author: TYSON, Judge.

text:
    Samuel Lee GOULD v. STATE.
    2 Div. 154.
    Court of Criminal Appeals of Alabama.
    May 18, 1976.

      Donald R. Harrison, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Joel E. Dillard, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The indictment by the Grand Jury of Dallas County, Alabama, charged the appellant with the robbery of one Lou Golson. The jury’s verdict found appellant “guilty as charged” and fixed punishment at fifteen years imprisonment in the penitentiary. The trial court then entered judgment in accordance with this verdict.

At 11:00 p. m., October 5, 1974, two black males robbed the Thrif-T-Sak on Jeff Davis Avenue in Selma of $133.94.

One of these men, Sammy Robertson, called as the State’s first witness at trial, testified that both he and the appellant were “sitting around” at LeGrand Rivers’ house on the night of October 5, when Rivers suggested they could get “some good money” at the Thrif-T-Sak on Jeff Davis. Robertson testified that after finding a sheet of paper and writing a note to the effect that he had a gun, meant business, and wanted all the money, he and the appellant got in Rivers’ car, drove to the rear of Leet’s Junk Yard and parked. Robertson explained that they then proceeded on foot to the Thrif-T-Sak, handed the cashier the note, and fled back to LeGrand Rivers’ house with the money.

Lieutenant George Jones of the ABI and Detective Mike Capps of the Selma Police Department both testified that they took part in a search of the residence of LeGrand Rivers’ located at 1427 Washington Street in Selma, that in a room rented by Sammy Robertson, they discovered a notebook and various articles of clothing including a “yellow outfit” (State’s Exhibits E & F) and a black leather jacket (State’s Exhibit A).

Detective Douglas Little of the Selma Police Department stated that, while investigating the robbery, he found a crumpled note (State’s Exhibit H) behind Leet’s Junk Yard which read, “I have a gun in my hand. Put all the money in my hand. I do not play. I mean business. Put the money in a paper bag! I mean business.”

Thrif-T-Sak’s cashier, Lou Golson, testified that at 11:00 p. m., on October 5, 1974, two black males approached the front counter, that the shorter of them who was wearing a black leather jacket she identified as State’s Exhibit A, handed her a note which she identified as State’s Exhibit H. Mrs. Golson testified that the taller of the two men whom she positively identified as the appellant, was wearing a “yellow outfit” which she identified as State’s Exhibits E and F. She stated that the appellant, who appeared to be in charge, told her to “put the money in a bag.” “Terrified,” Mrs. Golson did as she was told. After she handed appellant the money, he said, “One of you is going with us,” and reached behind the counter and grabbed Ruby Teal, another employee, and dragged her to the front door where she broke away and ran back behind the counter. Mrs. Golson testified that at this point appellant asked the shorter man, whose right hand had remained beneath his jacket since he entered the store, for the gun, but that he was already outside and simply replied, “Come on, let’s go,” and the appellant followed. Finally, Mrs. Golson stated that she identified both Robertson and the appellant at police headquarters less than two hours after the robbery, but that by this time both men had changed clothes.

Two other employees who were in the Thrif-T-Sak at the time of the robbery, Ruby Teal and Kenneth Nichols, both corroborated Lou Golson’s testimony in every detail with the exception of Mrs. Teal’s inability to positively identify the appellant.

The appellant, Sammy Lee Gould, testified that the first time he saw Robertson on October 5, 1974, was around midnight at LeGrand Rivers’ house where Robertson boarded, that Rivers and Marty Williams were there also. Appellant stated that after he left Rivers’ house, he was arrested on a DWI charge and that Sammy Robertson was with him at the time. Appellant explained that he often went by the ThrifT-Sak to buy beer but that he did not go there on the night of the robbery. He also identified State’s Exhibits E and F as the yellow clothing that Marty Williams had been wearing on the night of October S, 1974, and pointed out that he, appellant, had been wearing something else at the time of his arrest.

I

During the trial court’s qualification of the jury, Mrs. Velberta Chestnut acknowledged that she was related to defense counsel. Hearing this, the judge asked, “What is your relationship, if you want to admit it, to Mr. Chestnut?”

Suffice it to say that we are not in accord with appellant’s contention that this remark evidenced the trial court’s contempt for defense counsel, thereby bringing him into ridicule. Rather, we agree with the State that the likely explanation would be “the traditional reluctance of some elderly ladies to disclose their ages, or the fact that they are old enough to be grandmothers or great-aunts of men old enough to practice law.”

In support of this interpretation of the trial court’s query of Mrs. Chestnut, we note the absence of any objection by defense counsel, in effect, a silent admission that the trial court’s remark did not in fact carry the connotation now suggested by appellant. No error is shown.

II

After asking Sammy Robertson only a few questions, it became apparent to the District Attorney that Robertson had changed his story; that contrary to his pretrial statements he was now attempting to exonerate the appellant. Faced with this turn of events, the District Attorney, Mr. Morrow, made the following statements:

“MR. MORROW: I think I have the right to refresh his recollection and have him deny it, then I have the right to impeach, because obviously he’s turned into a hostile witness and there’s some collusion somewhere because two minutes ago I talked to him.
“MR. CHESTNUT: We object to that unwarranted assumption by some collusion somewhere. The only person that’s had contact with him was you.
“MR. MORROW: He went to jail to eat, I don’t know.
“THE COURT: I think you can take him as a surprise witness.”

Appellant made neither a motion to exclude nor motion for a new trial. Furthermore, as may be seen, his objection to the District Attorney’s statement that “there’s some collusion somewhere,” was never ruled on by the trial court. We are therefore of the opinion that error to reverse is not here shown.

While this opinion should not be understood as necessarily an approval of the District Attorney’s remark here in question, West v. State, 54 Ala.App. 647, 312 So.2d 45, cert. den. 294 Ala. 775, 312 So.2d 52, Robertson did in fact while on the witness stand perjure himself in front of the jury. Viewed in this posture, we are of the opinion that reversible error is not shown.

Ill

Appellant next argues that the State failed to corroborate the testimony of Sammy Robertson wherein he identified the appellant as his accomplice. More specifically, appellant asserts that although two eyewitnesses, Lou Golson and Kenneth Nichols, also identified appellant, that their identifications were tainted and inadmissible and that this cause is therefore due to be reversed in view of the well-established rule which forbids a conviction based solely on the uncorroborated testimony of an accomplice.

Initially, we point out that appellant neither objected to, nor moved to exclude Golson’s and Nichols’ testimony identifying him as one of the two robbers.

Further, both Mrs. Golson and Kenneth Nichols made it abundantly clear that their identifications had an independent origin; that they were based solely on their observations of appellant on the night of the robbery. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411.

Finally, even upon the merits, the constitutional issues raised by appellant are inapplicable to the facts of the instant case. For instance, Mrs. Golson identified appellant at police headquarters less than two hours after the robbery. Appellant’s lack of counsel at this embryonic stage of the proceedings did not violate his constitutional rights. See Kirby v. Illinois, supra; Cannon v. State, 53 Ala.App. 509, 301 So.2d 272; Haggler v. State, 49 Ala.App. 259, 270 So.2d 690.

For the reasons mentioned above, error is not shown.

IV

The same witnesses whose identifications of appellant we upheld in Part III of this opinion, also identified State’s Exhibits E and F as the clothing worn by appellant on the night of the robbery, after which the trial court admitted same into evidence.

Clothing of an accused which tends to corroborate or disprove, illustrate or elucidate, any other evidence, or to identify any of the parties, or connect the accused with the crime is clearly admissible. Flannagin v. State, 289 Ala. 177, 266 So.2d 643; Barbour v. State, 262 Ala. 297, 78 So.2d 328; Harnage v. State, 49 Ala.App. 563, 274 So.2d 333, Reversed on other grounds, 290 Ala. 142, 274 So.2d 352. State’s Exhibits E and F were therefore properly admitted into evidence.

We have carefully examined the record and find same to be free from error. This cause is therefore due to be and the same is hereby

AFFIRMED.

HARRIS, DeCARLO and BOOKOUT, JJ., and SIMMONS, Supernumerary Circuit Judge, concur.

       In- his subsequent testimony however, Robertson did- recant and identify appellant as Ms accomplice iu the robbery. See the synopsis of Robertson’s trial testimony, supra.


source: Caselaw Access Project

license: Public Domain

text:
    Barry WILLIAMS, alias v. STATE.
    3 Div. 513.
    Court of Criminal Appeals of Alabama.
    May 18, 1976.

