal of the case, were of the opinion that the case should have been remanded for a new trial.

In Pegram, this Court said:

In numerous cases we have held that a person may be convicted upon the uncorroborated evidence of an accomplice, but we have also held that where there is strong testimony of an alibi a conviction will not be upheld. Admittedly Rose is a common and habitual criminal and although he entered a plea of guilty to this robbery he has never yet been sentenced. It could well be that he is hoping for clemency in consideration for his turning State’s evidence in this case.
* * * * * *
In the case of White v. State, 146 Miss. 815, 819,112 So. 27,28, we said: “Putting the case differently somewhat, we have a conviction here based alone on the testimony of an alleged accomplice who is a common thief and a common liar, and, in addition, whose story itself has many of the earmarks of falsehood. We do not think it amounted to any substantial evidence at all. Under the authority of Hunter v. State, 137 Miss. 276, 102 So. 282, and Abele v. State, 138 Miss. 772, 103 So. 370, we think the appellant was entitled to a directed verdict of not guilty.”
* * * * * *
In Creed v. State, 179 Miss. 700, 705, 176 So.'596, 597, we said: “The rule is well settled that, while a conviction may be sustained on the uncorroborated testimony of an accomplice, it is equally well settled that such a conviction should not be upheld where such testimony is improbable, self-contradictory, and unreasonable on its face, and especially where it is impeached by unimpeached witnesses. Day v. State (Miss.), 7 So. 326; Wright v. State, 130 Miss. 603, 94 So. 716; Hunter v. State, 137 Miss. 276, 102 So. 282; Abele v. State, 138 Miss. 772,103 So. 370; White v. State, 146 Miss. 815, 112 So. 27; Matthews v. State, 148 Miss. 696, 114 So. 816; Boutwell v. State, 165 Miss. 16, 143 So. 479; Harmon v. State, 167 Miss. 527, 142 So. 473; Rutledge v. State, 171 Miss. 311, 157 So. 907; Carter v. State (Miss.), 166 So. 377.

******

We have given careful consideration to the facts of this case and we have reached the conclusion that the evidence for the State, based solely upon the testimony of the witness Rose, the alleged accomplice, is so thoroughly impeached by the appellant’s alibi that the judgment of conviction ought not to stand and that the appellant was entitled to the peremptory instruction which he requested.

228 Miss, at 870-872, 89 So.2d at 850-851.

In the light of Pegram, supra, and Burks, supra, (so far as the latter has application), Jones’ conviction should not be allowed to stand.

An examination of the record of competent evidence reflects that Jones’ conviction rests upon the uncorroborated testimony of Hawkins, a convicted felon and confessed accomplice, whose sentence was deferred pending the trial of Jones. As this Court said in Pegram, it is only reasonable to assume that under such circumstances Hawkins was under some constraint and had some wish not to offend the prosecuting authorities. Moreover, under all the authorities, his testimony must be viewed with caution and suspicion. It must not be “improbable, self-contradictory, and unreasonable on its face, and especially where it is impeached by unimpeached witnesses.” Here, Hawkins’ veracity is also impeached by proof of his conviction of this felony. We have concluded that Hawkins’ testimony, thus viewed, did not amount “to any substantial evidence at all.”

The testimony of Williams, placed on the stand in an effort to identify Jon s as the man who had paid $10.00 to have him pull a van-type truck out of a ditch (the van itself, Williams said, was being driven by another and unidentified person) is refuted by the positive testimony of witnesses that Jones was elsewhere at the time the incident occurred. Also, there is an absence of any cogent explanation of how the incident fitted in with the story of the larceny as related by Hawkins. Considering that this witness had never seen Jones before and saw him on the occasion in question only for a few moments late at night, with a “yard light” supplying the only illumination, the witness testifying that it was “pretty dark”, coupled with the suggestive procedure followed by the officers in taking the witness specifically to find Jones to be identified as this man, with the final admission of Williams that he was uncertain of the identification, taken all together, effectively destroy the probative value of Williams’ testimony as an identification of Jones.

Although we have considered the effect of the decision of the United States Supreme Court in Burks, supra, on the case now before us, we have concluded that it is not necessary to resort to it in the disposition of the present case which we believe falls within the rule laid down in Pegram, supra. Under the rule there stated, and under the totality of the circumstances, the conviction of Jones must be reversed and Jones discharged.

REVERSED AND APPELLANT DISCHARGED.