      Carl O. Pilgrim, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and G. Daniel Evans, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The indictment charged the appellant with the first degree murder of Lester Max Lee “by shooting him with a pistol.” The jury found the appellant guilty of murder in the second degree and fixed punishment at life imprisonment. The trial court then set sentence in accordance with this verdict and following a hearing denied appellant’s motion for new trial.

Briefly stated, this case arose from a homicide which occurred on the night of February 5-6, 1975, wherein the body of the deceased Max Lee was found in an automobile which struck the bridge on Court Street at the intersection of 1-85 in Montgomery, Alabama. Without detailing the testimony of the several police officers who participated in the investigation, it is sufficient here to say that at least one of the officers had talked with a reliable informant who knew of the whereabouts of the appellant and who had been shown to be reliable in the past and who told the officer as to the residence of the appellant Williams. Moreover, other officers had arrested the appellant in the past carrying a weapon and there was a trail of blood from the vehicle and a statement from two persons who saw á black man wobbling away from the automobile which struck the bridge as aforesaid.

A .38 caliber bullet was removed from the body of the deceased and ballistics test showed that this matched a .38 caliber pistol found in the possession of the appellant at his home several days later. Also, there was bloody clothing found at the home of the appellant and the blood on the clothing was of an A-B type as was the blood found at the scene in question. This is a rare blood type. A careful examination of the pistol in question showed that it had been rubbed or scraped against a rough or street surface. A button found at the scene matched the sweater and other buttons found at the home of the appellant. Fibers found at the scene matched the clothing found at the home of the appellant. It was established that the deceased had blood type O.

Moreover, the officers found that the appellant had been to Jackson Hospital for treatment of a fractured ankle on the date in question. The appellant was known by one of the officers to carry a .38 caliber pistol as he had been arrested on other occasions with such a weapon.

There were no powder burns on the person of the deceased. It was determined that the cause of death was a pistol shot to the brain of the deceased Lee. Moreover, a holster was found in the wrecked automobile which corresponded to the weapon in question. Appellant’s defense essentially was that from persons who observed the deceased. The deceased was last seen in a newsstand in downtown Montgomery where he had been inside watching movies. The deceased had been drinking as had the appellant according to his own testimony. The deceased, according to the appellant, offered him a ride near a downtown Montgomery hotel and he got in the car and soon afterwards the deceased confronted íáim with a pistol and they began to struggle over the gun. The appellant maintained he asked the deceased to let him out and that it was only after he had seen that he was going to shoot him that he pulled his own weapon and fired. He said that the deceased was trying to drive the automobile into the bridge and that he was thrown to the back of the car by the impact and that he had to kick open the window to get out of the vehicle. The vehicle, after striking a bridge, had struck another automobile. The appellant testified that he told the physician who treated him the next day that he had “fallen off a wall and broke his ankle.” The arresting officers stated that he had a cast on his leg at the time of his arrest.

I

The appellant had filed a pretrial motion to suppress and again at trial asserted that the officers lacked probable cause to obtain the search warrant with which they entered the home of the appellant and found the pistol, and' bloody clothes. The facts above set forth clearly establish probable cause and we determine that the search warrant was properly is: sued and therefore the ruling on the motion to suppress was correct. It is clear that the officers here had probable cause. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; Bassett v. State, 49 Ala.App. 733, 275 So.2d 713; Bates v. State, 51 Ala.App. 338, 285 So.2d 501.

II

The appellant next asserts that the record does not reflect that the jury was sworn. The minute entry in this cause reflects the following:

“This day came the State by its District Attorney and came also the defendant in his own proper person and by attorney, and the defendant having heretofore filed a waiver of arraignment and plea of not guilty, and this being the date set for the trial of said cause, the defendant now in open court announces himself ready for trial. Thereupon came a jury of good and lawful men, to-wit: Grady D. York and eleven others who having been fully empaneled and sworn according to law upon their oaths do say: ‘We the jury find the defendant guilty of murder in the second degree and fix his punishment at life in the penitentiary.’ ”

It is clear that the above showed sufficient compliance with provisions of Title 30, Section 58, Code of Alabama 1940. Peterson v. State, 74 Ala. 34.

We also note that the minute entry above quoted reflects that the appellant filed a written waiver of arraignment after consultation with counsel. This is in accordance with the provisions of Section 2, Act No. 314, Acts of Alabama, Special and Regular Sessions, 1973 Volume I. This has been approved by the Supreme Court of Alabama in Hudson v. State, 1976, 295 Ala. —, 333 So.2d 592.

III

We have examined the motion for discovery and find that those items to which the appellant was entitled were properly turned over to his counsel of record prior to trial. The balance of the remaining “scatter gun type allegations” were properly denied. Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666; Fortenberry v. State, 55 Ala.App. 1, 312 So.2d 573.

IV

The able trial judge gave an extensive oral charge to which after extension, as requested, there was no exception. In addition, the trial judge gave 38 of the written requested charges. We have examined the remaining refused charges and determined that they were either affirmative in nature, and therefore properly refused under the evidence, or were incorrect statements of the applicable legal principles, hence their refusals were proper. Title 7, Section 273, Code of Alabama 1940.

We have carefully examined the record as required by law and find same to be free from error. The judgment of the trial court is hereby

AFFIRMED.

HARRIS, DeCARLO and BOOKOUT, JJ., concur.


text:
    Mary Frances HOUSTON v. STATE.
    6 Div. 177.
    Court of Criminal Appeals of Alabama.
    May 18, 1976.
    Sheffield & Dunn, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery and Quentin Q. Brown, Jr., Asst. Atty. Gen., Birmingham, for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

This appeal originates from a judgment rendered at nisi prius wherein appellant’s petition for a writ of error coram nobis was denied.

It appears in the petition that appellant was convicted by a jury of murder in the first degree on her plea of not guilty and punishment fixed at life imprisonment. A motion for a new trial was duly presented and denied.

Defendant, within the time provided by law, appealed from the judgment of conviction. The appeal not only presented the trial proceedings but also the motion for a new trial and the evidence thereunto appertaining.

Our record shows that the transcript of the proceedings and evidence in the trial court were not filed within the time provided by law, and upon motion of the Attorney General, the appeal was dismissed. The dismissal was also authorized by law.

We wish to note that appellant was represented at her trial and on her motion for a new trial 'by counsel of her own choice and employment; also on the appeal that was dismissed.

Appellant on the instant appeal seeks to review asserted errors that occurred at the trial, including the contention that the court erred in overruling the motion for a new trial.

There was no new evidence taken at the coram nobis hearing below. The transcript proceedings at nisi prius and the evidence on the motion for a new trial were introduced at coram nobis. The same judge presided at the trial in chief and on the motion for a new trial. We hold that the asserted errors occurring at the trial of the case in chief cannot now be heard, but only on the appeal , which was taken but not perfected by filing the transcript in time. We again note that the original proceedings in the trial court and in the instant review were not in forma pauperis. Groce v. State, 48 Ala.App. 709, 267 So.2d 499; Butler v. State, 279 Ala. 311, 184 So.2d 823.

The Supreme Court in Ex parte Rudolph, 276 Ala. 392, 162 So.2d 486, observed as follows:

“A writ of error coram nobis issues for the correction of a judgement entered in ignorance of certain matters of fact which, if they had been known to the court rendering the" judgment, would not have been entered. Cauley v. State, 34 Ala.App. 111, 37 So.2d 153. Here, no such facts are presented and there is no allegation that any alleged facts would have prevented the judgment of conviction from being entered by the trial court.’’

It appears that two or three witnesses testified on this motion for a new trial that after the trial was over and results thereof appeared in the news media, they made known that they were near the scene of the Shooting episode and that two strange men, not defendant, fired some shots of which -one resulted in the death of the victim, for whose death defendant (appellant) was tried and convicted.

But it appears in the original record of the trial, now on file in this Court, that defendant took the stand and testified:

“A. He said, ‘I’m not going ’til I catch that dog.’ I said, ‘Go ahead, please.’ He said, ‘I’m not going to leave.’ I said, ‘Will you leave here, Mister?’ He still stood there. He said, T ain’t going no where, until I catch that damn dog today.’ I said, ‘Do you see a dog?’ He said, ‘No, you done hid it.’ I said, ‘No, I ain’t been over here long enough to hide nothing. I just walked around here to get a piece of wire. Just left the truck.’ He wouldn’t move. So, I asked him again. I said, ‘you going to leave or not?’ He said, ‘You don’t scare me, I ain’t going to leave, until I catch that dog.’ Then I yelled at him, he still stood there. And then later I shot to scare him. He still stood there. I shot again to scare him, he still stood there. And when he did whirl and run that’s what hit him. The third bullet hit him.
“Q. Did you shoot to kill him ?
“A. No, sir, I tried to scare the man away.
“Q. At the time when you left there, did you know that you had hit him?
“A. No, sir, I didn’t know I had hit him. I got in the truck and left.’’

Thus, it appears that defendant admitted that she was the one who fired the three shots and not these strangers upon whom the absent witnesses pinned the guilt. The victim was a dogcatcher.

As to whether it was wise or unwise for defendant to have taken the stand is not for the consideration of this Court. The defendant’s testimony refuted that of the absent witnesses who testified on the motion for a new trial.

The court at nisi prius denied the motion for a new trial; the lower court denied the petition for writ of coram nobis. It would be pure speculation as to what the defendant would have testified had these witnesses been available when she was tried; also to what the jury verdict would have been. We are not convinced that the result would have been any different. At least the trial court heard the evidence when the motion was heard and had the advantage of seeing the witnesses on the stand. We are unwilling to disturb. Schefano v. State, 231 Ala. 391, 164 So. 902.

The judgment denying the petition for writ of coram nobis is affirmed.

AFFIRMED.

The foregoing opinion was prepared by BOWEN W. SIMMONS, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

TYSON, HARRIS, DeCARLO and BOOKOUT, JJ., concur.


text:
    UNIVERSAL MANUFACTURING CORPORATION and Travelers Insurance Company v. Tressie L. BASS.
    No. 48709.
    Supreme Court of Mississippi.
    June 1, 1976.
    Daniel, Coker, Horton, Bell & Dukes, Alben N. Hopkins, Gulfport, for appellants.
    Pyles, Cupit & Maxey, Jackson, for appellee.
    Before INZER and PATTERSON, P. JJ., and SUGG, J.
   REVERSED AND RENDERED.

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


text:
    Vivian L. SHUMPERT v. Hersey L. TANNER.
    No. 48689.
    Supreme Court of Mississippi.
    May 25, 1976.
    Stephen J. Kirchmayr, Jr., Jackson, for appellant.
    Young, Young & Scanlon, Robert R. Marshall, Jackson, for appellee.
    Before GILLESPIE, SUGG and WALKER, JJ.
   GILLESPIE, Chief Justice, for the Court:

Hersey L. Tanner filed suit in the Chancery Court of Hinds County against Vivian L. Shumpert, seeking a decree declaring that Shumpert held title to a house and lot as trustee for him. From a decree declaring Shumpert held title to the property as trustee for Tanner and directing Shumpert to convey the property to Tanner, Shum-pert appeals.

Tanner’s version of the .facts is as follows. In 1969, he attempted to purchase the residence in question but “[his] credit was not stout enough for the loan company to let [him] have the money,” He agreed with Shumpert, whose credit was good, that he would pay the down payment and use her credit to purchase the property in her name, “and she said after [his] credit was stout enough, after [he] built it up, that she would sign the house over to [him].” Tanner also contends that he made the down payment of about $500, the monthly payments on the mortgage, and paid the closing costs, but admits that when the property was up for foreclosure, Shumpert paid $481 to prevent foreclosure. He has never repaid the $481, but has offered to do so.

Shumpert’s version of the facts, supported to some extent by her sister, Laquette Tanner, the wife of complainant who was separated from him at the time of trial, is as follows. . When Tanner and Laquette were planning to get married, Tanner tried to buy the house, but his loan did not go through and she, Shumpert, decided to buy the house as an investment and let Tanner and her sister live there if Tanner would pay the mortgage notes, which were to be considered as rent. Shumpert denies that Tanner paid the down payment and iays that she paid it. She emphatically denies there was any agreement on her part to deed the property to Tanner at some later date.

On or about May 14, 1969, the property was deeded to Shumpert and she executed a deed of trust to Bailey Mortgage Company, securing $11,150 at 71/2% interest, payable $78.05 per month on the first day of each month until May, 1999.

We are of the opinion, and so hold, that the evidence did not rise to that degree of clarity required to establish a resulting trust. In other words, the evidence was not clear and convincing. The chancellor recognized this. In his opinion he said, “We may never know what the facts are, all we can depend on is what was said from the witness stand. There may be a big difference between the actual facts and what was said from the witness stand. But what was said from the witness stand was all that we have.”

No rule of law is more firmly established in this State than the one which requires that a constructive or resulting trust must be established by clear and convincing evidence. Conner v. Conner, 238 Miss. 471, 119 So.2d 240 (1960).

Even if the evidence had been clear and convincing that Tanner paid the down payment and had an agreement with Shumpert that she would convey the property to him after his credit was sufficient for him to finance the transaction, still Tanner would not be entitled to the relief prayed for. There is no proof that Tanner’s credit would enable him to borrow the money to purchase the house. The decree appealed from requires Shumpert to deed the property to Tanner upon Tanner’s payment of $481 that Shumpert had paid to avoid foreclosure. That would leave Shumpert liable for the mortgage notes until 1999 with all the implications involved in such liability. It would be inequitable to burden Shum-pert with this liability. She would be subject to a deficiency judgment in case of foreclosure.

A resulting or constructive trust is a fiction of equity. It is the formula through which the conscience of equity finds expression. It is when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest that equity converts him into a trustee. Cf. Russell v. Douglas, 243 Miss. 497, 138 So.2d 730 (1962). In the posture of the present case, it would be inequitable to adjudge Shumpert a trustee for Tanner. And for this additional reason, the trial court erred.

For the reasons stated, we hold that the trial court was in error in adjudging that Mrs. Shumpert held title to the property in question as trustee for Tanner, and it follows that the agreement to convey the property to Tanner, if indeed such an agreement existed, is not enforceable under the statute of frauds. The decree of the trial court is reversed and judgment entered here dismissing the bill of complaint.

REVERSED AND RENDERED.

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


author: By the Court en banc.

text:
    Johnny L. MILLER v. STATE of Mississippi.
    No. 49350.
    Supreme Court of Mississippi.
    June 1, 1976.
    George L. Dorrill, Kosciusko, for appellant.
    No response to motion filed by State.
   By the Court en banc.

MOTION SUSTAINED.

SMITH and LEE, JJ., took no part.


author: BROOM, Justice, for the Court:

text:
    Sarah Heflin PETTY v. STATE of Mississippi.
    No. 49086.
    Supreme Court of Mississippi.
    May 25, 1976.
    McKee, McDowell & McAlpin, Stark-ville, for appellant.
    A. F. Summer, Atty. Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   BROOM, Justice, for the Court:

Manslaughter conviction (upon an indictment charging her with the murder of her husband)' and a twenty year penitentiary sentence resulted from appellant’s (Petty’s) trial in the Circuit Court of Oktibbe-ha County. We affirm.

Appellant argues that: (1) State’s Instruction No. 3 was error; (2) the lower court should have applied the Weathersby Rule; and (3) the verdict was against the overwhelming weight of the evidence.

Testimony shows that between 7:00 and 8:00 o’clock p. m. on December 19, 1974, the appellant called Mr. Smith, her neighbor, to come to her house. Upon arrival, Smith found the dead body of appellant’s husband. Smith stated that appellant told him that an intruder robbed her husband and shot him five times with a pistol. Subsequently, she told the same version to the officers, including Special Investigator Bill Harpole. Later she admitted to Har-pole that she killed her husband, whom she referred to as a “mean man” and “she would do it again.” After Harpole, using a magnet, recovered the pistol from the well, appellant took a polygraph test and then confessed in writing that she killed her husband in a fight, but she said that the killing was “in self-defense.”

State’s Instruction No. 3 is said to be error because it did not require the jurors to put themselves in appellant’s place and judge her acts by facts and circumstances surrounding her at the time of the incident. At trial the only objection to the instruction was a general objection that it was not a proper statement of the law. This argument is not properly before us because (under Rule 42 of this Court) we will not consider argument based on the granting of an instruction unless specific objection was made below. Evans v. State, 315 So.2d 1 (Miss.1975); Entrican v. State, 309 So.2d 851 (Miss.1975). Moreover, instructions similar to that complained of have been approved by this Court in several cases. It was appellant’s burden to request that the jury be instructed “to put themselves in defendant’s place” if such an instruction were desired. Newell v. State, 308 So.2d 71, 78 (Miss.1975).

Next it is argued that a directed verdict should have been granted at the trial based on the Weathersby Rule. Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933).