PATTERSON, C. J., ROBERTSON, P. J., and BROOM, LEE, BOWLING and COF-ER, JJ., concur; PATTERSON, C. J., specially concurs.

SUGG and WALKER, JJ., dissent.

PATTERSON, Chief Justice,

specially concurring:

I concur in the result of the majority opinion. The question is whether there is sufficient evidence to sustain the conviction of Jones. If not, the issue is whether there should be a remand for a new trial or whether Jones should be discharged.

In Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), the same issue was before the Court:

Given this posture, we are squarely presented with the question of whether a defendant may be tried a second time when a reviewing court has determined that in a prior trial the evidence was insufficient to sustain the verdict of the jury.
(437 U.S. at 5, 98 S.Ct. at 2144, 57 L.Ed.2d at 5)

With this issue defined, the Supreme Court concluded:

The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. This is central to the objective of the prohibition against successive trials. The Clause does not allow “the State ... to make repeated attempts to convict an individual for an alleged offense,” since “the constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.”
Nonetheless, as the discussion in Part II, supra, indicates, our past holdings do not appear consistent with what we believe the Double Jeopardy Clause commands. A close reexamination of those precedents, however, persuades us that they have not properly construed the Clause, and accordingly should no longer be followed.
(437 U.S. at 11, 98 S.Ct. at 2147, 51 L.Ed.2d at 9)

In my opinion, Burks controls this case and although I have no quarrel with Pe-gram v. State, 228 Miss. 860, 89 So.2d 846 (1956), I would not follow it because its concurring opinion voices the theory of remand even though there was insufficient evidence to support the conviction. The vestige of remand where there is insufficient evidence to support a conviction has been supplanted by Burks, supra, in my opinion, and I would forthrightly so hold.

SUGG, Justice,

dissenting:

I dissent because the evidence in this case presented a question for the jury.

The rule for reviewing the sufficiency of evidence in a criminal case was stated in Carroll v. State, 196 So.2d 878 (Miss.1967) as follows:

In reviewing the sufficiency of the evidence to support the verdict, this Court must accept as having been established all that was proved by the evidence, as well as all that such evidence reasonably tended to prove, together with all reasonable inferences to be drawn therefrom, favorable to the theory of the prosecution. (196 So.2d at 883).

When the evidence in this case is measured by the above rule it is sufficient to support the verdict of the jury.

The majority opinion is based on the premise that the principal evidence of the defendant came from the lips of his accomplice. We have stated many times that an accomplice’s testimony will be viewed with great caution and suspicion and must be reasonable and not improbable or self contradictory, or substantially impeached. Simpson v. State, 366 So.2d 1085 (Miss.1979); Black v. State, 336 So.2d 1302 (Miss.1976). The testimony of the accomplice shows that the defendant participated in the crime, and the extent of his participation is set forth fully in the majority opinion. The case is reversed primarily because two witnesses for the defendant testified that the defendant checked into a motel in Cleveland, Mississippi at 10:09 p. m. on the night of the crime and concluded that it was impossible for the defendant to have been seen in Indianola by the state’s witness, Charles Williams.

Williams testified that he was a farmer and a cotton gin operator who lived a short distance north of the intersection of Highway 82 and Highway 49. A careful analysis of his testimony reveals that it would have been possible for the defendant to have checked into the motel at Cleveland at 10:09 and also to have been present at the Williams farm at the time testified by Williams.

Williams was plowing in a field next to his house and observed a station wagon proceed to the end of the dead end road leading to his house, turn around and return. About 11:00 p. m. the witness’ aunt stopped by the field and told Williams that a truck was in a ditch. The truck met the description of the U-Haul truck which Clarence Hawkins had rented and used to transport the stolen tractor to Arkansas. When Williams and his aunt parked in Williams’ driveway a man driving a green Ford station wagon asked Williams if he could pull the truck out of the ditch. Williams pulled the truck out of the ditch and the man, later identified as the defendant, paid Williams $10.00.

Williams identified the green station wagon when he viewed it at the residence of the defendant and, on direct and redirect examination, positively identified the defendant as the driver of the station wagon. On cross-examination the following questions and answers were given:

Q. I believe when you were talking to me, didn’t you say — of course, any positive identification is difficult, and I believe you stated that you were reasonably sure, or something to that effect, although not absolutely positive.
A. Yes.
Q. That’s what you told me?
A. Yes.
Q. That out of all the people you have been shown, that this one came the closest?
A. Yes, sir.
Q. That is what you told me?
A. Yes, sir.