Interesting is the fact that the appellant’s version of the killing was presented during the trial by the state’s introduction of her written statement admitting that she killed her husband, but that “it was in self-defense.” At trial she did not testify in her own behalf and upon the record as made out, we do not agree that the Weath-ersby Rule is applicable. Her version in several respects is not reasonable and her “self-defense” argument is substantially contradicted by testimony of other witnesses. Her own version, if it can be accepted as such, is certainly contradictory in that she originally contended that a robber killed her husband, and then she admitted killing him. Another factor is her attempt to conceal participation in the shooting by placing the pistol in the well. Her description of the episode as a “fight” is at least to some extent contradicted by the fact that there were no cuts, bruises, scratches or other evidence of a fight upon her person after the killing. This is not one of those rare cases where the Weathersby Rule will operate to acquit an accused. Null v. State, 311 So.2d 654 (Miss.1975); Sartain v. State, 311 So.2d 343 (Miss.1975).

Finally, it is argued by appellant that the jury verdict was against the overwhelming weight of the evidence. We find no merit in this argument because appellant’s theory of self-defense was considered by the jury upon instructions covering both murder and manslaughter. We cannot say that the jury erred in rejecting her plea of self-defense, but it is fair to say on this record that she was fortunate in that the jury found her guilty of manslaughter rather than murder, which it could have done.

AFFIRMED.

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


text:
    Jack CARTER v. Revived in Name of Marjorie Hollingsworth TIMS, Executrix of Estate of Lowry Tims, Deceased, et al.
    No. 48696.
    Supreme Court of Mississippi.
    June 1, 1976.
    Jacobs, Griffith & McIntosh, Cleveland, for appellant.
    Alexander & Johnston, Cleveland, for appellees.
    Before GILLESPIE, C. J., PATTERSON, P. J., and WALKER, J.
   AFFIRMED.


author: WALKER, Justice, for the court:

text:
    Lawyer C. CLARK, Sr. v. STATE of Mississippi.
    No. 49150.
    Supreme Court of Mississippi.
    June 1, 1976.
    Luckett, Barnwell, Luckett, Luckett & Thompson, Clarskdale, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and WALKER and BROOM, JJ.
   WALKER, Justice, for the court:

This is an appeal from the Circuit Court of Coahoma County, Mississippi, affirming a judgment of the county court finding the appellant, Lawyer C. Clark, Sr., guilty of disturbing the peace and resisting arrest and imposing upon him a sentence of ninety days in jail and a fine of $500.

.On March 28, 1974, Lawyer C. Clark, Sr., was tried by the Police Justice Court of the City of Clarksdale of Coahoma County, Mississippi, on charges of disturbing the peace and resisting arrest. Upon conviction, he appealed to the County Court of Coahoma County, Mississippi. A timely request was made for a trial by jury pursuant to Mississippi Code Annotated section 9-9-33 (1972) which provides in part: “Either party to a suit or proceeding in the county court may demand a jury . . .; in criminal cases if a jury is desired by either party the demand shall be made at the time the defendant is arraigned.” Appellant’s timely demand for a jury trial was overruled. The causes were consolidated by agreement for trial and the trial court, over appellant’s objection, heard the case without a jury, found him guilty on both charges and sentenced him to ninety days in jail and to pay a fine of $500.

The lower court evidently based its decision not to accord the appellant a trial by jury on this Court’s holding in Hinton v. State, 222 So.2d 690 (Miss.1969) and McGowan v. State, 258 So.2d 801 (Miss.1972) that “. . . where the confinement is not more than six months and the fine not more than $500, that the offense is a petty one and the accused is not entitled to a jury trial . . . .” However, that rule has only been applied in cases involving contempt of court and has not been extended to other criminal offenses.

In the case of Newton v. State, 211 Miss. 644, 52 So.2d 488 (1951), the defendant was tried and convicted. in the County Court of Forrest County, Mississippi, on an affidavit charging him with the unlawful sale of intoxicating liquor and was sentenced to pay a fine of $500 and serve ninety days in jail. He argued on appeal that the county court erred in denying him a trial by jury. After finding that the defendant had not waived his right to a trial by jury, the Court said in reversing the judgment of the lower court and quoting from City of Jackson v. Clark, 152 Miss. 731, 118 So. 350 (1928) that:

“The right of trial by jury is a cherished one, and the policy of the courts everywhere seems to be liberal in safeguarding this right against infringement. It was incorporated into our own Constitution of 1890, section 31 thereof providing: ‘The right of trial by jury shall remain inviolate.’ See, also, 35 C.J. 147; 16 R.C.L. 198; Isom v. [Mississippi Central] R. R. Co., 36 Miss. 300.
“This constitutional provision must be interpreted to mean that it shall never be destroyed, annulled, nor so hampered or restricted by legislation as to make the provision a nullity. It does not mean that it shall be totally immune from all reasonable regulations. Any reasonable regulation, free from arbitrary and unreasonable provisions regarding the enjoyment of the right, will not be a denial or impairment thereof. 16 R.C.L. 196, and authorities cited. . . .” (211 Miss. at 648-649, 52 So.2d at 489).

We do not think that the language in Newton and City of Jackson, supra, forecloses the possibility that the Legislature may, at some future date, dispense with a trial by jury in cases involving petty offenses. This seems to be contemplated by Article 3, Section 27 of the Constitution of 1890 which provides in part: “. . . the legislature . . . may authorize prosecutions before justices of the peace, or such other inferior court or courts as may be established, and the proceedings in such cases shall be regulated by law.”

In Ex parte Wooten, 62 Miss. 174 (1884), this Court had occasion to interpret a similar provision in the Constitution of 1869 and Chief Justice Campbell, speaking for the Court, said:

Section 31, art. 1, of the constitution of this State empowers the legislature to authorize prosecutions before justices of the peace or other inferior courts of its creation in cases of misdemeanors of the character enumerated, viz.: petit larceny, assault and battery, and others mentioned for illustration, and to regulate the proceedings in such cases. So far from its being the constitutional right of one thus prosecuted before a justice of the peace or other inferior court to be tried by a jury, it may be seriously doubted whether the introduction of a jury by act of the legislature is not a marring of the constitutional scheme for the trial of petty offenses by a justice of the peace or other inferior court to be created. There is no allusion to a jury in the section cited, and the language employed suggests a trial by the justice of the peace or othei' court, rather than by a jury in such court. (62 Miss. at 176). (Emphasis added).

cf. Telheard v. Bay St. Louis, 87 Miss. 580, 40 So. 326 (1906).

However, as the law now stands, section 9-9-33 accords to parties in county court, except contempt of court cases, a jury trial when timely demanded and not otherwise waived.

We are of the opinion that the county court erred in overruling appellant’s motion for a jury trial and this cause is therefore reversed and remanded for a new trial.

REVERSED AND REMANDED FOR A NEW TRIAL.

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


text:
    Warren G. MEGEHEE v. Henry KROHE.
    No. 48719.
    Supreme Court of Mississippi.
    June 1, 1976.
    Brown & Perkins, Macon, for appellant.
    Conrad Mord, Macon, for appellee.
    Before GILLESPIE, C. J., PATTERSON, P. J., and WALKER, J.
   AFFIRMED.


author: ROBERTSON, Justice:

text:
    G. C. COATS, Jr. and Mrs. Rosalie Coats v. J. F. TAYLOR and Mrs. Doris I. Taylor.
    No. 48694.
    Supreme Court of Mississippi.
    June 1, 1976.
    Adams & Odom, Meridian, for appellants.
    Corey & Corey, Meridian, for appellees.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   ROBERTSON, Justice:

By original bill of complaint sworn to on March 6, 1974, J. F. Taylor and his wife, Mrs. Doris I. Taylor, brought suit in the Chancery Court of Lauderdale County against G. C. Coats, Jr. and his wife, Mrs. Rosalie Coats, for $1,713.67, which represented a down-payment of $1500 and $213.-67 (the first monthly installment on a promissory note to be executed) on the purchase of a residence.

The complainants averred that an oral contract had been entered into on February 8, 1974, for the purchase of the residence, that their check was given on that date, and that the deed, note and deed of trust were to be prepared on that date and submitted to them for their approval.

Complainants then averred:

“Finally such papers were prepared on February 12, 1974, and copies thereof were submitted to the complainants for examination by them. Upon examination, the complaints discovered that provisions had been inserted in the proposed deed, which provisions had never been discussed, and which provisions were not acceptable to the complainants. The complainants then notified the defendants that they were not satisfied with the papers and that they had decided not to purchase the property. They demanded the return of the money which defendants had received by cashing the aforesaid check contrary to their verbal agreement. The defendants have refused to return such money.” (Emphasis added).

Defendants answered:

“Defendants admit that the papers were supposed to have been submitted on February 8, 1974 but that because of a delay not occasioned by themselves the papers were prepared and submitted to the complainants on February 12, 1974. It is admitted that certain provisions were included in the deed which had not been discussed with the complainants and if complainants had objected to same, same would have been removed from said deed upon their request; however, the complainants did not make any specific objection to the deed; only informed your defendants by undated letter, a copy of which is attached hereto as Exhibit “A” and prayed to be made a part hereof; said letter having been received by your defendants around the last of February 1974. After receiving such letter marked Exhibit “A,” your defendants notified complainants that they were willing to discuss whatever objections were contained in the deed and remove same. However, this offer has never been answered. It is admitted that the complainants requested the return of the down-payment and that same has not been returned as your defendants have fully complied with the verbal agreement and have been and are still ready, willing and able to complete the purchase and sale of the property and have in no way been in default of any agreement and therefore, are entitled to retain said monies.”

The undated letter, Exhibit “A”, recited:

“Mr. and Mrs. Coates:
We are not satisfied with the contract as drawn and have decided not to purchase the property.
Please refund the amount of the check we gave you.
Enclosed are the 2 keys you gave us, they have not been used.
“Sincerely,
/s/ Joe Taylor
Joe Taylor”

Complainants by written motion requested the court to set this matter for hearing on bill and answer, and the court sustained this motion.

The complainants and the defendants submitted briefs, and the court by final decree on December 18, 1974, entered judgment against the defendants for $1,713.67 “plus all costs herein expended”, granted a lien on the property to secure the payment of the judgment, and provided that if the defendants did not pay the judgment in full within 45 days that the chancery clerk, upon the request of the complainants, would sell the property at public sale after publishing notice for three weeks.

Our holding in Vanlandingham v. Jenkins, 207 Miss 882, 43 So.2d 578 (1949), is dis-positive of this case. In Vanlandingham, there was an oral agreement for the purchase of property. The Vanlandinghams put up $400 as earnest money with the real estate firm of Holcomb and Longino. Jenkins had his attorney, E. M. Yerger, prepare the necessary papers. In affirming the decree of the chancery court awarding the earnest money to defendant Jenkins, this Court first stated the pertinent facts:

“At this meeting, the Vanlandinghams objected to the notes being in the sum of $50.74, instead of $50, and Jenkins agreed to reduce the notes to $50 per month. Then, the Vanlandinghams demanded an abstract of title. Mr. Yerger explained that he had examined the records and was prepared to give them his opinion of title, and would furnish his abstract within a few days, as soon as it could be gotten up from the records. The Vanlandinghams refused to close the trade without the abstract of title, and Mr. Yerger told them he would have to set another day for the closing of the transaction, after the abstract had been prepared. • This conference was in the late afternoon, and after adjournment the Vanlandinghams notified Mr. Yerger that the trade was off, and they would not go through with their contract. The Vanlandinghams then demanded the return of the $400 paid to Holcomb and Longino as earnest money.” 207 Miss. at 888, 43 So.2d at 580.
“The appellants also argue that the deed which was tendered to the grantees contained a provision requiring the grantees to pay the taxes for the current year, in contradiction of the agency contract which provided that the grantor was to pay the taxes.” 207 Miss. at 890, 43 So.2d at 581.

This Court continued, in its opinion:

“It is clear from the evidence in this record that at the meeting in Mr. Yer-ger’s office the Vanlandinghams urged only two objections — one was that the monthly notes were in the amount of $50.-74, and the other was that no abstract of title had been furnished. No objection was raised to the form of the deed requiring the Vanlandinghams to pay the taxes. The record shows that Jenkins agreed to reduce the notes from $50.74 to $50 and agreed to furnish the abstract of title. It is reasonable to assume that he would also have agreed to strike from the deed the provision in regard to the taxes had any request been made of him that he so do. Anyhow, it is too late for him to now complain of any objection that he did not at that time make, and that the grantor did not have an opportunity to meet. This has been the law of this State since 1875, when Moak v. Bryant, 51 Miss. 560, was decided.” 207 Miss. at 890, 43 So.2d at 581.

Actually the law of this State on this particular point has been settled since 1847, when in deciding Sims v. Hutchins, 8 Sm. & M. 328 (Miss.1847), the High Court of Errors and Appeals for Mississippi said:

“The only grounds for such a recovery are the unwillingness or inability of the vendor to convey according to contract, or a mutual abandonment of the contract. That the contract was not in writing may be good ground of defence, when specific performance of the contract is sought against the vendor, for whose benefit the statute was passed; but if the vendor is willing to perform, the price paid cannot be recovered back. Contracts by parol for land are generally regarded as voidable merely. Philbrook v. Belknap, 6 Verm.R. 383. On this principle it is clear, that if the vendor does nothing to avoid the contract, but on the contrary is both able and willing to perform, the vendee cannot recover what he has paid.
The precise point now before us was raised in the case of Dowdle v. Camp, 12 Johns. 451, and it was holden that the vendee could not recover back his money without some default of the vendor.” 8 Sm. & M. 328 at 330-31.

The bill of complaint should have been dismissed.

The judgment of the chancery court is reversed, and judgment rendered here for the appellants, G. C. Coats, Jr. and wife, Mrs. Rosalie Coats, dismissing the bill of complaint.

REVERSED AND RENDERED.

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


text:
    James Earl JOHNSON and Willie Taylor, Jr. v. STATE of Mississippi.
    No. 49119.
    Supreme Court of Mississippi.
    June 1, 1976.
    Royals & Taylor, Jackson, for appellants.
    A. F. Summer, Atty. Gen., by Catherine Walker, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., INZER, P. J., and SUGG, J.
   AFFIRMED.


author: PATTERSON, Presiding Justice, for the Court: SUGG, Justice

text:
    Darlene ANDERSON v. STATE of Mississippi.
    No. 48890.
    Supreme Court of Mississippi.
    June 1, 1976.
    Johnson & Walker, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Ben H. Walley, Asst. Atty. Gen., and Pete Cajo-leas, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before PATTERSON, ROBERTSON and SUGG, JJ.
   PATTERSON, Presiding Justice, for the Court:

Darlene Anderson and Princess Smith were jointly indicted in the Circuit Court of Forrest County for the robbery of James Fluker by placing him in fear of immediate injury by exhibiting a deadly weapon. Princess Smith was granted a severance and was tried on Thursday, March 13, 1975. The jury found her guilty and she was sentenced to thirty years in the penitentiary. The following Monday, March 17, 1975, Darlene Anderson was tried, convicted and sentenced to sixty years in the penitentiary. She contends on appeal that she was deprived of due process of law because of events which transpired during the course of trial affecting her attorney.

The case is unique, or at least unusual, requiring the facts to be set forth in some detail for a proper understanding of the situation presented to this Court.

Darlene Anderson and Princess Smith were both represented in their trials by Theodore J. Lawyer, an attorney of Gulf-port, Mississippi, who had been engaged in the practice of law for approximately two years at the time. After Princess Smith was convicted, she was returned to jail, but anticipated appealing her case since her attorney had been retained for both trial and appeal purposes.

Darlene Anderson’s trial began the Monday following Princess Smith’s conviction of the previous week. As mentioned, she was also represented by Theodore Lawyer.

James Fluker, a witness for the state, testified that on the morning of February 6, 1975, a “lady” came to the Pineview Apartments where he was employed and inquired whether there were any apartments for rent. When informed there were none, she requested change for $1 which was made for her. She then purchased a soft drink from a machine and departed, but fifteen or twenty minutes later “three of them came back . . . together” with masks covering their faces.

Fluker described the first as wearing a ski mask, the next wearing a stocking cap over her face and carrying a shotgun. The other person was not described. The stocking-capped individual directed the first to tie him up, “pumped” the shotgun and ordered him into the bathroom. After a few moments, he was able to free himself and ascertain that the intruders had left the apartment.

He went to the rear of the building where he saw the fleeing intruders. He was also seen by them as one exclaimed “there he is” and pointed the shotgun at him, and he “jumped back behind the building.” He described the getaway vehicle and stated that $573 of his employer’s money was taken in the robbery.

On cross-examination by the defense attorney, he testified that the “second individual” had on a stocking cap mask and carried a shotgun. Further responding, he stated that he could not make a positive facial identification of the person wearing the stocking cap. He conceded his identification of the defendant rested solely on physical characteristics of height, size and weight. He also testified, on questioning, that during his observation he was terrified and concerned for his life. When asked the color of the stocking cap, he replied: “I guess it might have been dark brown or grayish.”

Having described the defendant’s wearing apparel on direct examination, he was asked on cross-examination whether he had not testified during the trial of Princess Smith that he could not identify any clothes the individual holding the shotgun was wearing on the occasion. He responded:

She had the clothes on that — when I identified her at the police station, just the top was the same as the other part —I could just see the top of her pants. It looked like to me it was maroon; it might not have even been maroon.