On cross-examination the witness stated he had been carried to the Cleveland Ford Tractor place to see if he could identify defendant, but the defendant was not present. On direct examination the witness said that he had never seen the defendant “before or since, that I know of.”

Defendant’s witness, Eugene Tarsi, stated that he measured the distance from Cleveland to the intersection of Highways 82 and 49 in Indianola and found the distance to be 32 miles. Williams testified that he lived .8 of a mile off of Highway 49 on a road which intersected Highway 49 a distance of 1.7 miles north of the intersection of Highways 82 and 49. The distance from Cleveland to Williams’ home was 31.1 miles.

Assuming that the defendant and his ex-wife checked into a motel in Cleveland at 10:09 p. m. it would have been possible for him to have driven the 31 miles to the road leading to Williams’ home and arrive there at approximately 20 minutes before eleven o’clock.

Williams did not check his watch to determine the exact time, but stated that his aunt told him about 11:00 p. m. that the truck was in the ditch, and that he had seen the green station wagon about 20 or 30 minutes earlier. The jury was justified in finding that it was possible for the defendant to have checked into the motel and arrived at the Williams farm at the time testified to by Williams.

Another factor should be noted. Assuming that it was impossible for the defendant to have checked into the motel at 10:09 and arrived at the Williams farm as testified to by Williams the jury had the right to say which witness they would believe. Defendant was a married man and one of his corroborating witnesses was his ex-wife with whom he spent Saturday night in a motel in Cleveland. The other witness was the clerk at the motel who observed a man that he identified as the defendant sitting in a car outside the office. The motel clerk stated that he could see the man and was positive of his identification; however, it was solely the province of the jury to determine whether the identification of the defendant by the clerk under the lighting conditions then existing, was definite and certain enough to establish defendant’s alibi. Obviously the jury did not believe defendant’s alibi.

I am of the opinion also that the testimony with reference to the ramps used to load and unload the tractor shows that defendant had some direct participation in the larceny of the tractor. Clarence Hawkins testified that defendant called him on February 19, 1977 to rent a U-Haul truck and bring it to Cleveland. Hawkins rented the U-Haul truck in Indianola around noon and delivered it to the parking lot across from the hospital in Cleveland as directed by the defendant. Defendant’s ex-wife, with whom he spent Saturday night, worked at the hospital. Hawkins stated that defendant drove him in the station wagon to Indi-anola arriving between 3:30 and 4:30 p. m. Defendant called Hawkins around 6:00 o’clock p. m. and told Hawkins he would get back in touch with him later that night. Defendant testified about a telephone bill from Cleveland Ford Tractor, Inc. which was introduced and showed a telephone call, charged to Cleveland Ford Tractor, Inc., made to the number of Hawkins Shoe Shop in Indianola at 6:14 p. m. Defendant was employed by Cleveland Ford Tractor, Inc. as Service Manager.

The ramps were introduced in evidence and identified by Charles Lane Miller who stated that he lent the ramps to A1 Erwin. The ramps were not returned so Miller requested defendant and A1 Erwin to return the ramps to him. Defendant told him that the ramps were not there, but he and A1 Erwin had Prestage Machinery Company build ramps to replace the ones that Miller had lent Erwin. According to Miller’s recollection defendant and A1 Erwin each agreed to pay one-half of the cost of the replacement ramps. Defendant admitted he helped A1 Erwin arrange to replace the ramps because Clarence Hawkins had them and was unable to return them.

It thus appears that the ramps used to load and unload the stolen tractor were in the possession of the defendant, and when the owner called upon him to return the ramps he arranged for a replacement for the ramps which could not be returned.

Taking all the evidence in the light most favorable to the state, as we must under Carroll, supra, it is my opinion it supports the jury’s verdict.

I would affirm.

WALKER, J., joins in this dissent.


author: PATTERSON, Chief Justice,

text:
    NATIONWIDE INSURANCE COMPANY and Janice W. Duckworth v. BANK OF FOREST, FOREST, MISSISSIPPI.
    No. 50981.
    Supreme Court of Mississippi.
    March 28, 1979

      Watkins & Eager, Velia Ann Mayer, Jackson, for appellants.
    0. B. Triplett, Jr., Forest, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   PATTERSON, Chief Justice,

for the Court.