Two police officers of Hattiesburg were next called by the state. The substance of their testimony was that they received notice of the robbery and promptly began an investigation which led them to a vehicle matching the description given by Fluker parked at a local motel where they arrested the appellant. These witnesses were briefly cross-examined by defense counsel.

Princess Smith was then called by the state and after she was sworn, defense counsel requested permission to approach the bench and there followed an off-the-record discussion between the court and counsel. Upon questioning by the state’s attorney, the witness identified herself as Princess Smith of Gulfport, Mississippi, and stated that she was twenty-two years of age. On February 6, 1975, she was in Hattiesburg with Darlene Anderson, James Black and Gloria Moody to rob the Farish Street apartments. She identified Darlene, the appellant, as one of the persons committing the robbery. Princess admitted that she asked for an apartment and for change to buy a “coke” and returned to the car and told “them” that she had seen the money; whereupon James Black told Darlene and “myself to go inside and we did this.”

She stated Darlene wore a brown coat and carried a shotgun at the time, continuing, “then she told me to tie him and I did so and told him to step in the bathroom” and “then the other girl, Gloria, that was with us, came in and got the money out of the drawer.” She described their departure:

We left and I think it’s Country Club Drive, and we stopped and took the gun and money bags and the two coats and put them in the woods and he taken the tag off the car and threw it to the left.
Q. What did you do with the masks ?
A. The masks was throwed outside, too.

After they came to the motel and Princess left, not seeing Darlene until they were both in jail where they engaged in the following conversation, according to Princess:

[District Attorney]
Q. What, if anything, did she tell you about ?
A. Well, after the lawyer had came, she told me—
Q. What lawyer are you talking about? Her attorney?
A. Ted Lawyer.
Q. O.K.
A. She said she had gave him the money.
Q. She had what ?
A. Gave him the money, She had the money—
Q. Wait a minute, let me get it straight. She had given the money to who?
A. To Ted Lawyer.
Q. Is that her attorney ?
A. Yes.
Q. All right. Then, what else did she tell you ?
A. That was all, and I talked to him and told him where the stuff was.
Q. Wait, wait, you told him what?
A. Where the shotgun and the two coats and money bags was.
Q. Who did you tell that to ?
A. Well, they had, — James Black had already told him that.
Q. You’re speaking about Ted Lawyer?
A. Yes.
Q. All right. Then what happened?
A. He told me not to say anything because he was going to remove all of that and there wouldn’t be any evidence against us.
Q. Who told you that ?
A. Ted Lawyer.
Q. Have you been promised anything to testify here today ?
A. No.

On cross-examination she was asked by Lawyer, her attorney:

Q. Princess, you were tried on Thursday, is that correct ?
A. Yes.
Q. Jury found you guilty, is that correct?
A. That’s right.
Q. What was the sentence of the Court ?
A. Thirty years, State Penitentiary.
Q. Did this attorney defend you at that trial?
A. Yes.
* * * * íf* *
Q. Now, you say that Darlene Anderson told you something about some money ?
A. Yes.
Q. And, everything here is what she told you, is that correct ?
A. Yes.
Q. You didn’t see anything personally, did you ?
A. No.
Q. Of course, you recall this attorney, you asked this attorney to represent you, is that correct ?
A. Yes.
Q. And, did this attorney represent you?
A. Yes.
* * ifc >|C 5jC *
Q. And, did you sign a contract or retainer for me to represent you on appeal?
A. Yes, I did.
* * * * * *
Q. Now, who asked you to come here and testify today?
A. No one.
***** *
Q. Do you remember telling me that you were unhappy because Darlene and yourself was indicted and James Black and this Gloria Moody you mentioned were not indicted ? Do you remember telling me that ?
A. Yes, I remember telling you that.
Q. And, you said that they were going to have to go and serve time in the Penitentiary along with you ?
A. No, I didn’t put it that way. I said it was only right for them to serve time also because they were in it just as much as I was, or maybe more.
Q. Now, did you see me go out in the woods and remove the evidence ?
A. No.
Q. Do you know to your knowledge whether this lawyer removed any evidence ?
A. I only know what you told me.
BY HON. REX K. JONES: [District Attorney]
Let her go ahead and explain what you told her, then. Go ahead and explain your answer.
* * * * * *
A. No, you told me not to say anything, that you were going to remove the evidence and that it wouldn’t be any against me and shortly later you told me that you had burned it.
BY HON. REX K. JONES:
That he’d what ?
A. Burned it.
[Defense Attorney, Continuing]:
Q. Well, did you see this attorney burn any evidence ?
A. I couldn’t. I was in jail. I can only go by what you told me.
Q. When did I tell you something like this?
A. When you came to see us again.
Q. When was that ?
A. In the county jail.
Q. Who did I say that in the presence of, do you know ?
A. I think it was Darlene and Gloria.
Q. Now, what have you been promised, if anything to testify ?
A. I haven’t been promised anything.

This concluded the state’s case and after a recess, the defendant also rested. The jury returned a verdict of guilty.

Theodore Lawyer was permitted to withdraw from the case and Attorney John Walker became Darlene Anderson’s counsel on a motion for a new trial. Attorney Fred Banks, Jr. represented Attorney Lawyer who was then under indictment in the Circuit Court of Forrest County. Lawyer was called as a witness, over the state’s objection that he was an officer of the court and his testimony could endanger future cases. However, he was permitted to testify within the following limitations :

...in a pre-hearing conference a limitation was placed on Mr. Lawyer’s testimony and he is called solely for the purpose of testifying to the facts previously alleged in an affidavit supplied' with this motion for new trial and with the understanding that there will be a limitation on cross-examination and direct examination which would prevent Mr. Lawyer from having to testify as to any facts relative to the prosecution which he faces, he is allowed to take the stand.

Lawyer testified that he had no prior knowledge that Princess Smith would testify for the state during Darlene Anderson’s trial and that her testimony had the following effect:

. . . I was completely surprised. I was shocked that she was called to testify on behalf of the State in that I had not counselled with her since she was sentenced and prior to the time of Darlene Anderson’s trial. My mind and my thoughts became disoriented. I was completely flustered by the testimony and it rendered me — those conditions rendered me incapable of conducting any type of effective and organized defense for my client, Darlene Anderson.

When asked whether he objected to Princess testifying, he responded:

I made an objection asking the Court to allow me to voir dire the witness before she testified.

This point was pursued on cross-examination :

Q. You were given permission of talk to Princess Smith, were you not, when the Court recessed at this time ? Do you recall this in the trial?
A. No, I was not; absolutely not.
Q. Do you not recall the jury being removed at that time and going into the room?
A. No, I recall the jury leaving vaguely, but what I do recall is the Judge allowing me to speak with my client, Darlene Anderson, and I did try to speak with her. And I recall that—
Q. But, I mean the Court gave you permission then to discuss this matter with your client and gave you time in which to discuss the matter with your client at the time the matter came to you.
A. The matter of the voir dire ?
Q. The matter of discussing this with your client.
A. The State had rested when I was allowed to discuss the matter with my client, to my best remembrances, I’ll say.

The motion was overruled. It was the court’s opinion that the defendant’s attorney “demeaned himself as any other attorney or officer of the court would have done under a similar circumstance” and “had a timely motion been filed by the attorney for the accused, that may have been another matter.”

This opinion does not relate to Darlene Anderson’s guilt or innocence since such properly rests with the jury. It is directed solely to the question of whether the appellant was accorded due process of law, a fair trial, under the circumstances above. We are of the opinion that citation of authority is not needed to reach the conclusion that she did not. When the attorney representing the appellant was branded a conspirator to destroy the evidence of armed robbery by Princess Smith, also his client, his effectiveness as an attorney ceased.

After being labeled a criminal, his cross-examination was directed to his own exoneration and not to the interest of his client. The testimony discloses that Lawyer’s cross-examination of Fluker was about as effective as could be expected. Fluker’s ability to recall the wearing apparel of Anderson was put in doubt, as was his ability to identify the appellant by her physical characteristics. The cross-examination of the police officers was brief and nonproductive since the defendant really had nothing to gain from it.

Thereafter the cross-examination of Princess Smith — every question — was directed to the attorney’s benefit. Moreover, defense counsel’s summation to the jury was devastated, in our opinion, before it ever began because of the criminal shadow placed upon defense counsel. It presented from the jury's viewpoint, we think, the argument or plea of a thief for a thief. Lawyer’s prestige as an attorney, the respect he held as an officer of the court, had been removed by his client’s unanswered and undenied testimony. It was unaided even by an instruction that it be considered with great caution and suspicion as accomplice testimony so that whatever words were used in summation of Anderson’s defense had to fall upon deaf ears. In any event, the interests of Theodore Lawyer and his clients, Darlene Anderson and Princess Smith, had been thrust into an area of conflict so real and apparent that there was no way to salvage the trial other than by declaring a mistrial.