The Chancery Court of Scott County held the Bank of Forest was entitled to recover $509.56 from Nationwide Insurance Company and Janice W. Duckworth. This is the amount of the bank’s lien on an automobile demolished by the negligence of Duck-worth.

Both Nationwide and Duckworth appeal, assigning as error the following:

1. The trial court erred in overruling the demurrer of Nationwide and Duckworth.

2. The trial court erred in overruling the pleas of Nationwide and Duckworth.

3. The trial court erred in ordering that the Bank of Forest should recover $509.56 or any amount from Nationwide and Duck-worth.

The cause was heard by the chancellor on stipulated facts which are hereinafter summarized.

On August 3, 1976, Burley Wayne Wilhite executed his promissory note for $556.08 to the Bank of Forest. This indebtedness was secured by a lien on Wilhite’s 1970 Ford Falcon automobile. Simultaneously therewith, Wilhite, as the owner, filed with the Motor Vehicle Comptroller an application for a title certificate to the automobile. The application listed the bank as first lien-holder and thereafter a certificate of title was issued designating Wilhite the owner and the Bank of Forest the first lienholder.

On August 8, 1976, Wilhite’s automobile was demolished when it collided with an automobile driven by Janice W. Duckworth who was insured under a policy issued by Nationwide Insurance Company. The negligent acts of Duckworth were conceded to be the proximate cause of the accident. Thereafter Wilhite’s attorney filed a claim against Duckworth for all damages accruing to Wilhite from the automobile accident. Following negotiations with Nationwide, Duckworth’s insurer, Wilhite accepted settlement for all claims arising from the accident and executed a release to Duck-worth and Nationwide on September 5, 1976.

Neither Duckworth nor Nationwide was advised of the bank’s lien prior to the settlement and it is stipulated neither had actual knowledge of it. The demolished automobile was delivered to Nationwide by Wilhite as part of the settlement and was sold by it as salvage for $114.95. Nationwide did not obtain a certificate of title from Wilhite to the automobile prior to selling it for salvage.

On October 8 Wilhite executed a renewal of the first note to the Bank of Forest for $564.96, payable in twelve monthly installments of $47.08 each, beginning on November 5, 1976, whereupon the note of August 3, 1976, was cancelled. On November 12, 1976, Wilhite executed an additional note to the Bank of Forest for $75.50. Wilhite neglected to inform the bank upon the execution of these notes that the Falcon automobile had been demolished and that he had accepted settlement for it. He later defaulted on the notes, each of which provided for reasonable attorney’s fees for their collection.

The Bank of Forest brought suit against Wilhite for the principal, interest and attorney’s fees due under the notes and for a lien to be impressed on the automobile, and prayed a decree be rendered against Duck-worth and Nationwide for the principal and interest due under the note of October 8, 1976, and “that the defendant Nationwide be further liable for the wrongful conversion of said automobile to its own use without respect or regard for the right of complainant.” A decree pro confesso and later a final decree were entered against him for the full amount owed the bank, including interest and attorney’s fees. A final decree, after hearing, was entered against Nationwide and Duckworth for $509.56, the amount of the bank’s lien at the time of the accident.

The trial court’s reasoning in awarding recovery to the bank was that the appellants could not assert a release of the appel-lee’s lien because they had made no effort to inspect the certificate of title on the vehicle which would have disclosed the lien or to determine from Wilhite whether his title was subject to a lien or liens under the registration act.

We affirm the judgment of the trial court. A reading of the Mississippi Motor Vehicle Title Law, Chapter 21 [Mississippi Code Annotated sections 63-21-1 through 63-21-77 (1972)] reveals the predominant intention of the legislature by the enactment to establish a source of information concerning the title to motor vehicles and to liens thereon, if any, thereby affording protection to the public, including lending institutions and businessmen in their transactions concerning motor vehicles. For example, Section 63-21-7(3) provides the comptroller shall make available information concerning the status, of a title on any vehicle as reflected by the records; Section 63-21-19(4) provides that a certificate of title issued by the comptroller is prima facie evidence of the facts appearing on it; and Section 63-21-55 provides that the methods of perfecting and giving notice of security interest subject to the chapter are exclusive. And see Memphis Bank & Trust Co. v. Pate, 362 So.2d 1245 (Miss.1978), wherein we held Chapter 21, Motor Vehicle Titles, controls the perfection of a security agreement, meaning that resort need not be made to other statutes to perfect the lien or to give notice thereof.

The stipulation reveals that neither Nationwide nor Duckworth was advised of the bank’s lien by Wilhite or his attorney prior to the settlement and neither had actual knowledge of it from any other source. The trial court found that Nationwide made no effort to ascertain the status of the title. We are of the opinion, as was the trial court, that this failure to investigate was not reasonable under the circumstances, leaving both Duckworth and Nationwide liable to the bank because they settled with constructive notice of the bank’s lien.

The present factual situation does not permit discussion of the many claims that might arise from minor accidents, “fender benders,” which, it is contended, might inundate the motor vehicle comptroller’s office with multiple inquiries, thereby disturbing its normal business activities. Moreover, the repair of a vehicle as distinguished from a sale for salvage has the likelihood of maintaining the value of the security and thereby protecting the lien rather than obliterating it. We presently speak only to facts wherein a vehicle was demolished leaving the residue of salvage value only.

The appellants argue, with some logic, that the rules of other jurisdictions should be persuasive to us. The sum of these rules is set forth in 69 Am.Jur.2d, Secured Transactions, section 267 (1972), as follows:

Generally, under pre-Code law a settlement by a wrongdoer with either the chattel mortgagee or the mortgagor, in the absence of fraud or collusion, was a bar to an action by the other, the amount paid being held in trust to be applied according to the respective rights of the mortgagor and the mortgagee. Furthermore, a settlement by a wrongdoer with the mortgagor has been held to be a bar to an action by the mortgagee where actual notice of the mortgagee’s interest had been given to the wrongdoer, even where the notice was ignored and left unanswered or where the mortgagee had some other reason to believe that despite the notification, settlement might be made without regard to his rights. .

We acknowledge the rule but do not think it persuasive. . The numerous business and credit transactions directly related to motor vehicles are common knowledge. The protection of business through registration of title under the Motor Vehicle Title enactment, in our opinion, outweighs the barring of either a mortgagor or mortgagee from bringing suit against a tort-feasor who has settled with either the one or the other with total disregard for the lien rights of others. We think the very purpose of the Motor Vehicle Title Law was to afford a central place and a designated official so that essential information concerning title to motor vehicles might be readily available to anyone with legitimate needs therefor. It seems to us that ordinary prudence, at the very minimum, would require a cursory investigation of title before an owner was paid the full value of the vehicle, less salvage value, in settlement of a claim. Had this been done both the Bank of Forest and Nationwide would have been protected.

We are of the opinion that Nationwide acted without reasonable prudence in settling with Wilhite without ascertaining the status of the title from the motor vehicle registration statutes. We therefore think the trial court did not err in overruling the demurrer, in overruling the pleas of Nationwide and Duckworth, and in finding that the Bank of Forest should recover $509.56, the amount of its lien.

AFFIRMED.

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

LEE, J., took no part.


text:
    In the Interest of Terry D. SMITH, a minor.
    No. 51079.
    Supreme Court of Mississippi.
    March 28, 1979.
    J. Hal Ross, John Robbins, Biloxi, for appellant.
    A. F. Summer, Atty. Gen. by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   Appeal from Youth Court, Rankin County; Thomas L. Zebert, Chancellor.

AFFIRMED.


text:
    Harold E. JONES v. Lois B. JONES.
    No. 51086.
    Supreme Court of Mississippi.
    March 28, 1979.
    M. Charles May, Jackson, for appellant.
    Melvin & Melvin, Leonard B. Melvin, Jr., Sarah L. Entrekin, Laurel, for appellee.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   Appeal from Chancery Court, Jones County; J. Shannon Clark, Chancellor.

AFFIRMED.


text:
    Margaret PARKER, Administratrix of Estate of James Daniel Parker, Deceased v. Anse B. HOWARD, III, M.D.
    No. 50904.
    Supreme Court of Mississippi.
    March 28, 1979.
    Holcomb, Dunbar, Connell, Merkel, Tolli-son & Khayat, Charles M. Merkel, Clarks-dale, Allen B. Couch, Southaven, for appellant.
    Baine, Moore, Simmons & Thompson, Louis G. Baine, Jr., Jackson, Singley, Min-niece, Neville & Hamill, David T. Wilson, Jr., Meridian, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   Appeal from Circuit Court, Winston County; Clarence E. Morgan, Jr., Judge.