We conclude the court erred by not directing a mistrial on its own motion. Our jurisprudence requires nothing less and the constitution commands it. Art. 3, § 26, Miss. Constitution (1890) and Stewart v. State, 229 So.2d 53 (Miss.1969).

REVERSED AND REMANDED.

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

SUGG and WALKER, JJ., dissent.

SUGG, Justice

(dissenting):

I dissent because a conviction should not be reversed simply because an attorney becomes “completely flustered” by the testimony of a witness. When the state questioned the attorney’s former client about her participation in the robbery for which defendant was being tried, no contemporaneous objection was made when the witness charged her attorney with destroying evidence. Neither was a motion for a mistrial made.

Following defendant’s conviction, a motion for a new trial was presented by another attorney. No suggestion was made in the motion for a new trial and none is made on appeal that the defendant had any defense whatever; therefore, I would affirm.

WALKER, J., joins in this dissent.

      . Testimony concerning the discussion is referred to on the motion for a new trial.


text:
    MUTUAL OF OMAHA INSURANCE COMPANY v. Covert D. BRELAND.
    No. 48724.
    Supreme Court of Mississippi.
    June 1, 1976.
    Hobbs & Dorsey, Jackson, Bryant & Stennis, Gulfport, for appellant.
    Roberts, Young, Stelly & Rosetti, Gulf-port, for appellee.
    Before GILLESPIE, C. J., and WALKER and BROOM, JJ.
   AFFIRMED.


text:
    In re Last WILL and Testament of Pearlie Pigram PICKETT. Sam E. DIXON v. Henry PICKETT.
    No. 48708.
    Supreme Court of Mississippi.
    June 1, 1976.
    John S. Holmes, Yazoo City, for appellant.
    Billy J. Gilmore, Lexington, for appellee.
    Before INZER, P. J., and SUGG and BROOM, JJ.
   AFFIRMED.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Lewis E. PAGE, Jr.
    No. 57256.
    Supreme Court of Louisiana.
    May 17, 1976.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Walter L. Sentenn, Jr., Asst. Dist. Atty., for plaintiff-relator.
    Peter J. Castaño, New Orleans, for defendant-respondent.
   CALOGERO, Justice.

This case concerns the appropriate jurisdiction for a district attorney’s filing of a petition to have a person declared a habitual offender under the Motor Vehicle Habitual Offender Law, R.S. 32:1471 et seq. That law, passed by the Legislature in 1972, provides for an order by a court, after determination that a driver is a habitual offender, directing him not to operate a motor vehicle on Louisiana highways, and requiring him to surrender his license to operate a motor vehicle for a minimum period of five years. The act describes an habitual offender as one who has accumulated prescribed numbers of particular, separate and distinct driving offenses committed during a five year period. Should the court adjudge him a habitual offender, he may appeal the judgment as he would other civil actions. But so long as a court judgment prohibiting operation remains in effect, he may not drive a motor vehicle on the public highways and, if he does, he may upon conviction of same, be imprisoned for not less than one nor more than five years. R.S. 32:1480 (A).

Acting under the authority of this Act, the district attorney of Orleans Parish filed a petition charging Lewis E. Page, Jr., because he had been found guilty of driving while intoxicated on three occasions (once in September of 1972 and again in July and December of 1974) and had forfeited bond on a charge of driving with license suspended (in 1974), with being a habitual offender under the Motor Vehicle Habitual Offender Law. Because the Act directs the district attorney to file the petition “in the criminal district court for the parish wherein such person resides” R.S. 32:1474, the district attorney of Orleans Parish filed the petition in the Criminal District Court for Orleans Parish, the parish of defendant’s residence. Defendant thereupon filed a motion to quash the petition on the ground that the Criminal District Court for Orleans Parish (referred to hereinafter as the Criminal District Court) had no jurisdiction over the proceeding, which, he asserted, was a civil matter. The trial judge granted the motion to quash and we thereupon granted writs upon the state’s application. 332 So.2d 432 (La.1976).

If this lawsuit is indeed a criminal matter, then the Criminal District Court certainly has jurisdiction. In that instance, not only is the matter generally within the province of the Criminal District Court, but also the Act has specified the Criminal District Court as the forum in which to bring the action. If the lawsuit is a civil matter, however, the Act may or may not (depending, possibly, upon the margin of the vote of the Legislature, as will be discussed hereinafter) be constitutionally sufficient to place jurisdiction in the Criminal District Court. Thus the first question we must resolve is whether a license revocation proceeding under the Motor Vehicle Habitual Offender Act is a criminal or civil matter.

Factors which militate in favor of the conclusion that the proceeding is civil are these:

1) The Act directs that the petition be filed, not in the parish where the offenses were committed, as would be the case in a criminal action (La. Const, art. I, § 16 (1974); C.Cr.P. art. 611) or a criminal enhancement proceeding [R.S. 15¡529.1(D)], but in the parish of the defendant’s residence.
2) An appeal taken from any final action or judgment entered under the provisions of the Act is in the same manner and form as appeals in civil actions. R.S. 32:1478.
3) The fundamental purpose of the Act is to promote highway safety by denying driving privileges to habitual traffic law offenders (32:1471), a distinctly non-criminal objective.

One purpose of the Act is, of course, to discourage repetition of criminal acts, but this alone is not sufficient to give the Act a penal character since deterrence of wrongful criminal conduct while often an object of criminal statutes may be an objective of a regulatory statute as well. See McDermott v. Wisconsin, 228 U.S. 115, 33 S.Ct. 431, 57 L.Ed. 754 (1913); United States v. Kordel, 164 F.2d 913 (7th Cir. 1947), aff’d, 335 U.S. 345, 69 S.Ct. 106, 93 L.Ed. 52 (1948).

There are, of course, features of the Act not now before us which are penal, or criminal. For instance, 32:1480 may result in imprisonment for driving while classified as a habitual offender. However, this is an independent feature of the Act separate and distinct from the revocation proceeding.

The two appellate courts in this state which have reviewed the statute have determined that the revocation proceeding is indeed a civil action. State v. Free, 321 So.2d 50 (La.App. 3rd Cir. 1975) writs refused, 325 So.2d 272; State v. Love, 312 So.2d 675 (La.App. 2nd Cir. 1975), writs refused, 317 So.2d 627. In State v. Love, supra, at 677, the Second Circuit held that the revocation proceeding was a civil matter for these reasons:

“The Motor Vehicle Habitual Offender Law authorizes both civil and criminal proceedings against a person related to his operation of a motor vehicle. The initial suit to have a person declared an habitual offender and to revoke his license is a civil matter. It does not involve loss of liberty or threat of incarceration, but its object is the protection of the public in removing from the highways a dangerous driver. R.S. 32:1474 — 78. On the other hand, two additional proceedings authorized by R.S. 32:1480 and 1481, which may result in enhancement of statutory penalties and imprisonment for driving while classified as an habitual offender, are clearly criminal actions. A previous civil declaration of habitual offender status is essential to the success of any subsequent criminal proceeding, but such prosecutions are necessarily separate and distinct from the civil revocation proceeding.”

The Supreme Courts of two other states which have passed habitual traffic offender laws similar to ours have held that the revocation proceedings under their acts are civil actions. State v. Bowles, 113 N.H. 571, 311 A.2d 300 (1973); State v. Perreault, 113 N.H. 588, 311 A.2d 303 (1973); Huffman v. Commonwealth, 210 Va. 530, 172 S.E.2d 788 (1970). See Ferguson v. Gathright, 485 F.2d 504 (4th Cir. 1973) cert. denied 415 U.S. 933, 94 S.Ct. 1447, 39 L.Ed.2d 491, 26 Wash. & Lee L. Rev. 271 (1969).

Furthermore, proceedings to revoke a local license to drive a motor vehicle are generally regarded as civil proceedings. See Commonwealth, Department of Transportation, etc. v. James, 6 Pa.Cmwlth. 493, 296 A.2d 530 (1972); State, Department of Highways v. Normandin, 284 Minn. 24, 169 N.W.2d 222 (1969); Ziemba v. Johns, 183 Neb. 644, 163 N.W.2d 780 (1968); Bolio v. Malloy, 126 Vt. 424, 234 A.2d 336 (1967); Haswell v. Powell, 38 Ill.2d 161, 230 N.E.2d 178 (1967) app. dismissed 390 U.S. 712, 88 S.Ct. 1408, 20 L.Ed.2d 250; Gottschalk v. Sueppel, 258 Iowa 1173, 140 N.W.2d 866 (1966); Honeycutt v. Scheidt, 254 N.C. 607, 119 S.E.2d 777 (1961).