AFFIRMED.


author: ENGLAND, Chief Justice.

text:
    Antonio MENENDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 49294.
    Supreme Court of Florida.
    Jan. 25, 1979.
    Bennett H. Brummer, Public Defender, and Julian S. Mack, Warren S. Schwartz and Daniel Velayos-Laredo, Asst. Public Defenders, Miami, for appellant.
    Jim Smith, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., Tallahassee, for appellee.
   ENGLAND, Chief Justice.

This case is here on direct appeal of a sentence of death imposed on Antonio Men-endez by a trial judge, following an advisory sentence of death recommended by a jury. We have jurisdiction.

The following sequence of events led to Menendez’s arrest and conviction. A customer walked into a jewelry store and saw a man emptying the store’s safe. The man took a gun from his jacket and grabbed for the customer, but she eluded his grasp and ran out of the store. Soon thereafter the same man was seen by the customer and her husband leaving the store and speeding away in a red Camaro with New York license tags. Both the husband and wife later gave police similar descriptions of the man they had seen. A police officer soon arrived at the store and found the dead body of the jeweler.

At 2:30 a. m., the officer received word that a red Camaro had been seen at an apartment complex. He proceeded to the area and noted that although the car had a Florida license tag, it bore a New York inspection sticker. The officer the went into the complex and questioned the manager, who said that he thought the Camaro belonged to the resident of a particular apartment whose description matched that of the man seen at the jewelry store. The manager also stated that this resident had been seen transferring various goods from the trunk of the red Camaro to another vehicle earlier. The officer went to the door of the apartment, knocked, and announced both in English and Spanish that he was a police officer.

After about five minutes, during which time the officer heard shuffling and sounds of movement inside the apartment, the door was opened about two inches to reveal an individual holding a pistol in his hand. The officer immediately pushed the door fully open, upon which the person who had opened the door dropped the pistol. Across the room the officer saw another man who fit the suspect’s description and numerous items of merchandise which later proved to have been taken from the jewelry store.

The officer arrested the persons in the apartment and confiscated both the weapons and merchandise. The man seated across the room was Menendez, who was later identified in a lineup at the police station by the woman who had witnessed the jewelry store robbery.

After a trial by jury, Menendez was convicted of robbing the jewelry store and murdering the store owner. He was sentenced to life imprisonment for the robbery and to death for the murder. In seeking to overturn his convictions and sentences, Menendez essentially argues three points:

1. That the contraband seized from the apartment should not have been admitted into evidence because it was obtained by means of an illegal search;

2. That he was prejudiced by a failure to sever his trial from that of the co-defendant; and

3. That his death sentence was improper even if his conviction was valid.

1. Search and seizure. The trial judge did not err in allowing the seized items to be admitted into evidence. There was absolutely nothing improper in the police officer’s knocking on the door of Mene-dez’s apartment and announcing himself, regardless of the time of day. When the officer saw that a person in the doorway held a gun, he acted most reasonably in attempting to protect himself by quickly pushing the door open to its full extent, especially in light of the information he already possessed, which suggested that the resident of the apartment may have committed murder. With the door fully open, the contraband was lawfully within the officer’s view, and it is immaterial that he could not have effected a valid arrest without a warrant at the time he first knocked at the apartment door. Once the door was opened, there was probable cause to arrest the persons in the apartment without a warrant and to seize the contraband which was in plain view.

2. Severance. The trial judge exercised her discretion during the course of trial by refusing to sever Menendez’s trial from that of the co-defendant. There was only one attempt to sever Menendez’s and his co-defendant’s trial, however. That occurred when the co-defendant’s counsel announced in his opening statement that his defense would be designed to prove that Menendez, not the co-defendant, had committed the robbery and murder. Menen-dez’s counsel promptly moved for a mistrial and for severance. While both of these requests were denied, the trial judge nonetheless expressed her concern as to the direction of the joint trial, saying:

I am frank to say I am awfully worried about the way things are heading.

The trial court then expressly cautioned the jury to disregard the statement of counsel and to base their verdict solely on the evidence which would be produced during the course of trial.

During the evidentiary phase of the trial, counsel for the co-defendant offered no evidence to support his earlier assertion that Menendez had committed the crimes, and counsel for Menendez made no further request for severance. The only other reference to the co-defendant’s reliance on Men-endez’s guilt came during closing argument by counsel for the co-defendant, when he argued that the evidence against Menendez was overwhelming and that “the opposite is true as to the co-defendant.” Menendez was convicted of robbery and murder, but his co-defendant was acquitted of both.

The American Bar Association has promulgated standards with respect to join-der and severance dealing in a general way with the problem of severance which was raised in this case. The thrust of the association’s recommendation, which is completely consistent with our rule on severance, is that severance should be granted liberally whenever potential prejudice is likely to arise in the course of trial. It is immaterial whether any of us might have granted a severance; the test is whether the trial judge abused her discretion at the time she made her ruling.

We have reviewed the entire record to determine whether the two statements of the co-defendant’s counsel so prejudiced the determination of Menendez’s innocence or guilt that the same jury might have reached a different result had the two statements not been made. It is impossible to conclude on this record that Menendez was prejudiced in the least. The evidence is overwhelming that Menendez was the individual who had been present in the store at the time the shopkeeper was killed, was seen in the act of robbing the safe, and later emerged to flee in a red Camaro. While there was no evidence as to who may have fired the fatal shot, it was also undisputed that Menendez held a gun in his hand at the time he was seen in the store, at or near the time of death. His co-defendant was at no time linked to any of the events which transpired at the jewelry store. This, then, is not a case in which the conviction was based solely on circumstantial evidence or inconclusive evidence, or where there is any possibility of misidentification between two perpetrators. We conclude that the trial judge did not abuse her discretion in refusing to sever Menendez’s trial from that of his co-defendant.

3. Death sentence. The state has conceded that three of the seven aggravating circumstances found by the trial judge should not have been considered, since they are outside the list of factors enumerated in our death penalty statute. These findings are stricken. The state also agrees that a fourth aggravating circumstance found by the trial judge is properly consolidated with another. The only mitigating circumstance in the case is that Menendez had no significant history of prior criminal activity.

With the findings of the trial judge appropriately modified, the state still argues that the three aggravating circumstances outweigh the one mitigating circumstance and warrant our affirmance of the death sentence. The three aggravating factors, as stated by the trial judge, are:

1. That the death of Arturo Gargaro, age 69, occured [sic] while the defendant was engaged in the commission of a Robbery of Mr. Gargaro’s jewelry store and that as such, the crime was for pecuniary gain.
2. That the crime .was especially heinous, atrocious or cruel in that the placement of the fatal bullet indicates to the court that the arms of the victim were in a raised and submissive position at the time of the administration of the fatal shot.
4. That the Murder was committed for the purpose of eliminating the one eye-witness [sic] to the crime and thereby avoiding or preventing a lawful arrest.

It is clear that this murder was committed during the course of a robbery. It is not so clear that the murder was “especially” heinous, atrocious, or cruel, as is contemplated in the statute. The storekeeper was shot twice and died. Although his arms may have been in a submissive position at the time he was shot (a fact which is subject to other reasonable interpretations), there is nothing to set his execution murder “apart from the norm of capital felonies.”

There is also considerable doubt that this murder was committed for the purpose of avoiding arrest within the contemplation of our statute. The state urges (with some logic) that any murder committed by means of a pistol fitted with a silencer indicates a motivation to avoid arrest and detection. The presumption accorded the instrument of murder by this reasoning, however, carries us too far. Were this argument accepted, then the perpetration of murder with a knife would similarly add an aggravating circumstance to the life-or-death equation, since it is less detectable than a firearm. This mechanical application of the statute would divert the life-and-death choice away from the nature of the defendant and the deed, as the statute seems to require. In Riley v. State, 366 So.2d 19 (Fla.1978), we held that an intent to avoid arrest is not present, at least when the victim is not a law enforcement officer, unless it is clearly shown that the dominant or only motive for the murder was the elimination of witnesses. Here, unlike Riley, we do not know what events preceded the actual killing; we only know that a weapon was brought to the scene which, if used, would minimize detection. We cannot assume Menendez’s motive; the burden was on the state to prove it.

There is, therefore, only one properly found aggravating circumstance and one

mitigating circumstance. Since the trial judge has committed error in considering matters outside the permissible range of legal standards set by the statute, and because it is impossible for us to evaluate the weight given by the trial judge to those factors which were proper to consider in imposing the death penalty, we can only vacate the sentence of death and remand the case for resentencing.

Menendez has not demonstrated any error in the instructions given to the jury or the evidence it considered in making its recommendation. Moreover, our independent review of the record reveals no error, so that it is not essential that a new jury be convened. Nor is it necessary to disturb Menendez’s conviction and sentence for robbery, as both are fully supported by the record and by the law.