License revocation procedures, even those following conviction for a specific traffic violation, have been considered civil actions by Louisiana courts. Under La.R.S. 32:667, 668 which provides for suspension of license after refusal to take a blood alcohol test, the revocation procedure is unquestionably civil. Culp v. Department of Public Safety, 288 So.2d 680 (La.App. 4th Cir. 1974); Gardner v. State, Department of Public Safety, 198 So.2d 184 (La.App. 3rd Cir. 1967). Moreover, the revocation of license under R.S. 32:414 also constitutes a civil sanction, in certain circumstances, against motorists who are convicted of driving while intoxicated. Harrison v. State, Department of Public Safety, 298 So.2d 312 (La.App. 4th Cir. 1974).

Although due process is required before a driver’s license may be revoked, Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Smith v. Department of Public Safety, 254 So.2d 515 (La.App. 4th Cir. 1971), it does not necessarily follow that the revocation of a license constitutes criminal punishment. On the contrary, the revocation of one’s license to operate a motor vehicle under the habitual offender law does not constitute punishment. Rather, it is a civil measure considered necessary by the Legislature to adequately provide for public safety. It is a finding by a court that the person in question is no longer fit to enjoy the privilege of driving a motor vehicle. The result of the finding is to deny the person the right to drive on the public highways of the state; he suffers no loss of liberty, no incarceration nor fine.

We hold therefore that the district attorney’s petition to have defendant declared an habitual offender under the Motor Vehicle Habitual Offender Law, with the attendant minimum five year revocation of driving privileges, is a civil proceeding. We now turn to the problem of whether the Criminal District Court for the Parish of Orleans was properly vested with jurisdiction of this civil matter.

The Act in question was passed by the Legislature in 1972 while the Louisiana Constitution of 1921 was in effect. Under the 1921 Louisiana Constitution the Civil District Court for the Parish of Orleans was vested with “the same exclusive original civil jurisdiction as that of District Courts throughout the State . . . .” La.Const. art. VII, § 81 (1921). The original civil jurisdiction of the district courts alluded to in Section 81 was original jurisdiction “in all civil matters.” La. Const, art. VII, § 35 (1921). Under that same 1921 Louisiana Constitution the Criminal District Court was vested with “exclusive jurisdiction of the trial and punishment of all crimes, misdemeanors and offenses committed within the parish of Orleans, the jurisdiction of which is not vested by this Constitution in some other court.” La.Const, art. VII, § 83 (1921). There was, however, another provision of the 1921 Constitution which authorized the Legislature “by two-thirds vote of all members elected to each house” to change, alter or repeal any or all of the constitutional provisions covering the Criminal District Court for the Parish of Orleans.

For purposes of this opinion (and since it does not alter the result herein), we will assume that the Legislature, by a two-thirds vote of all members elected to each House, could by virtue of Article VII, Section 87, have vested civil jurisdiction in the Criminal District Court. We were prompted to grant this writ by the foregoing assumption and by our belief that the 1972 Act here at issue was passed by the requisite two-thirds vote of each House in the Legislature. The state in brief contends that the Act therefore successfully enlarged the jurisdiction of the Criminal District Court to include jurisdiction over civil license revocation proceedings. Upon our present review we discover that the Act passed the Senate 35-0 and the House 65-3. Inasmuch as the House was comprised of 105 members in 1972 it would have taken 70 votes in the House to constitute a two-thirds vote “of all members elected to each House.”

Thus, even if jurisdiction over a civil matter might have been vested by the Legislature in the Criminal District Court [see Footnote 6 above], the Act did not pass by the requisite margin. The Act, therefore, could not constitutionally have vested the revocation proceeding in the Criminal District Court as the Legislature had attempted.

Inasmuch as the jurisdiction of the Criminal District Court was unchanged on the effective date of the 1974 Constitution, La.Const. art. V, § 32 (1974) and since the legislation here at issue was not re-enacted after January 1, 1975, (the effective date of the 1974 Constitution), the Criminal District Court today does not have jurisdiction over the civil revocation proceeding authorized by R.S. 32:1471 et seq.

The judgment of the trial court in granting motion to quash was therefore correct.

Accordingly, for the above reasons the judgment of the district court is affirmed.

      . R.S. 1472(A)(1) provides that the offenses be three or more described offenses of a given serious nature, falling within seven categories, and 32:1472(A) (2) provides alternatively for:
      “Ten or more convictions of separate and distinct offenses involving moving violations singularly or in combinations, in the operation of a motor vehicle which are required to be reported to the Department of Public Safety and the commission whereof authorizes the department or authorizes a court to suspend or revoke the privilege to operate motor vehicles on the highways of this state for a period of thirty days or more for each offense and such convictions shall include those offenses enumerated in Paragraph (1) when taken with and added to those offenses described.”

      . R.S. 32:1478 provides:
      “An appeal may be taken from any final action or judgment entered under the provisions of this chapter in the same manner and form as ' áppeals in civil actions.”

      . For purposes of this Act, a non-vacated forfeiture of bail or collateral deposited to secure a defendant’s appearance in court is equivalent to a conviction. R.S. 32:1472(0).

      . We- also granted writs in the similar ease of State v. Williams, our docket decided this day. The two eases were consolidated for our review.

      . But see 36 La.L.Rev. 852 (1976).

      . Article VII, § 87 of 1921 Constitution provided that:
      “The Legislature may, after January 1st, 1924, by a two-thirds vote of all members elected to each house, change, alter or repeal any or all of the above provisions covering the criminal courts of the City of New Orleans and parish of Orleans.”
      For two cases which discuss and apply this provision, see State v. Brady, 310 So.2d 593 (La.1975); Sciambra v. Edwards, 270 So.2d 167 (La.App. 1st Cir. 1972), writs refused, 273 So.2d 41.

      . It is not at all certain that this is so. Constitutional authority for the Legislature to alter, amend or repeal constitutional provisions “covering the criminal courts of the City of New Orleans and the parish of Orleans” does not necessarily, by inference or otherwise, authorize the Legislature in the exercise of this authority to tamper with the exclusive original jurisdiction of the Civil District Court vested by the independent constitutional directive of Art. VII, § 81.

      . La.Const. art. Ill, § 5 (1921) provides that the House of Representatives “shall be composed of one hundred five (105) members, unless increased as herein provided.” The 1972 Official Journal of the Proceedings of the House of Representatives of the State of Louisiana, pp. 3-4, confirms that there were 105 members of the House in 1972.

      . Under the 1974 Constitution, jurisdiction relative to the Criminal District Court and the Civil District Court for the Parish of Orleans apparently may be changed by a majority vote in the Legislature. See La. Const, art. V, § 32 (1974) which states that “the following courts and officers in Orleans Parish are continued subject to change by law; the civil and criminal district court; ...."


text:
    STATE of Louisiana v. Joseph WILLIAMS.
    No. 57393.
    Supreme Court of Louisiana.
    May 17, 1976.
    John M. Lawrence, New Orleans, for defendant-respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Robert D. Long, Jr., Louise Korns, Asst. Dist. Attys., for plaintiff-relator.
   CALOGERO, Justice.

Acting under the authority granted to him by the Motor Vehicle Habitual Offender Law, R.S. 32:1471 et seq, the district attorney for Orleans Parish filed a petition in the Criminal District Court for the Parish of Orleans alleging that Joseph Williams had become a habitual offender as defined by that statute. The petition was prompted by a report he had received from the Louisiana Department of Public Safety which revealed that Williams had been convicted of driving while intoxicated in September, 1973 and July, 1974, and of driving whole under license revocation in April, 1975. The petition was allotted to the Magistrate Division of the Orleans Parish Criminal District Court. Defendant Williams filed a motion to quash and, after a hearing, the Magistrate granted the motion and dismissed the petition against Williams on the grounds that the Criminal District Court had no jurisdiction of the license revocation proceeding because it was a civil matter. The state applied for writs to this Court which were granted, and the case was consolidated with State v. Page, 332 So.2d 427 (La.1976) No. 57,256, decided this day.

The state argues to this Court that the motion to quash was improperly granted because the Criminal District Court did have jurisdiction over the revocation proceeding. We have decided this issue adversely to the state in State v. Page, supra, and we apply here that same holding for the reasons cited therein. The revocation proceeding is a civil matter, not within the jurisdiction of the Criminal District Court of Orleans Parish. See La. Const, art. VII, §§ 35, 81, 83 (1921).

Accordingly, the action of the trial judge in granting defendant Williams’ motion to quash is affirmed.