Accordingly, Menendez’s convictions for robbery and murder, and his life sentence for robbery, are affirmed. The sentence of death for his murder conviction is vacated, and the case is remanded for resentencing by the trial court.

ADKINS, BOYD, OVERTON, SUND-BERG and HATCHETT, JJ., concur.

      . Art. V, § 3(b)(1), Fla.Const.; § 921.141(4), Fla.Stat. (1975).

      . The state asserts that there exist other facts relevant to the seizure of this evidence which are contained in affidavits not admitted into evidence by the trial judge. We denied a motion to supplement the record, however, and therefore do not consider those facts.

      . See State v. Ashby, 245 So.2d 225, 227-28 (Fla.1971).

      . See United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976); United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976).

      . We note that no motion had been made prior to trial, as is normally the preferred practice in Florida. This is not determinative, however, since our rule contemplates a motion during trial as well as before trial. Fla.R.Crim.P. 3.152(b)(1).

      . ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Joinder and Severance § 2.3(b)(ii) (1968).

      . The committee note that accompanies our rule indicates that it is based on ABA Standard 2.3(b). 33 Fla.Stat.Ann. 195 (1975).

      . See, e. g., Roberts v. State, 164 So.2d 817, 821-22 (Fla.1964).

      . We cannot, of course, assume that the jury ignored the court’s instruction to disregard counsel’s opening remarks.

      . Menendez argues as an independent ground on which to reverse his conviction that the trial judge repeatedly advised the jury that particular evidence introduced by the state was admissible only as to Menendez and not as to his co-defendant. These cautionary instructions were undoubtedly prompted by the co-defendant’s early requests for protection against trial prejudice that might otherwise result from the introduction and presentation of evidence connected only to Menendez’s participation in the crimes. There was nothing improper in these evidentiary rulings by the trial judge. In any event, our review is barred by the failure of Menendez to enter a contemporaneous objection, since these instructions did not constitute “fundamental error” in the trial proceeding. Cf. Clark v. State, 363 So.2d 331 (Fla.1978).

      . Menendez’s challenge to the death penalty statute based on Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), was recently resolved adversely to his position in Songer v. State, 365 So.2d 696 (Fla.1978) (on rehearing).

      . § 921.141(5), Fla.Stat. (1975). The improper findings were:
      5.That the defendant looted the body of his victim and then proceeded to stand over his victim’s lifeless body as he proceeded to pillage the contents of the store safe. 6. That when the defendant was discovered in the act of the commission of this crime he pointed his murderous weapon at a defenseless young woman who saved herself only by flight.
      7. This court has observed the demeanor and the action of the defendant throughout this entire trial and has not observed one scintilla of remorse displayed, indicating full-well [sic ] to this court that the death penalty is the proper punishment to be imposed in this particular case.

      . Elledge v. State, 346 So.2d 998, 1002-03 (Fla.1977).

      . § 921.141(6)(a), Fla.Stat. (1975).

      . § 921.141(5)(d) and (f), Fla.Stat. (1975). The trial judge was correct in considering the fact that the murder occurred during the course of a robbery and for pecuniary gain as a single aggravating circumstance. Provence v. State, 337 So.2d 783, 786 (Fla.1976).

      . § 921.141(5)(h), Fla.Stat. (1975).

      . § 921.141(5)(e), Fla.Stat. (1975). This circumstance is arguably supported by the fact that Menendez had used a gun fitted with a silencer.

      . State v. Dixon, 283 So.2d 1, 9 (Fla.1973). Compare the facts of this murder with those in Tedder v. State, 322 So.2d 908 (Fla.1975).

      . Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).

      . Menendez’s contention that the sentencing jury should have been instructed as to the standard of proof required to establish mitigating circumstances, and as to the standard by which aggravating and mitigating factors are to be weighed, comes too late. No request for such an instruction was offered to the trial court, and in fact, Menendez offered no evidence in mitigation at the sentencing hearing. Under these circumstances, we will not pass upon an alleged error in the instructions when the issue is raised for the first time on appeal.

      . There is no merit in Menendez’s contention that the state should have been required to provide defense counsel with advance notice of the aggravating factors on which it intended to rely. See Spinkellink v. Wainwright, 578 F.2d 582, 609 (5th Cir. 1978).

      . See Elledge v. State, 346 So.2d 998, 1002-03 (Fla. 1977).